People v. Spence Silburn


Issue before the Court: Whether the court denied appellant his right to represent himself by denying his request to proceed “pro se with standby counsel”; and whether appellant was required to provide pretrial notice to the prosecution of his intent to introduce his bipolar disorder diagnosis in his challenge the voluntariness of his statements to police.


Held: The court did not improperly deny appellant’s request to proceed pro se because that request was conditioned on proceeding with standby counsel; and defendant was required to give notice of his intent to introduce evidence of his psychiatric diagnosis.


CAL Observes: Resolution of the right-to-proceed pro se issue devolved to the question of whether appellant made an unequivocal request, when defendant also asked for the assistance of standby counsel. The majority ruled that, because appellant’s request to proceed pro se was followed shortly thereafter by a request for standby counsel, his request to proceed pro se was not unequivocal. Because the request was not unequivocal, the majority ruled, the trial court was justified in ignoring it without further inquiry, as a defendant in New York has no right to standby counsel. 


In his dissent, Judge Wilson highlights the unfairness of the majority’s ruling with a hypothetical taking place in a fast food restaurant, suggesting that a customer that orders a hamburger, and then later adds fries to his order, has placed an unequivocal request for a hamburger, regardless of whether fries are on the menu or otherwise unavailable (Judge Wilson returns to his hypothetical in his dissent in People v. Bailey, 31 N.Y.3d 144 (2018), using it to explore the unfairness of the majority’s application of the preservation rule there). At a minimum, any ambiguity in the order warrants a follow-up question of whether the customer still wanted the hamburger. In the right-to-proceed pro se context, Judge Wilson observed, “although a ‘lack of knowledge of legal principles’ and ‘unfamiliarity with courtroom procedures’ cannot bar defendants from exercising their right to self-representation, the majority’s decision uses those exact shortcomings to prevent [defendant] from requesting to exercise his right.” 


Judge Wilson’s conclusions about the unfairness of the majority’s application of preservation rules appear entirely correct. But one is left to wonder whether exploration of the precision required to preserve an issue by the majority of the current Court in a dissent, furthers the cause, or merely gives appellate prosecutors more precedent to rely upon.


Judge Rivera dissented separately to address the importance of standby counsel for vindicating a defendant’s right to proceed pro se, suggesting that the trial judge’s policy of denying all requests for standby counsel is a policy that should no longer be countenanced.