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Jury Trial Commences when the Selection of a Jury Commences: Application for Pro Se Representation Must Be Before Jury Selection to be Timely. 

Jury Trial Commences when the Selection of a Jury Commences: Application for Pro Se Representation Must Be Before Jury Selection to be Timely.

People v Crespo

2018 NY Slip Op 06849

New York Court of Appeals

Decided on October 16, 2018



Whether a defendant’s request to proceed pro-se near the conclusion of jury selection is considered untimely where the defendant, on the record, voluntarily absented himself from all trials leading up to jury selection and the beginning of jury selection then voluntarily showed up for the conclusion of jury selection with the request to proceed pro-se.



The courts held that a defendant’s request to proceed pro-se is untimely when made near the end of jury selection because the statutory scheme set forth in the Criminal Procedure Law says that once jury selection begins, the jury trial has also begun. Therefore, the defendant’s decision to make a request to proceed pro-se part of the way through the jury selection was seen as untimely.

Dissenting Opinion

Judge Rivera found that a defendant’s request to proceed pro-se is timely any time before the prosecution’s opening statement. While the Court recognizes that a trial has a multitude of components, the dissent points out that the core of a trial is “the actual trial of the defendant by the jury” which can only occur after the jury has been selected. Because the defendant interrupted jury selection to request proceeding pro-se, he made a timely request.



In February 2013, Raymond Crespo charged with attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the third degree. In October 2014, the trial court denied a motion to suppress the knife recovered from the scene of the crime and the bloodstained clothes from the defendant after his arrest, they also informed the parties that the trial would begin the following week.


Crespo immediately expressed dissatisfaction with his counsel and stated that he did not wish to be present until he received new counsel. The court informed him that he was free to hire another attorney but made clear that the case had gone on for far too long and could no longer be delayed. They additionally informed him that it would be to his benefit to attend the trial and, if he chose not to attend, the trial would commence without him. The defendant refused to attend and was marked as “voluntarily absenting himself.”

The matter was adjourned until the following week. Jury selection commenced in the defendant’s absence. The following day, the defendant appeared to court voluntarily and, for the first time, asked to represent himself. The court rejected this pro-se request, stating that he was “too late to make that request now in the middle of trial.” The defendant pressed further, making clear again that he was not satisfied with his assigned counsel. Crespo confirmed that his intent was to disrupt the court saying “he is not my lawyer” as a result of the court’s refusal to allow him to proceed pro-se. The court then excluded the defendant and branded his request to proceed pro-se as “simple manipulation.” All parties except the defendant completed jury selection and proceeded to opening statements.



The Court of Appeals found that a defendant’s request to proceed pro-se is considered untimely when it is made after jury selection has commenced because the Criminal Procedure Law lays out a statutory scheme which says that the jury trial has begun once jury selection has begun. While defendant’s request was denied in part because of his outburst, the Court noted that “a pro-se application is timely interposed when it is asserted before the trial commences.” Once this point has passed, the Court stressed that the defendant’s right to proceed pro-se is “severely constricted and will be granted in the trial court’s discretion and only in compelling circumstances” (36 NY2d at 17). Because the jury had not yet been fully selected when defendant made the pro se application, the motion to proceed pro-se was not denied as untimely in the trial court and on appeal was determined to be “unequivocal and timely having been interposed prior to the prosecution’s opening statement.”

The Court of Appeals reasoning that the commencement of jury selection marked the start of the trial rested on the Antommarchi case and on Criminal Procedure Law §1.20(11). Although the wording of CPL1.20(11) is not clear as to whether the trial begins when jury selection is commenced or when jury selection has been completed. The Court of Appeals insists that the phrase “with the selection of the jury” means when jury selection commences.

The Court of Appeals relied on People v Antommarchi, where it was recognized that a defendant’s fundamental right to be present at material stages of the trial was violated by his or her absence during the questioning of prospective jurors during the impaneling of the jury. This shows that a material stage of trial would include the jury selection process where prospective jurors’ backgrounds and their ability to weigh the evidence” are explored (80 NY2d at 250). In Antommarchi, it was held that jury selection is a material stage of the trial. Similarly, the Court’s consistent interpretation of the commencement of trial in considering the timeliness of a pro-se request is kept with the purpose of adhering to CPL which, coupled with Penal Law, is “carefully designed as an integrated framework for the effective administration of criminal justice. CPL 1.20 (11) states that “a jury trial commences with the selection of the jury.

The Dissent

The dissent found that a defendant’s request to proceed pro-se is timely any time before the prosecution’s opening statement because “the actual trial of the defendant by the jury” is found to be the core and can only occur after the jury has been selected. In the McIntyre case, it was held that “a defendant in a criminal case may invoke the right to defend pro se 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” . Much like this case, McIntyre involved a post-jury selection pro-se request. The defendant asked to represent himself “after the jury had been drawn but not yet impaneled” (36 NY2d at 12) and the courts held that his request was timely because it was made before the prosecution’s opening statement.







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