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N.Y. Court of Appeals Announces When Trial Commences for Timeliness of Pro Se Requests

by Ed Lyon

As most jurisdictions do from time to time as need dictates, they change or even completely overhaul appellate procedures, evidentiary rules, and various codes. In 1971, New York state adopted a new Criminal Procedure Law (“CPL”) to replace its aged Code of Criminal Procedure (“CCP”).

In February 2013, Raymond Crespo was charged with three serious felonies resulting from a bar fight. After resolving all dispositive motions on October 17, 2014, the trial court set a date for trial to begin. Crespo’s appointed attorney told the judge that Crespo wanted a new lawyer, or else he would refuse to attend the trial. The judge stated he would not appoint another lawyer; the case was too old to continue it any longer.

On October 23, jury selection began, and 11 jurors were chosen and sworn. Crespo remained absent by choice. The next day, he attended the trial as jury selection was concluding, invoking his right of self-representation prior to opening statements for the first time. The judge refused, pointing out it was too late to make such a request because the trial had already begun with the commencement of jury selection. Characterizing Crespo’s antics as “simple manipulation,” the judge excluded him and continued with jury selection. Crespo was convicted of two of the three charges, and he appealed.

The Appellate Division reversed, citing the seminal right of self-representation case People v. McIntyre, 324 N.E.2d 322 (N.Y. 1974), which was based on the state’s now-defunct CCP. The People sought formal appeal based on the current CPL, which sets the onset of a trial at the beginning of jury selection as opposed to the CCP’s onset at the beginning of a trial’s opening statements. Appeal was granted.

The Court of Appeals observed that both the U.S. Constitution and New York State Constitution guarantee the right of self-representation. However, the right is not absolute; timeliness of the request to represent oneself is a mandatory prerequisite.

The Court then began its analysis by clarifying that even though McIntyre was rendered in 1974—three years after the CPL was adopted—the conviction it ruled on occurred in 1971, when the CCP was still in effect. The Court explained the trial onset point differences under the two codes, iterating that under CPL 1.20 [11] a “jury trial commences with the selection of the jury,” which distinctly differs from the CCP’s opening arguments commencement point.

Commenting solely on the CPL’s construction, the Court explained “the statute we interpret is plainly stated and elevates the fundamental importance of jury selection as an integral part of the trial, a status not reflected in defendant’s argument or in the “distinctly archaic” CCP. It reasoned that trial commencement at jury selection is a “modern and commonsense view of the practical realities of a jury trial” because the questioning of prospective jurors constitutes a “material stage” of a trial, at which the defendant has a fundamental right to be present.

This conclusion is consistent with trial commencement determination under federal case law. For example, the Second Circuit has held that a defendant’s pro se motion made “just after the start of jury selection” is “made after the start of trial” and thus untimely. United States v. Stevens, 83 F.3d 60 (2d Cir. 1996).

It should be noted that the foregoing discussion applies only to jury trials. A nonjury trial “commences with the first opening address,” i.e., People’s opening statement. CPL 1.20 [11].

The Court of Appeals held “in conformity with the statutory scheme set forth in the Criminal Procedure Law, the jury trial has commenced when jury selection begins.” Therefore, Crespo’s request to proceed pro se after jury selection began was untimely.

Accordingly, the Court reversed the Appellate Division. See: People v. Crespo, 2018 N.Y. LEXIS 2941 (2018). 


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People v. Crespo



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