The People v. Raymond Crespo


Issue before the Court: When does a trial commence for purposes of the timeliness of a defendant’s motion to represent himself pro se at trial?


Held: A jury trial commences “when jury selection begins.”


CAL Observes: This is yet another blow to defendant’s rights, championed in a 4 to 3 decision by the Chief Judge herself, while displaying no hesitation to set aside 40 years of precedent to do so. 


In the seminal case of People v. McIntyre, 36 N.Y.2d 10 (1974), the Court of Appeals had established a three-pronged analysis for deciding when a defendant in a criminal case may invoke his or her constitutional right to proceed pro se : (1) the request must be unequivocal and timely asserted; (2) there must have been a knowing and voluntary waiver of the right to counsel; and (3) the defendant must not be engaged in conduct which would prevent the fair and orderly exposition of the trial. Id. at 17.  In McIntyre, the defendant made his request in the midst of jury selection, which was not determined to defeat his claim, and that has been the case in numerous cases since McIntyre


Judge DiFiore’s decision in Crespo dismisses the timeliness issue in McIntyre and other cases as dicta, and instead relies on a change from the old Code of Criminal Procedure definition of trial as beginning with opening statements, which was the law at the time of the trial here, to the newer Criminal Procedure Law definition under CPL 1.20[11], that the trial begins with “the selection of the jury.”  The Court concludes that this language means not after the jury is selected, but with the beginning of the selection procedure itself.  In Crespo, the defendant, who had requested but been denied new counsel repeatedly, had only first asked to represent himself pro se during jury selection. The Court thus held this to be an untimely request that was properly denied by the trial court.  


In a strong dissent, Judge Rivera, joined by Judges Fahey and Wilson, chided the Court for overturning well-established Court of Appeals precedent for virtually no reason other than that the composition of the Court has changed and they prefer a different rule. Judge Rivera opined that the plain meaning of the C.P.L. definition that a trial begins at the time of  “the selection of the jury” should mean after the jury has been selected, not during the process itself. The majority decision only causes further confusion as to when that begins: when the jurors are on their way up to the courtroom, in the hallway, or at some other point? 


The dissent notes that no actual problem was identified from the old rule; in fact, jury trials are occurring much less often these days than when McIntyre was decided, and the number of cases where this issue is implicated is small. Judge Rivera also delivers a nice lesson on Bluebook usage to Judge DiFiore as to the meaning of the citation “See” in footnote one of her dissent.


Judge Rivera also underscored the irony in Judge DiFiore’s use of People v. Antommarchi, 80 N.Y.2d 247 (1992), to limit a defendant’s constitutional right to appear pro se, when Antommarchi itself was intended to expand the rights of defendants.