
    The People of the State of New York, Respondent, v Arnold Reason, Appellant.
    Argued April 30, 1975;
    decided July 10, 1975
    
      
      Morris Pottish for appellant.
    Defendant has been denied his constitutional right to proper counsel. (People v Allman, 41 AD2d 325; People v Wilson, 15 NY2d 634; People v Bornholdt, 33 NY2d 75; Glasser v United States, 315 US 60; People v LaBree, 34 NY2d 257.)
    
      Robert M. Morgenthau, District Attorney (Judith K. Rubinstein and T. James Bryan of counsel), for respondent.
    I. Arnold Reason’s guilt of murder and attempted murder was proved beyond a reasonable doubt and is not contested on appeal. II. At no stage of the proceedings has appellant been denied his constitutional right to counsel. (People v Laudati, 35 NY2d 696; People v Reason, 44 AD2d 533; People v Tomaselli, 7 NY2d 350.)
   Wachtler, J.

The defendant was indicted for murder and attempted murder after he stabbed two men on a Manhattan street in August of 1969. It appears that at various times throughout 1965, 1966 and 1967 the defendant had been hospitalized for mental illness. Upon arraignment the court ordered that he be examined to determine his mental capacity to stand trial. The psychiatrists reported that the defendant was not mentally incapacitated and the court confirmed the report.

Two years later the case came to trial. At that time the defendant insisted on representing himself and declined the court’s suggestion that he present an insanity defense. He chose instead to establish an alibi, and although the court repeatedly and "strongly urge[d]” him to permit experienced counsel to try the case the defendant conducted his own defense with the assistance of his two assigned attorneys; who were directed to remain at his side throughout the trial. When the trial concluded three weeks later, the jury found the defendant guilty as charged.

Before pronouncing sentence the Trial Justice ordered a new psychiatric examination to determine the defendant’s present mental capacity as well as his mental status at the time of trial. Once again he was examined by two psychiatrists who filed a report concluding that at that time, as well as at the time of trial, the defendant had the capacity "to understand the proceedings against him” and "to assist in his own defense.” (CPL 730.10, subd 1.) After a hearing the report was confirmed. The defendant is now serving two concurrent terms of imprisonment aggregating from 25 years to life.

The record shows that during the course of the trial— particularly during the opening and closing statements — the defendant drifted into irrelevant and nearly incoherent discourses. Nevertheless he maintains, as he did at trial, that he was not mentally incapacitated. Thus on appeal he has prohibited his attorney from raising any issue relating to his sanity. Counsel, professing to honor this instruction, has claimed instead that the record shows that the "defendant has been denied his constitutional right to proper counsel” because he lacked "the capacity or competence to act as attorney pro se. ” The Appellate Division, affirming the conviction, noted that "counsel’s argument has raised the question it was designed to avoid” (44 AD2d 533).

On this appeal defendant’s counsel raises the same issue, and claims that the Appellate Division failed to perceive a distinction between mental capacity to stand trial and competency "to act as attorney pro se.” Properly formulated the question is rather whether, although the defendant’s capacity to stand trial had been established, did he in addition in the circumstances here presented intelligently and voluntarily waive his right to be represented by counsel and thus exercise his right "to act as attorney pro se”? (See Faretta v California, 422 US 806.)

We reject the contention that there are two separate and distinct levels of mental capacity — one to stand trial, another to waive the right to be represented by counsel and to act as one’s own attorney. By such rejection, however, we do not intend to suggest that mental capability of the defendant at the time of waiver is irrelevant. Quite the contrary. As in other instances of waiver, the determination that it was intelligent and voluntary, and thus legally effective, may well turn, even in major part, on the mental capability of the defendant at the time in the circumstances.

The concept that a defendant must have the mental capacity to stand trial, of course, arose at a time when a defendant was not entitled to have counsel assigned. Since it was contemplated that a defendant would be conducting his own defense, it was held that he could not be brought to trial unless he had sufficient mental capacity to understand the proceedings and assist in his own defense; otherwise "how can he make his defense” (4 Blackstone’s Commentaries, p 24; see, also, People v Valentino, 78 Misc 2d 678). In light of this it would be difficult to say that a standard which was designed to determine whether a defendant was capable of defending himself, is inadequate when he chooses to conduct his own defense. From a practical viewpoint it would be even more difficult to formulate a workable, and presumably higher, standard of competency which would not infringe on the defendant’s constitutional right "to appear and defend in person” (NY Const, art I, § 6; People v McIntyre, 36 NY2d 10). Certainly the defendant’s ignorance of the law cannot defeat this right, for as we noted in McIntyre (supra, p 18) this would "render the right to defend pro se an empty one indeed.”

As indicated, the right of a defendant to act as his own attorney must be approached from a different but clearly related point of view, and can only be premised on a prior determination that he has mental capacity to stand trial. This does not mean, either, that the right to act as one’s own attorney is absolute. In McIntyre we indicated that (p 17) "a defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues”. (Emphasis added.) In that case there was no question of the defendant’s competence to stand trial since that issue had not been raised. We believe the same standards should apply when, as here, the issue has been resolved by a formal judicial determination. At that stage the only so-called competency question remaining is whether the decision to waive counsel — implicit in the assertion of the right to defend pro se — "has been made competently, intelligently and voluntarily (Johnson v Zerbst, 304 US 458).” (People v McIntyre, supra, p 17.)

Resolution of this issue, as in comparable settings, does not require a further psychiatric examination and yet another formal hearing to determine mental competency to defend pro se, whatever that may mean. Traditional inquiry by the court demonstrating that the defendant "was cognizant of the dangers of waiving counsel” (McIntyre, supra, p 18) and yet did so "competently and intelligently” (Johnson v Zerbst, supra) should suffice. This is the essential inquiry and the appropriate procedure for resolving it.

In Westbrook v Arizona (384 US 150) for instance, the defendant was examined by three psychiatrists after he stated that he wished to defend himself. At the hearing at least one of the psychiatrists was informed of this and was asked whether the defendant "is mentally able to conduct his own defense”. He stated that the defendant had the capacity. The court found the defendant mentally competent to stand trial and the defendant proceeded to try his own case. He was convicted of murder in the first degree and sentenced to death (State v Westbrook, 99 Ariz 30, 37).

The Supreme Court summarily reversed and remanded. Apparently they attached little or no significance to the fact that the competency hearing had been expanded to cover the question of the defendant’s mental capacity to defend himself. They were more concerned about the fact that there was nothing in the record to indicate that the trial court had queried the defendant in accordance with Johnson v Zerbst (supra) to determine whether his waiver of counsel was intelligently made. In a short Per Curiam opinion they stated (Westbrook, supra) : "Although petitioner received a hearing on the issue of his competence to stand trial, there appears to have been no hearing or inquiry into the issue of his competence to waive his constitutional right to the assistance of counsel and proceed, as he did, to conduct his own defense. 'The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.’ Johnson v Zerbst, 304 US 458, 465; Carnley v Cochran, 369 US 506.”

In the case now before us the trial court fully discharged that responsibility. The defendant was advised on several occasions of the consequences of any decision on his part to act as his own attorney. The trial court carefully examined the defendant to make certain that the defendant comprehended his predicament.

The record demonstrates that the Trial Judge made a searching inquiry to determine whether the defendant’s decision to waive counsel and proceed on his own was made knowingly and intelligently with full awareness of the risks and consequences. This, coupled with the finding that the defendant was mentally competent to stand trial, is sufficient to show that the trial court properly allowed the defendant to represent himself. In our view the Supreme Court’s holding in Westbrook requires no more (cf. People v Gonzalez, 20 NY2d 289).

In sum, both before and after trial, as the result of two separate examinations and hearings, the defendant was found competent to stand trial. After a full and searching inquiry of the defendant the trial court, with full awareness that question had been raised as to the defendant’s capacity to stand trial, also concluded that the defendant made a knowing and intelligent waiver of his right to counsel. Under these circumstances the defendant is bound by his decision and cannot complain of the legal representation he has received at his own hands unless the evidence in the record is insufficient as a matter of law to support the court’s determinations (People v Laudati, 35 NY2d 696; People v Witenski, 15 NY2d, 392; People v Jackson, 32 AD2d 968; cf. People v Cooper, 36 NY2d 876, where we held that the question of the defendant’s legal sanity was "beyond [our] review” although it was "difficult if not impossible to avoid a conclusion that defendant was psychotic).” We have found the evidence to be sufficient and thus can only conclude that if the defendant did not always conduct his defense in the most rational manner it was not because he lacked the capacity to do so (cf. People v Kowalcyzk, 34 NY2d 864).

The order of the Appellate Division should be affirmed.

Jasen, J.

(dissenting). I cannot agree with the majority that there is no distinction between being able to stand trial and being able to conduct one’s own defense. One may be judged competent to stand trial if he has the necessary mental capacity to understand the nature of the proceedings against him and to assist in his defense (CPL 730.30, subd 2; 730.10, subd 1), whereas, one who seeks to act as his own attorney must show competency to intelligently waive the services of counsel and act as his own attorney. Hence, an adjudication by the trial court that a defendant is capable of standing trial is not a determination of his competency to act as his own counsel.

The United States Supreme Court recognized this distinction in Westbrook v Arizona (384 US 150). In that case the defendant, charged with murder, insisted on his right to act as his own counsel during the trial. He was granted that right after the court heard the testimony of two psychiatrists to the effect that defendant was able to understand the proceedings against him and able to aid counsel in his defense. After trial the defendant was convicted, and on appeal the Arizona Supreme Court affirmed. In vacating the judgment of conviction, the Supreme Court held that "[although petitioner received a hearing on the issue of his competence to stand trial, there appears to have been no hearing or inquiry into the issue of his competence to waive his constitutional right to assistance of counsel and proceed, as he did, to conduct his own defense.” (384 US 150.) Thus, it would seem clear, that where a defendant demands his right to act as his own counsel, the court must separately determine, after a hearing, whether he has the requisite mental capacity to intelligently waive his Sixth Amendment right to counsel. In addition, it should be determined whether the defendant has the mental capacity to act as his own attorney.

While a defendant has an implicit constitutional right to proceed to trial without counsel (Faretta v California, 422 US 806; People v McIntyre, 36 NY2d 10), the right is not without qualification. Society’s interest in the integrity of the truth-determining process and the need to have the trial proceed in an orderly fashion require that there be some qualification on the right. This concern is based upon the principle that only through an "orderly exposition of the issues” can society be adequately assured that the truth has been determined. (People v McIntyre, supra, p 17.) Besides the need for orderly procedure at trial, the proper administration of justice also requires that the rights of the defendant be fully protected. This means securing for the defendant due process of law.

Furthermore, a defendant must be able "competently and intelligently to choose self-representation.” (Faretta v California, supra, p 835.) In order to determine whether a defendant is capable of so choosing, the court should take into consideration the background, conduct of the defendant, his mental condition, age, education, experience, the nature or complexity of the case, or other factors which would assist the court in determining his competency to conduct his own defense. (ABA Minimum Standards for Criminal Justice— Providing Defense Services, § 7.2, p 63; Johnson v Zerbst, 304 US 458, 464.) The inquiry should not be merely routine, but should be sufficiently thorough as the circumstances of the case require. For instance, past mental illness, although not necessarily determinative of a defendant’s present mental competency to conduct his own defense, is a factor which should be given weight in determining the defendant’s present condition. In addition, since the subjective understanding of the defendant is sought, rather than the quality or contents of the explanation given him, the court should question the defendant in a manner designed to reveal that understanding, rather than framing questions which call for a simple "yes” or "no” response. (See Remington, Defense of the Indigent in Wisconsin, Wis Bar Bull, Feb. 1964, pp 40, 43.)

Should the court, after an examination of the defendant, be satisfied that he possesses a sufficient understanding of the consequences of proceeding pro se to waive his Sixth Amendment right to counsel and that he has the mental competency to act as his own attorney, his request to proceed pro se should be granted.

However, where the court is not satisfied that the defendant is fully competent to realize the consequences of foregoing legal assistance or that he has the mental capacity to act as his own counsel, then, in that event, the application should be denied. This type comprises more than just those defendants who are not sui juris.

A situation may occur where the court properly finds that a defendant competently waives counsel before trial, but, as it develops at trial, the defendant is unable actually to conduct his defense. Under such circumstances, the court should not hesitate to declare a recess and conduct further inquiry as to the defendant’s mental competence to continue as his own counsel. Upon a finding by the court that the defendant no longer possesses the necessary competence to proceed with his own defense, due process requires that trial counsel should be directed to take over the defense in order that the rights of the accused may be fully protected. Where, however, a fully competent defendant chooses to conduct his defense in a questionable but not disruptive manner, he should not be prevented from conducting his own defense. Only where his antics disrupt the orderly procedures of trial or cause turmoil in the court should the court act to vacate the defendant’s right to act as his own counsel.

Applying the above standards to the case before us, a reversal of the order appealed from is required. Although defendant was afforded an adequate hearing on the issue of his competence to stand trial, the record discloses that the inquiry into his competence to waive the constitutional right of assistance of counsel and to conduct his own defense was inadequate. Considering the extensive medical history of three prior psychiatric hospitalizations with a presumed diagnosis of paranoid schizophrenia, the weird and bizarre circumstances surrounding the alleged attacks on two persons and the lack of motive, provocation or other cause for his alleged conduct, as well as his demeanor before the court, both before trial and at the opening to the jury, it is difficult to find any basis upon which a finding by the court of competency to proceed pro se can be justified. Although the trial court urged the defendant to allow counsel to represent him and expressed concern and apprehension as to defendant’s ability to proceed without counsel, the court, nevertheless, without further inquiry as to his competency to waive counsel, agreed to defendant’s request to proceed pro se. Nor was it adequate inquiry for the court to merely warn the defendant of the dangers of proceeding pro se, since warnings alone are not sufficient. Rather, the trial court’s questioning should have been directed to the issue of defendant’s competency to waive counsel and to proceed pro se. The trial court’s warnings and questions fell far short of a "searching inquiry” as characterized by the majority. Indeed, the excerpt, which is quoted below, is typical of the several exchanges between the court and the defendant and shows that the court failed to make the requisite inquiry. Rather, the excerpt reveals the serious doubts that the court had as to defendant’s competency to waive counsel and to proceed pro se.

Furthermore, the court should have reconsidered its ruling after the defendant’s opening to the jury which addressed itself to none of the issues and had no rational or relevant relationship to the issues. The trial court, presumably realizing this, stated to the defendant, "[p]lease confine yourself to the issue before the Court and jury * * * You have rejected any plea of not guilty by reason of mental disease or defect. The Court cannot consider any such evidence.” On completion of defendant’s opening statement, the trial court sua sponte urged defendant to rely on the defense of insanity by saying "[i]n the interest of justice the Court will permit the filing of the notice [of intention to rely on the defense of insanity] at this time. Indeed the Court urges that the defendant do serve and file such notice.” The defendant declined and continued the trial with irrelevant questioning of witnesses and weird, bizarre and irrelevant rambling.

Accordingly, I conclude that the record does not support the trial court’s determination that the defendant possessed the competence to waive his right to counsel and act as his own attorney, and, therefore, the request to so act should have been denied.

Judges Gabrielli, Jones and Cooke concur with Judge Wachtler; Judge Jasen dissents and votes to reverse in a separate opinion in which Chief Judge Breitel and Judge Fuchsberg concur.

Order affirmed. 
      
      . It may be assumed that defense counsel was appointed by the court or retained by defendant prior to defendant’s application to proceed pro se, and has remained in at least an advisory capacity.
     
      
      . The following colloquy took place while a jury was being selected:
      "THE COURT: The Court will permit you to represent yourself but not without further admonishing you that you are doing this at your peril, that it is very inadvisable for a defendant to represent himself. You can’t possibly be as objective and detached as a person should be in making a defense.
      "In addition, you can’t possibly have the necessary legal knowledge.
      “However, the Court must and will accede to your request if you persist, but the Court has an obligation and it is fulfilling that obligation of encouraging you and urging you not to make that decision. Do you understand me?
      "THE DEFENDANT: I understand you.
      "THE COURT: I want you to fully understand that in the Court’s opinion, based on years of experience, you are making a grave mistake, that you can’t possibly be equal to protecting yourself adequately.
      "Now if you fully understand that and none-the-less wish to exercise your right under the law, I must and will permit you. But not unless you fully understand what I am talking about. Do you feel that you fully understand?
      "THE DEFENDANT: I fully understand, your Honor.
      "THE COURT: You understand that in my considered judgment you are making a grave mistake?
      "THE DEFENDANT: I understand that, too.
      "THE COURT: And none-the-less you wish to represent yourself?
      "THE DEFENDANT: I do, and I respect and appreciate your Honor’s warning.”
     
      
      . The fact that defendant, despite these facts, consistently refused to interpose an insanity defense is by itself very compelling evidence that defendant did not fully understand the possible defenses to the charges and, therefore, was not competent to knowingly and intelligently waive his right to counsel.
     
      
      . An example of defendant’s irrelevant rambling follows: "The issue of the dead belong to God. It’s in the bible. Each of the dead belong to God. God seeks the past. Life gives birth to time, time is passed, just passed, time passed, just passed. Anticipate time. Time is past. Hour has already been. I wrote right here, I would like to repeat that and I would, I would like to repeat that”..
     