
    The People of the State of New York, Respondent, v Joseph Mirenda, Appellant.
    Argued September 7, 1982
    decided October 21, 1982
    
      POINTS OF COUNSEL
    
      Vincent E. Gentile and Kathy M. Silberthau for appellant.
    I. The court’s refusal to appoint counsel to assist appellant in conducting his pro se defense (a) deprived him of his constitutional rights to the assistance of counsel and to represent himself, and (b) constituted an abuse of discretion as a matter of law. (Faretta v California, 422 US 806; People v McIntyre, 36 NY2d 10; People v McLaughlin, 291 NY 480; United States v Plattner, 330 F2d 271; Chapman v United States, 553 F2d 886; Adams v United States ex rel. McCann, 317 US 269; People v Arroyave, 49 NY2d 264; People v Macerola, 47 NY2d 257; People v Felder, 47 NY2d 287; People v Pitman, 25 AD2d 637, 18 NY2d 919.) II. The warrantless search of appellant’s automobile including an attache case in the trunk of his car was unconstitutional where (a) appellant’s consent to the search was involuntary and coerced, and (b) appellant’s consent, even if voluntarily given, was expressly limited to exclude any search of the attache case in the trunk. (United States v Chadwick, 433 US 1; People v Hodge, 44 NY2d 553; People v Gonzalez, 50 Misc 2d 508; Gorman v United States, 380 F2d 158; People v Gonzalez, 39 NY2d 122; United States v Faruolo, 
      506 F2d 490; Bumper v North Carolina, 391 US 543; People v Johns, 41 AD2d 342; Arkansas v Sanders, 442 US 753.) III. Appellant was denied due process and his statutory right to appeal because the unavailability of the stenographic transcripts of the summation precluded meaningful appellate review. (People v Rivera, 39 NY2d 519; People v Montgomery, 24 NY2d 130; People v Poole, 41 AD2d 699; People v Hartley, 34 AD2d 733; People v Adams, 22 AD2d 892; People v McKutchen, 76 AD2d 934; People v Manson, 63 AD2d 686; People v Wasserman, 46 AD2d 915; People v Bell, 36 AD2d 406; People v Williams, 29 NY2d 882.) IV. Other errors committed during the course of the trial prejudiced appellant and denied him a fair trial.
    
      Carl A. Vergari, District Attorney (Anthony J. Servino of counsel), for respondent.
    I. Appellant knowingly, intelligently and voluntarily waived the assistance of counsel at trial, having done so, and to the extent that he never requested that his self-representation be terminated, appellant was not entitled, as a matter of constitutional mandate, to have counsel appointed merely to aid him. The record here is devoid of any facts which suggest that the trial court abused its discretion when it refused to provide counsel merely to aid appellant in his self-representation. (Faretta v California, 422 US 806; Gideon v Wainwright, 372 US 335; United States v Mitchell, 137 F2d 1006, 138 F2d 831, 321 US 794; United States v Wolfish, 525 F2d 457, 423 US 1059; Wainwright v Sykes, 433 US 72; Estelle v Williams, 425 US 501; People v Medina, 44 NY2d 199; People v McIntyre, 36 NY2d 10.) II. The search of the car driven by Mirenda was in all respects proper. The trial court’s (now) affirmed findings of fact belie any claim that appellant’s consent to search said vehicle was anything but knowingly and voluntarily made. Defendant’s consent to search also extended to the attache case which was found in the trunk of the car. In any event, a search of the vehicle and the attache case found therein was proper, as there existed independent reasonable cause to search the vehicle. (People v Kuhn, 33 NY2d 203; People v Lane, 10 NY2d 347; Schneckloth v Bustamante, 412 US 218; United States v Vasquez, 638 F2d 507; United States v Tortorello, 533 F2d 809; United States v Miley, 513 F2d 1191; People v Rodri
      
      guez, 11 NY2d 279; People v Murphy, 55 NY2d 819; People v Milerson, 51 NY2d 919; People v Clark, 45 NY2d 432.) III. The unavailability of the stenographic transcripts of the summations of the parties does not constitute reversible error in a case where defendant has not adequately objected to any portion of the prosecutor’s summation nor raised any genuine appellate issue with respect to same. (Ross v Moffitt, 417 US 600; Griffin v Illinois, 351 US 12; Draper v Washington, 372 US 487; Coppedge v United States, 369 US 438; Ennis v LeFevre, 560 F2d 1072, 435 US 976; People v Dordal, 55 NY2d 954; People v Robinson, 36 NY2d 224.) IV. No error was committed by the trial court when it made these rulings: denied appellant’s request for the appointment of a handwriting expert; denied appellant’s request for a daily stenographic transcript of the day’s proceedings; and permitted Investigator Johansen to give his expert opinion ás to the value of the stolen property. (People v Cona, 49 NY2d 26; People v Palumbo, 49 NY2d 928; People v Dordal, 55 NY2d 954; People v Diaz, 51 NY2d 841; People v Irrizari, 5 AD2d 881; People v Conforti, 285 App Div 973, 309 NY 923; People v Arce, 42 NY2d 179.)
   OPINION OF THE COURT

Chief Judge Cooke.

This appeal raises the question whether the trial • court erred in refusing to appoint standby counsel to assist defendant in presenting his own defense. A criminal defendant has a constitutional right to be represented by counsel, or to proceed pro se. A defendant has no constitutional right, however, to the assistance of a lawyer while conducting a pro se defense. The order of the Appellate Division, therefore, should be affirmed.

Defendant was convicted, after a jury trial, of three counts of criminal possession of stolen property in the first degree, two counts of grand larceny in the second degree, six counts of criminal mischief in the second degree, three counts of criminal possession of stolen property in the third dégree, one count of possession of burglary tools, and one count of unlawful possession of vehicle identification number plates. The charges stemmed from a police raid on a Yonkers garage where a stolen-car dismantling operation was being conducted. The police, armed with a search warrant, closed in as a truck filled with auto parts was about to leave the garage. Defendant was driving a car behind the truck. The officers arrested defendant, the truck driver, and two other men inside the garage.

After his arraignment, defendant moved to proceed pro se, with appointed counsel “to act only as an advisor.” Supreme Court permitted defendant to represent himself, but denied his request for the appointment of a lawyer to assist him. The court twice more denied his request for standby counsel, the second time during the course of a lengthy inquiry into defendant’s ability to represent himself. Defendant then acted without counsel at the suppression hearing and at trial, and was convicted. His codefendant, the truck driver, was represented by an attorney and was acquitted of all charges.

On this appeal, defendant argues that the courts’ refusal to appoint standby counsel to assist him with his self-representation violated his constitutional rights. This contention is without merit. The Sixth Amendment to the United States Constitution provides that a criminal defendant has the right “to have the Assistance of Counsel for his defence.” The State Constitution guarantees that “[i]n any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel” (NY Const, art I, § 6). It is beyond argument that defendant had the right to be represented by counsel at his trial, and that he had the right to have counsel appointed for him if he could not afford a lawyer (see Argersinger v Hamlin, 407 US 25; Gideon v Wainwright, 372 US 335). Similarly, he had the constitutional right to represent himself (see Faretta v California, 422 US 806; People v McIntyre, 36 NY2d 10; People v McLaughlin, 291 NY 480).

What defendant asserts here, however, is a constitutional claim to a hybrid form of representation. He maintains that he had the right to proceed pro se, while simultaneously being advised by appointed “standby” counsel. No such right is guaranteed by either the State or Federal Constitution.

It is true that the appointment of standby counsel to assist a pro se defendant has received judicial approval. As this court recently stated, “where a defendant decides on self-representation, a Judge ‘may — even over objection by the accused — appoint a “standby counsel” to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary’ ” (People v Sawyer, 57 NY2d 12, 22, quoting Faretta v California, supra, at p 835, n 46; see, also, ABA Standards for Criminal Justice [2d ed], Special Functions of the Trial Judge, standard 6-3.7). The assignment of standby counsel, however, is a matter of trial management. As such, it is a subject for the discretion of the Trial Judge, whose decision will not be disturbed by this court unless the Judge abuses that discretion. No such abuse was present here, in any of the denials of defendant’s request. The record demonstrates that defendant was fully aware of the potential pitfalls of self-representation. When denying defendant’s renewed request for standby counsel at the outset of the suppression hearings, the Judge conducted a lengthy colloquy with the 39-year-old defendant. The dangers of self-representation were extensively explained. Defendant repeatedly asserted his desire to appear on his own behalf and manifested his appreciation of the attendant risks as well as his familiarity with legal principles and courtroom procedures. The record demonstrates that defendant’s decision to proceed pro se without standby counsel was made knowingly and intelligently (see People v McIntyre, 36 NY2d 10, 17, supra).

Defendant also challenges the introduction at trial of material seized from an attache case in his car. The suppression court found that, when he was arrested, defendant consented to a search of his car but told the officers that he had legal papers in the car and secured their agreement not to look at these papers. The ensuing search yielded an attache case in the car’s trunk. When opened in defendant’s presence, the case was found to contain certain incriminating items, including identification tags from various stolen vehicles; at that time, defendant raised no objection that “legal papers” were inside and did not otherwise advance any contention that the search was going beyond the scope of his consent. The suppression court found that defendant’s limited consent to the police search encompassed permission to open the attache case. On the record before this court, it cannot be said that this was legal error.

Finally, defendant argues that the Appellate Division should have reversed his conviction because the stenographer’s notes of the prosecutor’s summation were destroyed. This claim is unpersuasive. The notes of the summation were not destroyed until two and one-half years after the trial, as permitted by section 297 of the Judiciary Law, and more than one year after the other portions of the typed transcript were filed. Inasmuch as defendant at no point during this period brought to the court’s or stenographer’s attention the summation’s absence from the transcript, and the destruction of the notes being authorized (see Judiciary Law, § 297), defendant’s claim does not merit reversal.

Defendant’s remaining assertions of error have been examined and are found to be without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Meyer, J.

(dissenting). Respectfully I dissent.

The Sixth Amendment to the United States Constitution gives an accused the right “to have the Assistance of Counsel for his defence” (emphasis added) and our State Constitution in section 6 of article I mandates that “the party accused shall be allowed to appear and defend in person and with counsel” (emphasis added).

Nothing in case law or constitutional history suggests that the right to counsel and the right to appear pro se are alternative or that election of one necessarily excludes the other. To the contrary, as the Supreme Court makes clear in Faretta v California (422 US 806), (1) the Federal amendment “speaks of the ‘assistance’ of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant” (id., at p 820); (2) as the right to counsel learned in the law developed in English criminal procedure, “the accused retained his established right ‘to make what statements he liked’ ” {id., at p 825, quoting 5 Holdsworth, A History of English Law, at p 195, n 17); (3) in the colonies, after the Declaration of Independence, “The right to counsel was clearly thought to supplement the primary right of the accused to defend himself” (id., at pp 829-830 [emphasis supplied]); and (4) “the colonists and the Framers, as well as their English ancestors, always conceived of the right to counsel as an ‘assistance’ for the accused, to be used at his option, in defending himself” {id., at p 832 [emphasis supplied]). Support for the view that there is a constitutional right to hybrid representation may be found in Welcom, Assistance of Counsel: A Right to Hybrid Representation (57 Boston U L Rev 570, 582-583, 586); Erhard, The Pro Se Defendant’s Right to Counsel (41 U of Cinn L Rev 927, 940); Homiak, Faretta v California and the Pro Se Defense: The Constitutional Right of Self-Representation (25 Amer U L Rev 897, 916-919, 936); but cf. Dreyer, Jury Nullification and the Pro Se Defense: The Impact of Dougherty v United States (21 U of Kan L Rev 47, 52-53).

Though the State Constitution does not go so far as did that of Georgia, whose 1798 Constitution provided (art III, § 8) the accused the right to defend “by himself or counsel, or both,” neither does it, as did the 1780 Massachusetts Declaration of Rights, accord the accused the right to be heard only “by himself, or his counsel at his election” (art XII). Without cogent reason or explanatory constitutional history, however, we should not construe “in person and with counsel” to mean “in person or through counsel” (cf. Wake v Barker, 514 SW2d 692, 695 [Ky]). No suggestion is made that by according the accused a right to standby counsel to assist in his defense the State will bear a greater burden in time or in money than it bears in providing counsel to an accused who does not seek to represent himself. Indeed, our recent recognition of the right to appoint standby counsel “‘even over objection by the accused * * * to aid the accused if and when the accused requests help’ ” (People v Sawyer, 57 NY2d 12, 22) and the holding of the Fifth Circuit in Wiggins v Estelle (681 F2d 266, 273) that standby counsel is “to be used or not used as the defendant sees fit” strongly suggest the contrary (see Wake v Barker, supra; see, also, Welcom, op. cit., at p 584; Erhard, op. cit., at p 940; Homiak, op. cit., at pp 917-919; Brick, Self-Representation in Criminal Trials: The Dilemma of the Pro Se Defendant, 59 Cal L Rev 1479, 1507-1513; Garcia, Defense Pro Se, 23 U of Miami L Rev 551, 562-566; Note, 49 Minn L Rev 1133,1151-1153). Nor, as we and the Supreme Court have made abundantly clear, need a Trial Judge permit the provision of standby counsel to a defendant to be used as an instrument of disruption (People v McIntyre, 36 NY2d 10, 18; Faretta v California, 422 US 806, 834, n 46, supra).

Because I conclude that there is a right under both Federal and State Constitutions of a pro se defendant to have the assistance of standby counsel in his defense, which defendant neither waived nor forfeited, I would reverse the order of the Appellate Division and order a new trial.

Judges Jasen, Jones, Wachtler and Fuchsberg concur with Chief Judge Cooke; Judge Meyer dissents and votes to reverse in a separate opinion; Judge Gabrielli taking no part.

Order affirmed. 
      
       The provision in section 6 of article I of the State Constitution that a “party accused shall be allowed to appear and defend in person and with counsel” does not compel a contrary conclusion. The language is designed to guarantee that a defendant who chooses to defend through counsel does not thereby lose the right -to appear personally in the courtroom. Under the dissent’s contrary interpretation of this provision, not only would a pro se defendant have the right to standby counsel, but a defendant who chose to be represented by counsel would have the right also to personally take part in the conduct of the trial by, for instance, making motions, cross-examining witnesses, or arguing to the jury.
      Recognition of a Federal constitutional right to standby counsel has been proposed by some, but the proposals themselves acknowledge that “even the most liberal view of sixth amendment representation rights at present does not extend beyond this bifurcated model — allowing either full representation or pro se representation, but not both at the same time” (Note, Assistance of Counsel: A Right to Hybrid Representation, 57 Boston U L Rev 570; see Comment, Faretta v California and the Pro Se Defense: The Constitutional Right of Self-Representation, 25 Amer U L Rev, 897, 915; Note, The Pro Se Defendant’s Right to Counsel, 41 U of Ginn L Rev 927, 929). The fact remains that a Sixth Amendment right to such a form of representation has not been adopted (see United States v Klee, 494 F2d 394, 396, cert den 419 US 835; United States v Conder, 423 F2d 904, 907-908, cert den sub nom. Pegram v United States, 400 US 958).
     
      
       The court cited as an example Thomas Paine’s statement that “the civil right of pleading by proxy, that is, by a council, is an appendage to the natural right [of self-representation].” Examples of contrary civil cases are set forth in Brasier v Jeary (256 F2d 474, 476-477).
     