People v. Hazen

Mahoney, P. J., (concurring).

Although I concur with the result reached by the majority in this case, I write separately for the purpose of distinguishing my reasons for rejecting one of the arguments raised by defendant. Defendant contends that he was denied his constitutional right to the effective assistance of counsel by the trial court’s failure to ascertain on the record that defendant appreciated the risks of self-representation. Under the facts of this case, in which defendant’s trial began while he was represented by counsel and he was then allowed to participate in his defense by cross-examining certain witnesses, I see no reason to rely, as does the majority, on conversations between the trial court and defendant at the time of his suppression hearing to satisfy the court’s obligation to warn defendant of the risks associated with self-representation. Any conversations involving proceedings prior to the trial itself are, in my view, irrelevant. Rather than proceeding with his defense at trial alone, defendant was allowed to join forces with his lawyer in the management and presentation of his defense. As such, defendant received all of the benefits of representation by counsel. Simply stated, he did not need to be warned of the risks associated with self-representation because he was not, in fact, proceeding in his defense at trial without counsel (see Bontempo v Fenton, 692 F2d 954, 960; contra United States v Kimmel, 672 F2d 720, 721).