Split NY appeals court upholds weapon conviction

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In a split vote, a state appeals court has affirmed a weapon conviction and rejected the defendant’s argument that he should have been permitted to represent himself.

Defendant Christopher Davis was convicted in October 2022 before Monroe County Court Judge Michael L. Dollinger of second-degree criminal possession of a weapon.

In a 3-2 vote, the Appellate Division of state Supreme Court, Fourth Department, affirmed the conviction.

“We reject defendant’s contention that County Court erred in refusing to suppress a handgun seized after it fell from a pocket of his sweatshirt while he was being pursued by a police officer,” the majority wrote.

“Based on defendant’s physical and temporal proximity to the scene of a reported armed robbery and the fact that defendant was walking with someone whose physical characteristics and clothing matched the description of one of the individuals purportedly involved in the robbery, we conclude that the police officer had a founded suspicion that criminal activity was afoot, justifying his initial common-law inquiry of defendant and his companion,” the majority ruled.

The court ruled that Dollinger properly determined that the officer had the requisite reasonable suspicion to pursue and detain Davis.

Davis also argued that Dollinger should have granted his request to proceed pro se.

“We reject that contention,” the majority wrote.

Before trial, Davis told Dollinger that he did not want his assigned attorney from the (Monroe County) Public Defender’s office to represent him.

“The court thereafter engaged defendant in an extensive colloquy, during which defendant repeatedly expressed that he did not want assigned counsel to defend him because he believed that assigned counsel, the court, the previous County Court judge, and the two prior public defenders assigned to the case were conspiring together to sabotage his defense in order to protect the arresting officer,” according to the decision.

When Dollinger said he would not assign a substitute counsel, Davis repeatedly said that he would represent himself “and not permit assigned counsel to continue to represent him if the court did not assign substitute counsel.”

The majority ruled that Davis did not unequivocally request to proceed pro se because he only asked to proceed pro se “as an alternative to receiving new counsel.”

The court found that Davis was attempting to leverage his right of self-representation to compel Dollinger to appoint another lawyer, according to the decision.

The court ruled that Davis made no “standalone request to proceed pro se.”

“Defendant further contends that the court abused its discretion in refusing to assign substitute counsel.  We reject that contention,” the majority wrote.

“Whether counsel is substituted is within the discretion and responsibility of the trial judge … and a court’s duty to consider such a motion is invoked only where a defendant makes a ‘seemingly serious request,’” the majority wrote.

“We conclude that the court properly balanced defendant’s request for substitute counsel against the need for the expeditious and orderly administration of justice and did not abuse its discretion when it ordered defense counsel to continue to represent him throughout the trial,” the majority wrote.

Justices John M. Curran and Craig D. Hannah voted to reverse and grant a new trial.

“We agree with defendant that County Court erred in denying his unequivocal requests to proceed pro se at trial without conducting the requisite searching inquiry to determine whether defendant was knowingly and intelligently waiving his right to counsel,” Curran and Hannah wrote.

“Here, unlike the majority, we conclude that defendant satisfied the condition that his request to represent himself be unequivocal,” they wrote.

Davis stated, “that he would prefer to represent himself and that he was comfortable doing so,” they wrote.

Davis also said: “I’d rather represent myself … and I’m making that clear,” Curran and Hannah noted.

“We conclude that at least one of defendant’s repeated and clear requests to represent himself was sufficiently unequivocal to require the court to conduct an inquiry to ensure that defendant’s waiver of counsel was made competently, intelligently, and voluntarily,” they wrote.

Curran and Hannah wrote that Davis should get a new trial.

“In denying defendant’s request, the court’s primary rationale was its perception that defendant did not have the necessary legal skills to represent himself,” they wrote.

But “ignorance of the law cannot vitiate an effective waiver of counsel as long as the defendant was cognizant of the dangers of waiving counsel at the time it was made,” they wrote.

“We agree with defendant that the court erred in denying his request for substitute counsel, because it failed to conduct a sufficient inquiry into his complaints regarding a serious breakdown in his relationship with defense counsel,” Curran and Hannah wrote.

“We conclude that defendant made the requisite seemingly serious request for substitute counsel based on a breakdown in communication and potential conflict of interest between defendant and defense counsel,” they wrote.

“Defense counsel’s comments to the court also indicated that the relationship between him and defendant had broken down.  He noted a near-total lack of communication between him and defendant,” the minority wrote.

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