Opinion
August 10, 1987
Appeal from the Supreme Court, Queens County (Lakritz, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The record indicates that the trial court did not undertake a "sufficiently `searching inquiry'" of the defendant prior to allowing him to waive his right to counsel and proceed pro se (see, People v. Sawyer, 57 N.Y.2d 12, 21, rearg dismissed 57 N.Y.2d 776, cert denied 459 U.S. 1178; People v. McIntyre, 36 N.Y.2d 10, 17-18). It was therefore error for the court to grant the defendant's request to relieve his attorney and to represent himself.
Moreover, the court should not have allowed the defendant to continue to proceed pro se once the defendant demonstrated by his conduct that his intent was not to pursue his self-representation in good faith, but was rather to disrupt the trial proceedings. During jury selection, the defendant became abusive, then insisted on being removed from the courtroom. Immediately prior to the commencement of trial, he attempted to flee the courtroom, necessitating his manacling. After indicating that he wished to make an opening statement, the defendant feigned muteness. Despite this unruly conduct, the the court thereafter dismissed the defendant's appointed standby counsel based upon the defendant's objection to the latter's presence at the defense table. Following the direct testimony of the first prosecution witness, the defendant made statements directly to the jury rather than cross-examining the witness, and engaged in obstreperous conduct that required him to be bound, gagged and ultimately removed from the courtroom. The trial proceeded to its conclusion without the presence of either the defendant or his standby counsel in the courtroom and without any defense being presented.
A defendant has a constitutional right to proceed pro se (Faretta v. California, 422 U.S. 806), but may forfeit that right by engaging in disruptive or obstreperous conduct "calculated to undermine, upset or unreasonably delay the progress of the trial" (People v. McIntyre, supra, at 18), Further, part of the purpose of appointing standby counsel — which can be done even over the objection of the accused — is to have an attorney available to represent the accused in the event that termination of the defendant's self-representation becomes necessary (Faretta v California, supra at 835, n 46; People v. Sawyer, supra, at 22). Here, given the early warning signs of trouble, the court should not have dismissed the defendant's standby counsel, who could have taken over the defense once the defendant's conduct had forced the court's hand (cf., People v. Allen, 37 Ill.2d 167, 226 N.E.2d 1, cert denied 389 U.S. 907).
We have reviewed the defendant's remaining contentions and find them to be without merit. Mangano, J.P., Brown, Eiber and Harwood, JJ., concur.