GRAFFEO, J.:

The issue in this case is whether Supreme Court violated defendant's Sixth Amendment rights by allowing a trial to proceed after defendant refused to permit his assigned counsel to participate in his defense and defendant declined to represent himself. Under the circumstances of this case, we conclude that the court did not violate defendant's right to a fair trial.

In March 1994, defendant Michael Henriquez approached a police car and informed an officer that he had just killed his paramour. Police officers who arrived at defendant's residence found the victim dead from numerous gunshot wounds to her head. After he was taken to a police station for questioning, defendant provided detailed written and videotaped statements in which he confessed to shooting his girlfriend multiple times in the presence of their infant daughter. Defendant was subsequently charged with intentional murder in the second degree, illegal weapon possession and endangering the welfare of a child.

Huntley and Sandoval hearings were conducted prior to trial. Defendant's assigned counsel participated in those proceedings, securing the suppression of a statement by defendant on the basis that the prosecution failed to provide notice as required by CPL 710.30. During jury selection defense counsel questioned prospective jurors while defendant elected to be absent. Defendant returned to the courtroom for defense challenges to certain venire members.

Before opening statements were presented, defense counsel informed the trial judge that:

"defendant advised me this morning that . . . he is directing me not to cross-examine any witnesses, not to object to any line of questioning, not to . . . approach the bench, not to participate in any bench conferences or side bars, not to have any defense in this case, not to call any witnesses, not to sum up, not to do anything.

He has indicated to me he just wants me to sit here and do nothing."

As a result of defendant's demands, counsel asked to be relieved of his assignment and requested that defendant be permitted to represent himself.

Defendant, however, indicated that he did not wish to proceed pro se. He declared, "I didn't ask to represent myself. You can't tell me I have to represent myself." The court confirmed the accuracy of defense counsel's recitation of defendant's commands and advised defendant that he did not have to act as his own attorney.

In response to further inquiry by the trial judge, defendant acknowledged that he had the right to make an opening statement, cross-examine the People's witnesses, testify on his own behalf, call witnesses and object to impermissible questioning by the prosecutor. Defendant also stated that he had discussed possible defenses with his lawyer and understood that they would not be presented to the jury if his attorney remained mute. Despite the court's attempt to convince defendant that he was "foolish[ly]" waiving many "very important rights," defendant steadfastly refused to accept the participation of his counsel in trial proceedings. Faced with defendant's obstinancy in rejecting his attorney's participation while refusing to proceed pro se, the court denied defense counsel's application to withdraw and instructed him to remain available during the proceedings in the event defendant changed his mind and decided to consult with him or present a defense.

When an issue arose concerning the possible substitution of a juror, defense counsel advised the court that defendant would not allow him to provide any input on the matter and that the trial judge should act as he saw fit. Defendant also refused to take any position or allow counsel to comment on the court's proposed preliminary jury instructions at the outset of trial. Defense counsel renewed his application to be relieved, which the court denied by reiterating that counsel was expected to be ready to present a defense if defendant wished to do so. Before the jury was brought into the courtroom for opening statements, defendant reasserted that he was opting not to present a defense and was "not going to change [his] mind."

Defendant did not make an opening statement to the jury. Prior to the People presenting testimony, the court again secured defendant's "understand[ing]" that he was "free" to "change [his] mind" and allow his attorney "to make objections . . . or otherwise participate in the trial." Defendant did not do so and, therefore, his lawyer did not cross-examine the People's first witness.

The prosecutor then informed the court that he intended to introduce into evidence certain crime scene photographs and the murder weapon. Defendant told his counsel not to object. Two additional witnesses testified for the People without cross- examination by the defense. Before the next prosecution witness took the stand, defense counsel objected because the witness had been seated in the courtroom during the testimony of the earlier witnesses. In response to the court's concern that the objection had been raised without defendant's permission, counsel conferred with defendant and withdrew the objection. When adjourning for the evening, the court again urged defendant to reconsider how he was proceeding in the case.

The next morning, defendant stated that he was aware that he could change his mind to allow his attorney to participate in the proceedings, but he insisted that counsel do nothing. When the People rested, both defendant and his attorney indicated that defendant had instructed counsel not to call any witnesses or make any motions on defendant's behalf. Although the court advised defendant that the affirmative defense of extreme emotional disturbance was available to him, defendant refused to seek a jury instruction related to that defense. Defendant declined to comment on jury instructions, telling the court to instruct the jury in whatever manner it deemed appropriate. No summation was presented on behalf of defendant. Nor did defendant object to any of the instructions given by the court to the jury before its deliberations.

The jury found defendant guilty of intentional murder in the second degree and other crimes. The Appellate Division upheld the conviction, concluding that defendant, after being consistently warned by the trial court about the pitfalls of his conduct, knowingly, intelligently and voluntarily waived his rights to present a defense, cross-examine or call witnesses, or testify on his own behalf. A Judge of this Court granted leave to appeal. We now affirm.

Defendant asserts that his constitutional right to a fair trial was violated because the trial court and defense counsel respected his desire to refrain from presenting a defense. This argument is premised on defendant's claim that he neither waived nor forfeited his Sixth Amendment right to the effective assistance of counsel. Defendant therefore contends that his attorney was ethically obligated to mount a defense and the trial court, by allowing counsel to remain mute, failed to insure that defendant's guilt be determined only after an adversarial proceeding.

The constitutional guarantee to due process of law provides criminal defendants with "the fundamental right to a fair trial" ( Strickland v Washington, 466 US 668, 684 1984]). The essential elements of this right are defined primarily by the Sixth Amendment:

"[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

With respect to an accused's right to counsel, "[t]he right of any defendant . . . to stand before a court with counsel at his side to safeguard both his substantive and procedural rights is inviolable and fundamental to our form of justice" ( People v Settles, , 46 NY2d 154, 161 [1978]; see People v Felder, , 47 NY2d 287, 295-296 1979]).

Thus, an accused who requests legal representation cannot be forced to stand trial without the services of an attorney ( see e.g. Gideon v Wainwright, 372 US 335, 344 [1963]; Powell v Alabama, 287 US 45, 71 [1932]).

It is also firmly established that, because "[t]he right to defend is given directly to the accused" ( Faretta v California, 422 US 806, 819-820 [1975]), "the Constitution does not force a lawyer upon a defendant" ( Adams v United States ex rel. McCann, 317 US 269, 279 [1942]; see People v McIntyre, , 36 NY2d 10, 17 [1974]; People v Bodie, , 16 NY2d 275, 279 1965]). And "[w]hile 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'" ( People v Rodriguez, , 95 NY2d 497, 501 [2000], quoting United States v Purnett, 910 F2d 51, 54 [2d Cir 1990]). An accused awaiting trial therefore has only two choices regarding legal representation -- proceed with counsel or waive the protection of the Sixth Amendment and proceed pro se.

In this case, the trial court was confronted with a defendant attempting to abuse the process. Despite defendant's refusals to allow his counsel to participate effectively on his behalf, he never asked that counsel be relieved and repeatedly rejected self-representation. The question that arises from this predicament is whether defendant could continue to have his counsel present at all stages of the proceedings but decide not to allow his lawyer to actively participate at his trial. Certainly trial courts need to discourage defendants from taking such a stance. It is far preferable for an accused, bent on controlling every aspect of the defense case and undermining counsel's ability to act as a zealous advocate, to accept self- representation and proceed pro se with assigned counsel serving not as an attorney but as a standby legal advisor. In this situation where defendant indisputably resisted pro se status, there was no comfortable solution to the dilemma facing the trial judge.[1]

In cases where defendants have refused self- representation and restricted the participation of counsel, many courts have viewed defendants who adopt such postures as having voluntarily waived the right to the effective assistance of counsel ( see United States ex rel. Testamark v Vincent, 496 F2d 641, 643-644 [2d Cir 1974], cert denied 421 US 951 [1975]).[2] Our precedent also leads to this conclusion.

In People v Kelly (, 44 NY2d 725 [1978], affg 60 AD2d 220 [1st Dept 1977]), the defendant rejected the services of his counsel after suppression motions but the trial court denied counsel's request to be relieved and directed the attorney to remain in court to be available to assist the defendant. In reviewing the defendant's claim of denial of his Sixth Amendment right to counsel, we agreed with the Appellate Division that the defendant's conduct did not equate to a request to proceed pro se and that the defendant was not denied the right to effective legal representation because he ordered his attorney not to participate in the trial. In such difficult circumstances, we concluded that it was appropriate for the trial court to deny counsel's motion to be relieved and direct the attorney to remain available to provide legal assistance if the defendant decided to present a defense. The Appellate Division in Kelly aptly observed that a defendant:

"should not be permitted to nullify a trial and require a new trial by the simple expedient of obstructing every effort of the court to assure to the defendant his legal rights and a fair trial. There comes a point where a defendant must bear the consequences of his conduct, in a courtroom as well as out of it" (60 2 at 224).

So too must defendant in this case now accept the decision he knowingly, voluntarily and intelligently made, and the consequences of his intentional actions and choices. Regardless of how unwise that decision may have been, it was his to make ( see generally People v Bodie, 16 NY2d at 279; Faretta v California, 422 US at 821). The record establishes that the efforts by the trial court were aimed at explaining the magnitude of the decision facing defendant, and although defendant was repeatedly informed of his right to utilize the services of his attorney, he continually declined the assistance of counsel. Defendant's responses reveal that he acted with full knowledge and appreciation of the panoply of constitutional protections that would be adversely affected by counsel's inability to participate -- the right to make an opening statement to the jury, to cross-examine the People's witnesses, to present exculpatory or mitigatory evidence, to testify on his own behalf and to request favorable jury instructions or the submission of lesser included offenses. Because the trial court directed defense counsel to remain available to assist defendant ( see People v Kelly, , 44 NY2d 725), defendant was keenly aware that he could change his mind at any time and counsel would mount a defense. Defendant's desire to prevent counsel's participation, coupled with his adamant refusal to represent himself, translates into an intentional failure to avail himself of his constitutional "right to a fair opportunity to defend against the State's accusations" ( Chambers v Mississippi, 410 US 284, 294 [1973]). "That defendant now questions the wisdom of his decision cannot relieve him of the consequences of his request" ( People v Petrovich, , 87 NY2d 961, 964 [1996]) and counsel cannot be charged with failing to provide less than meaningful or effective representation because that right was waived by defendant.

Defendant's remaining contentions, including those raised in his pro se brief, are unavailing.

Accordingly, the order of the Appellate Division should be affirmed. People v Henriquez No. 121

G. B. Smith, J. (dissenting):

Defendant was denied his constitutional rights to effective assistance of counsel and a fair trial when, after it became clear that defendant did not want to proceed pro se but wanted to have defense counsel serve as his legal representative, defense counsel followed defendant's directions not to do anything (e.g., cross-examine adverse witnesses and make objections) on defendant's behalf and, more importantly, the trial court allowed counsel not to do anything. The trial court and defense counsel did not adhere to the legal and professional standards regarding the allocation of decision-making authority between the accused and defense counsel. This lack of adherence was illustrated when the trial court, although maintaining throughout the trial that defendant was represented by counsel, incorrectly accorded to defendant the right to make decisions regarding trial strategies and tactics, which decisions are generally reserved to counsel who has undertaken to represent one accused of a crime. As a result, the trial court and defense counsel failed to ensure that the adversarial testing process worked to produce a fair and just result in the instant case. I therefore dissent and vote to reverse defendant's conviction and remand for a new trial.

Colloquy Between the Court, Defendant and Defense Attorney

Defendant made statements to the police that, after finding his wife in a compromising situation with another man, he shot her numerous times and killed her. Defendant also stated that the other man got away. The circumstances of the incident raise the possibility of an affirmative defense of extreme emotional disturbance which could have lessened the conviction from murder in the second degree to manslaughter (Penal Law § 125.25 [1][a]).

On March 25, 1996, prior to opening statements at trial and outside the presence of the jury, defendant, counsel who was appointed to represent defendant ("Mr. Loverro") and the trial court engaged in the following colloquy:

MR. LOVERRO: The defendant advised me this morning that he * * * is directing me not to cross-examine any witnesses, not to object to any line of questioning, not to call -- to go even further, not to approach the bench, not to participate in any bench conferences or side bars, not to have any defense in this case, not to call any witnesses, not to sum up, not to do anything. He has indicated to me he just wants me to sit here and do nothing * * * It subjects me to two major problems down the road. Number one, if and when this case is ever appealed, if it comes to that, this issue of ineffective assistance of counsel -- and I am hoping to allay that by making a record now but still I think the argument might be made any way and any potential disciplinary complaints which would be outrageous since my hands are tied -- this is basically a "Catch 22". Because of those concerns, legitimate concerns and the unreasonable demands that are being made on me, I am going to respectfully ask to be relieved on this matter and have this defendant represent himself.

THE DEFENDANT: I didn't ask to represent myself. You can't tell me I have to represent myself.

THE COURT: You don't have to represent yourself Mr. Henriquez but I want to confirm that what your attorney is saying is true, that you have instructed him not to make an opening statement, not to cross-examine any witnesses presented by the People, not to call any witnesses yourself and on your behalf and not to make a closing statement; is that --

MR. LOVERRO: Not to object.

THE COURT: Not to object --

MR. LOVERRO: -- to any line of questioning and basically, I think the long and short of it is he doesn't want me to do anything. He just wants me to sit here.

THE COURT: Is that correct?

THE DEFENDANT: Yes.

THE COURT: You have to understand what it is that you are waiving by giving him those instructions.

THE DEFENDANT: I do.

THE COURT: What?

THE DEFENDANT: I understand.

THE COURT: Tell me what you are waiving.

THE DEFENDANT: If I feel I want to do that, it shouldn't be any problem. It shouldn't be no problem.

THE COURT: If you understand what you are doing. I just want to be sure.