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Criminal Procedure Law (“CPL”) § 730.30…cont

The trial under Indictment No. 1826–08 proceeded first. In September 2009, the defendant, represented by Mr. Moore, was found guilty after a jury trial held before this Court of one count of Assault in the Second Degree, two counts of Aggravated Criminal Contempt, and two counts of Endangering the Welfare of a Child. During the trial, the Court provided “real-time” reporting to the defendant, who communicated with his attorney through hand-written notes. The defendant was sentenced to a term of imprisonment of seven years, followed by three years post-release supervision on the Assault count to run concurrent with an indeterminate sentence of 2 1/3 to 7 years’ incarceration on the two Aggravated Criminal Contempt counts and one year jail on the two Endangering counts.

A Bronx Brain Injury Lawyer said that, thereafter, the prosecution of the defendant continued with respect to the pending robbery indictment. The Court continued to provide the services of a “real-time” reporter during calendar calls. Shortly after his conviction, the defendant requested new counsel with respect to that indictment, and the Court granted the application. That same day, the defendant advised the Court by letter that he wished to represent himself. When the Court asked the defendant to take some time to consider his request, the defendant agreed and, on a subsequent date, requested an adjournment for that purpose. On February 3, 2010, however, the defendant informed the Court that he was reiterating his request to represent himself.

According to the report of the neurological examination, the defendant’s inability to speak reflected a lack of effort, not a neurological dysfunction. When the examiner asked the defendant to speak, he did not move his palate, yet other testing demonstrated that he was capable of moving his palate. His purported inability to speak did not reflect cerebral dysfunction and his writing reflected normally functioning language centers. The defendant’s claim that he could not whistle was “inexplicable,” as whistling does not require language function nor vocal cord contraction. The examiner saw no evidence of dissymmetry or an inability to move his face. Finally, the examiner noted that although the defendant claimed to be deaf, he “intermittently responded to verbal commands and localized to voice.”

It is possible for a person to have a delusion that he or she cannot speak and hear. The doctor formed the opinion, however, that the defendant did not suffer from such a delusion based on several factors. First, a delusion is constant; yet, records the doctor reviewed in connection with his 2010 evaluation, including records of the Department of Corrections from Riker’s Island in 2008 and 2009 and Downstate Correctional Facility in 2010, include references to instances when the accident defendant spoke and appeared to hear. In addition, the defendant, who is in his 30s, denied ever having received any psychological treatment, yet, delusional disorders normally develop in a person’s late teens or early 20s. Moreover, the defendant’s claim that he could not hear or speak arose in the context of a serious legal situation, which suggests that the defendant is malingering. Finally, he has refused attempts to determine his physical ability to hear, which is more consistent with malingering than with a delusional disorder.

The issue in this case is whether a defendant forfeits his right to self-representation when he feigns an inability to speak and hear.

The Sixth and Fourteenth Amendments to the United States Constitution guarantee a defendant in a criminal trial not only the right to proceed with counsel, but also the right to proceed without counsel when the defendant clearly asserts his or her right in a timely manner and knowingly, intelligently and voluntarily chooses to do so The right to represent oneself, however, is not absolute. The right to self-representation does not include the “right to abuse the dignity of the courtroom,” nor the right to “engage in serious and obstructionist misconduct.” Put another way, the right to self-representation is not to be used “as a tactic for delay, for disruption, for distortion of the system, or for manipulation of the trial process.” These limitations are necessary because “even at the trial level the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.”

The New York State Constitution likewise recognizes a defendant’s right to self-representation. The right to self-representation under New York law is likewise not unlimited. Our Court of Appeals has held that a defendant must be permitted to invoke his or her right to self-representation, “provided (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues.” In elaborating on the third prong, the Court of Appeals wrote that a defendant may forfeit the right to self-representation by “engaging in disruptive or obstreperous conduct.” Further, “when a defendant’s conduct is calculated to undermine, upset or unreasonably delay the progress of the trial he forfeits his right to self-representation.”

Thus, for example, in a 2006 case decision the Appellate Division, First Department, upheld the trial court’s decision to revoke permission for a defendant to represent himself, where the “defendant had been disruptive, feigned mental illness, feigned physical ailments and repeatedly asked to leave the courtroom and claimed illness when summoned back.” Similarly, the Appellate Division, Third Department, held in a 2010 decision, that a trial court properly denied a defendant his right to self-representation, not only because he failed to waive his right intelligently, but also because a fair and orderly trial would not be feasible, in light of the defendant’s position that, among other things, he was entitled to absolute immunity because he was “Almighty God” and “King of the United States,” and that he had been born on a day the earth spun backwards. That Court also upheld the decision of another trial judge, who concluded that a defendant had forfeited his right to self-representation, when the defendant became belligerent and criticized the court, demanded a change of venue and stated that he would defend himself from his cell.

In the instant matter, as testified to by the doctor, the personal injury defendant has engaged in a course of conduct-feigning an ability to speak and hear-over the course of three years with the intent to delay the criminal proceedings pending against him. The defendant’s ruse has resulted in the delay of individual calendar calls because of the cumbersome accommodations, and his ruse has resulted in the delay of the start of trial, because it necessitated extensive examinations and an evidentiary hearing. Based on the prolonged length of the calendar calls, if the Court were to continue to provide “real-time” reporting and allow the defendant, representing himself, to communicate with the Court through hand-written notes, a trial that should last about two weeks could stretch to two months or beyond. Every stage of the trial-jury selection, opening statements, examination of witnesses, argument over evidentiary issues, charging conference, summations-would suffer from needless extreme delay.

If the defendant were not feigning his inability to speak and hear, the Court would be required to “reasonably accommodate” his needs through whatever means necessary, even if such means dramatically lengthened the duration of the trial. See Americans with Disabilities Act of 1990. Further, if the defendant caused a delay in the proceedings simply through unskilled lay participation, the Court would not be permitted to withhold the defendant his right to self-representation on that basis. The defendant’s conduct, however, is intentional and with no purpose other than to cause delay. This Court will not burden a jury, the witnesses, the lawyers or our over-stressed court system with a prolonged trial merely to accommodate a malingering defendant whose goal is to interfere with the efficient administration of his trial. McIntyre is clear: “When a defendant’s conduct is calculated to undermine, upset or unreasonably delay the progress of the trial he forfeits his right to self-representation.” Because this Court finds that the defendant’s conduct is calculated to unreasonably delay the proceedings and is preventing the fair and orderly exposition of the issues, it concludes that the defendant has forfeited his right to self-representation.

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This Court has advised the defendant that should he abandon his ruse before the trial commences, this matter can be revisited. The foregoing constitutes the Decision and Order of the Court.

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