
    [741 NE2d 882, 719 NYS2d 208]
    The People of the State of New York, Respondent, v Jose Rodriguez, Appellant.
    Argued November 14, 2000;
    decided December 19, 2000
    
      POINTS OF COUNSEL
    
      Office of the Appellate Defender, New York City (Daniel A. Warshawsky and Richard M. Greenberg of counsel), for appellant.
    I. The trial court erred when it failed to consider Jose Rodriguez’s facially sufficient pro se speedy trial motions simply because Mr. Rodriguez’s counsel did not adopt them. (People v Santos, 68 NY2d 859; People v Renaud, 145 AD2d 367; People v Rivera, 159 Misc 2d 556; People v Costas, 248 AD2d 482; People v Long, 263 AD2d 357; People v Covington, 233 AD2d 169; People v White, 73 NY2d 468; People v Richardson, 4 NY2d 224; People v Garcia, 69 NY2d 903; People v Mirenda, 57 NY2d 261.) II. Jose Rodriguez was denied his fundamental right to counsel when he was produced at a pre-trial lineup in the absence of counsel pursuant to an ex parte court order, and the trial court’s erroneous admission of the resulting identification was not harmless beyond a reasonable doubt where the prosecutions’ entire cased hinged upon that identification. (People v Jackson, 74 NY2d 787; People v Coleman, 43 NY2d 222; People v Banks, 53 NY2d 819; People v Lloyd Winston G., 45 NY2d 962; People v Sugden, 35 NY2d 453; People v Coates, 137 AD2d 192, 74 NY2d 244; People v Smith, 120 AD2d 118.) III. The trial court denied Jose Rodriguez his fundamental right to present a defense when it refused to grant Mr. Rodriguez a short continuance to allow him to locate a material witness — a police officer — who would have testified that the sole witness implicating Mr. Rodriguez first reported the incident nine hours after she claimed it occurred, contrary to her assertions at trial that she reported the incident immediately. (Chambers v Mississippi, 410 US 284; People v Arroyo, 162 AD2d 337, 77 NY2d 947; People v Spears, 64 NY2d 698; People v Singleton, 41 NY2d 402; People v Foy, 32 NY2d 473; People v Brown, 78 AD2d 861.)
    
      Robert T. Johnson, District Attorney of Bronx County, Bronx (Allen H. Saperstein and Joseph N. Ferdenzi of counsel), for respondent.
    I. There was overwhelming evidence of defendant’s guilt. (People v Johnson, 57 NY2d 969.) II. Defendant’s claim that the trial court was required to “consider” his speedy trial motions even though his attorney did not adopt them is unpreserved for this Court’s review. Moreover, since defendant was not entitled to hybrid representation under either the Federal or State Constitutions, the nisi prius court was not required to consider the motions; in any event, the Court below’s implicit factual finding that the trial court had considered the motions is beyond the power of this Court to review. (People v Mercado, 91 NY2d 960; People v Renaud, 145 AD2d 367, 74 NY2d 734; People v Rivera, 159 Misc 2d 556; People v Gruttola, 43 NY2d 116; People v Lomax, 50 NY2d 351; People v Sinistaj, 67 NY2d 236; People v White, 73 NY2d 468, 493 US 859; United States v Einfeldt, 138 F3d 373, 525 US 851; United States v Mikolajczyk, 137 F3d 237; United States v Edwards, 101 F3d 17.) III. Where defense counsel conceded in his opening statement that the victim knew defendant “very very well,” the admission of testimony concerning the uncounseled lineup was harmless beyond a reasonable doubt. (People v Jackson, 74: NY2d 787; People v Coleman, 43 NY2d 222; People v Meadows, 64 NY2d 956; People v Crimmins, 36 NY2d 230; People v McMoore, 214 AD2d 893, 86 NY2d 798, 516 US 1096; People v Cross, 216 AD2d 407, 87 NY2d 900; People v Jackson, 74 NY2d 787.) IV. The trial court properly exercised its discretion when it declined to adjourn the trial to await the appearance of an unnamed and unidentified defense witness who would have provided testimony on a collateral matter. (People v Waters, 90 NY2d 826; Matter of Anthony M., 63 NY2d 270; People v Singleton, 41 NY2d 402; People v Foy, 32 NY2d 473; People v Jackson, 111 NY 362; People v Inniss, 83 NY2d 653; People v Aska, 91 NY2d 979; People v Guagenti, 264 AD2d 427, 94 NY2d 823; People v Chen Liu, 244 AD2d 352, 91 NY2d 924; People v Chin, 67 NY2d 22.)
   OPINION OF THE COURT

Ciparick, J.

In this criminal action, we are called upon to decide whether a trial court must consider the pro se speedy trial motions of a defendant represented by counsel. Because a criminal defendant is not entitled to hybrid representation, we refuse to prescribe any fixed rule for addressing pro se motions and conclude that the decision to entertain such motions lies within the sound discretion of the trial court. While we perceive no abuse of that discretion here, we nonetheless reverse defendant’s conviction on the ground that the concededly erroneous admission of a tainted lineup was not harmless beyond a reasonable doubt.

On May 23, 1994, at approximately 10:00 a.m., Eva Lopez was exiting the elevator of her apartment building when a man whom she had seen two or three times “[ojutside the building” robbed her at gunpoint. Approximately seven months later, Lopez identified defendant from a lineup. At the time of the lineup, defendant was serving a prison sentence on an unrelated conviction, requiring the People to obtain, ex parte, a Supreme Court order to secure defendant’s presence. Defendant was neither represented by counsel at the lineup nor advised of his right to an attorney. On defendant’s motion to suppress identification evidence, the hearing court determined that the court-ordered lineup was not suggestive and that defendant had no right to counsel at the lineup.

Prior to trial, defendant submitted two pro se motions seeking dismissal of the indictment on the ground that his right to a speedy trial had been violated (see, CPL 30.30, 30.20). After filing the first motion, but before the second, defendant moved pro se to relieve counsel, alleging various deficiencies in representation. On July 24, 1996, in defendant’s absence, defense counsel joined in his client’s request to be relieved. Counsel informed the court that he had discussed the matter with defendant, that defendant no longer wished his services and that, based on the breakdown in communication, he did not “think [he could] do as good a job as perhaps another lawyer could on his case.” After commending counsel for his services, the court stated

“It’s my understanding that [defendant has] filed
frivolous motions which you have refused to adopt.
“[Defense counsel]: That’s right, judge.
“The Court: All right. I commend you for that.”

The court then adjourned the matter to September 3 for the assignment of a new attorney.

Represented by new counsel, defendant was ultimately convicted, after a jury trial, of robbery in the first degree (Penal Law § 160.15 [4]). The Appellate Division affirmed the conviction and held that the trial court properly denied defendant’s pro se speedy trial motions after ascertaining that counsel chose not to adopt them. The Court also held that although the court-ordered lineup was unlawfully conducted in the absence of defendant’s counsel, the error was harmless beyond a reasonable doubt. A Judge of this Court granted defendant leave to appeal and we now reverse.

We first consider whether the trial court was required to entertain defendant’s pro se speedy trial motions. A criminal defendant has no Federal or State constitutional right to hybrid representation (see, NY Const, art I, § 6; People v White, 73 NY2d 468, 477, cert denied 493 US 859; People v Garcia, 69 NY2d 903, 904, rearg denied 70 NY2d 694; People v Ferguson, 67 NY2d 383, 390; People v Richardson, 4 NY2d 224, 227, cert denied 357 US 943). While the Sixth Amendment and the State Constitution afford a defendant the right to counsel or to self-representation, they do not guarantee a right to both. These are “separate rights depicted on the opposite sides of the same [constitutional] coin. To choose one obviously means to forego the other” (United States v Purnett, 910 F2d 51, 54 [2d Cir]).

Thus, a defendant who elects to exercise the right to self-representation is not guaranteed the assistance of standby counsel during trial (see, People v Mirenda, 57 NY2d 261, 265-266). Similarly, a defendant who chooses to defend through counsel cannot, as of right, make motions (see, People v Jordan, 96 AD2d 1060, 1061, affd 62 NY2d 825), file a supplemental brief on appeal (see, People v White, supra, 73 NY2d, at 479), sum up before a jury (see, People v Richardson, supra, 4 NY2d, at 226-227) or otherwise participate personally in the proceedings (id.). By accepting counseled representation, a defendant assigns control of much of the case to the lawyer, who, by reason of training and experience, is entrusted with sifting out weak arguments, charting strategy and making day-to-day decisions over the course of the proceedings (see, Jones v Barnes, 463 US 745, 751; People v Ferguson, supra, 67 NY2d, at 390; People v Jordan, supra, 96 AD2d, at 1061).

Because a defendant has no constitutional right to hybrid representation, the decision to allow such representation lies within the sound discretion of the trial court. Indeed, many jurisdictions have refused to recognize a right of counseled defendants to act in their own defense, leaving it to the discretion of the trial court to determine whether such participation is permitted (see, e.g., United States v Einfeldt, 138 F3d 373, 378 [8th Cir], cert denied 525 US 851; United States v Tutino, 883 F2d 1125, 1141 [2d Cir], cert denied 493 US 1081; United States v LaChance, 817 F2d 1491, 1498 [11th Cir], cert denied 484 US 928; United States v Mosely, 810 F2d 93, 97-98 [6th Cir], cert denied 484 US 841; United States v Halbert, 640 F2d 1000, 1009 [9th Cir]; State v Frye, 224 Conn 253, 256, 617 A2d 1382, 1384-1385; State v Long, 216 NJ Super 269, 275-276, 523 A2d 672, 675-676).

Nevertheless, defendant maintains that a court confronted with a pro se motion should, at minimum, inquire into whether “the defense attorney is aware of the existence of the motion and has discussed its contents with his or her client” (People v Renaud, 145 AD2d 367, 369-370, appeal dismissed 74 NY2d 734; see also, People v Costas, 248 AD2d 482, 483, lv denied 91 NY2d 971). While such inquiries may be the better practice, we will not compel courts to engage in any particular catechism before deciding whether to entertain a pro se motion. Neither our Constitution nor our precedent requires it. Rather, the decision to allow hybrid representation implicates the trial court’s function in ensuring the orderly administration of the proceedings (see, People v Mirenda, supra, 57 NY2d, at 266). As such, it is a matter committed to the sound discretion of the Trial Judge.

The Trial Judge acted within his discretion here. Nothing in the record supports defendant’s contention that he was not represented by counsel when the court rejected his pro se speedy trial motions. To the contrary, the record indicates that defense counsel was aware of both motions before joining in his client’s application to be relieved. The court acknowledged these motions, ascertained that counsel chose not to adopt them and, in so doing, described them as “frivolous.” Under these circumstances, the trial court had no further duty to entertain the motions. While there may be circumstances where the unjustified refusal to entertain meritorious pro se motions would constitute an abuse of discretion (id.), no such circumstances are present here.

Reversal of defendant’s conviction is required, however, by the erroneous admission of the lineup identification. As the People concede, the court-ordered lineup in the absence of counsel violated defendant’s Sixth Amendment right to counsel (see, People v Jackson, 74 NY2d 787, 789; People v Coleman, 43 NY2d 222, 225). Nor was the admission of the tainted lineup in this single eyewitness case harmless beyond a reasonable doubt (see, People v Jackson, supra, 74 NY2d, at 789). In the absence of an independent source for the identification or any other corroborating evidence, we cannot conclude that there was no reasonable possibility that the tainted lineup contributed to the verdict (see, People v Johnson, 80 NY2d 798, 799-800). Thus, there must be a reversal and a new trial preceded by a hearing to determine whether Eva Lopez’s in-court identification testimony had an independent source (see, People v Jackson, supra, 74 NY2d, at 789).

Defendant’s remaining contention is without merit.

Accordingly, the order of the Appellate Division should be reversed, and the case remitted to Supreme Court for further proceedings in accordance with this Opinion.

Chief Judge Kaye and Judges Smith, Levine, Wesley and Rosenblatt concur.

Order reversed, etc.  