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People v. Himko
Citations: 239 A.D.2d 661; 657 N.Y.S.2d 127; 1997 N.Y. App. Div. LEXIS 4942
Court: Appellate Division of the Supreme Court of the State of New York; May 8, 1997; New York; State Appellate Court
After stabbing two individuals, resulting in one death, the defendant faced a four-count indictment for two counts of second-degree murder, one count of attempted second-degree murder, and one count of first-degree assault in Binghamton, Broome County. Following a jury trial, the defendant was convicted of depraved indifference murder and attempted murder in the second degree. He received consecutive indeterminate sentences of 20 years to life for the murder conviction and 5 to 15 years for the attempted murder conviction, prompting an appeal. The appellate court affirmed the lower court's decision, first rejecting the defendant's claim that he should have been informed of his right to represent himself. While defendants have a constitutional right to self-representation, this right is only activated by an unequivocal and timely request. The defendant's complaints about his assigned counsel did not indicate a desire to proceed pro se, and thus, the court had no obligation to inform him of this right. The defendant also argued that the County Court erred by ruling on the prosecution's Ventimiglia request without a hearing, claiming this denied him the right to be present. However, since the defendant did not object to the absence of a hearing or request one, this issue was deemed unpreserved for review. While a hearing is generally preferred, the court accepted a written offer of proof from the prosecution detailing the evidence, which was deemed sufficient given the circumstances. Finally, the appellate court found no abuse of discretion or extraordinary circumstances that would justify a reduction of the defendant's sentence. The judgment of the lower court was therefore affirmed.