People v. Armstrong

Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered December 1, 2009. The judgment convicted defendant, upon a jury verdict, of criminal possession of marihuana in the third degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of marihuana in the third degree (Penal Law § 221.20). We reject defendant’s contention that he was improperly permitted to proceed pro se. The record establishes that defendant made a “knowing, voluntary and intelligent waiver of the right to counsel” (People v Arroyo, 98 NY2d 101 , 103 [2002]). The record further establishes that defendant adhered to that waiver throughout the proceedings, despite the “ ‘searching inquiries]’ ” by County Court “to make him ‘aware of the dangers and disadvantages of self-representation’ ” and the fact that the court impressed upon him the value of trained trial counsel knowledgeable about criminal law and procedure (People v Providence, 2 NY3d 579 , 582 [2004]; see People v Crampe, 17 NY3d 469 , 481-482 [2011]). The court properly refused to permit standby counsel, while defendant was proceeding pro se, to conduct jury selection on defendant’s behalf (see People v Brown, 6 AD3d 1125 , 1126 [2004], lv denied 3 NY3d 657 [2004]). “A criminal defendant has no Federal or State constitutional right to hybrid representation . . . While the Sixth Amendment and the State Constitution afford a defendant the right to counsel or to self-representation, they do not guarantee a right to both . . .[, and] a defendant who elects to exercise the right to self-representation is not guaranteed the assistance of standby counsel during trial” (People v Rodriguez, 95 NY2d 497 , 501 [2000]).

By failing to move to dismiss the indictment within the five-day statutory period on the ground that he was denied his right to testify before the grand jury (see CPL 190.50 [5] [c]; People v Ray, 27 AD3d 1056 , 1057 [2006], lv denied 7 NY3d 761 [2006]), defendant thus waived his right to testify before the grand jury and his contention that the indictment should have been