New York Court of Appeals says defendant not entitled to represent himself after telling trial court he would "love to go pro se"

The New York Court of Appeals is a collegial court where the judges treat the lawyers cordially at oral argument and write opinions and dissents that are straight from the judicial opinion-writing handbook. This is the rare case where anger filters into a dissenting opinion.

The case is People v. Duarte, issued on February 15. The criminal defendant appeals from his conviction for forcible touching because, he claims, the trial court ignored his request to represent himself rather than proceed with his assigned counsel, whom he said was not paying attention to the case. During a colloquy with the judge on this issue, the defendant said, "I would love to go pro se." Yet the trial court did not allow defendant to proceed without a lawyer. The Court of Appeals votes 4-2 in holding that the record as a whole "did not reflect a definitive commitment to self-representation that would trigger a searching inquiry by the trial court."

The Appellate Term said this about the pro se issue:

Rather than being unequivocal, defendant's expression of a desire to represent himself came within the context of his complaints about his counsel. In any event, defendant abandoned his request by proceeding with the scheduled suppression hearing and subsequent trial without expressing any further desire to represent himself 

The Court of Appeals agrees with that analysis, but Judge Rivera dissents, joined by Judge Wilson. Rivera opens her dissent with defendant's quotation, "I would love to go pro se." She adds:

The import of these seven words is obvious: defendant wanted to represent himself. Under People v. McIntyre, 36 N.Y.2d 10 (1974), this clear and unequivocal statement required an inquiry by the court into defendant's request. Here, that inquiry could have been as brief as asking defendant a single question confirming that he meant what he said. Contrary to the majority's suggestion, defendant, unlike the court, did not need to say or do anything else. Once defendant invoked his constitutional right to self-representation, it was for the court to inquire whether his decision was made knowingly and intelligently. The court's failure to do so constitutes reversible error. Therefore, I dissent and would reverse and order a new trial. And in case there is any doubt as to my intent, let me repeat: I dissent, unequivocally and without hesitation.

In response to Judge Rivera's dissent, the majority says in a footnote that the relevant facts are disputed.  We consider the totality of the circumstances in reviewing these issues, including the defendant's conduct, manner of expression, demeanor, and word choices. "Whether defendant’s statement was an unequivocal request in the context of the Sixth Amendment is determined by the facts of the surrounding circumstances in the case as well as defendant’s conduct, including manner of expression, demeanor, and word choices. This record demonstrates that the court did not clearly deny the purported request, and neither defendant nor defense counsel sought any decision on that issue from the court at any point in the proceedings. Both factors suggest that the request was not considered genuine in the first instance by those present in the courtroom who heard the statement."