Stephen P. Sapienza, on Behalf of Alfred A. Argentine, Relator-Appellant v. Leon J. Vincent, Warden, Green Haven Corr. Facility, 534 F.2d 1007 (2d Cir. 1976). · Go Syfert
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Stephen P. Sapienza, on Behalf of Alfred A. Argentine, Relator-Appellant v. Leon J. Vincent, Warden, Green Haven Corr. Facility, 534 F.2d 1007 (2d Cir. 1976). Cases Citing This Book View Copy Cite
77 citation events (21 in the last 25 years) across 26 distinct courts.
Strongest positive: Silva v. Commissioner of Correction (ctd, 2025-04-09) · Strongest negative: Don Garriga Chapman v. United States (ca5, 1977-06-08)
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Top citers, strongest first. 39 distinct citers. How cited ↗
discussed Cited "but see" Don Garriga Chapman v. United States (2×) also: Cited "see"
5th Cir. · 1977 · signal: but see · confidence high
But see Sapeinza v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976) (distinction survives Faretta); People v. Windham, 19 Cal.3d 121 , 137 Cal.Rptr. 8 , 560 P.2d 1187 (1977) (right to defend pro se is unconditional only if invoked within a reasonable time prior to commencement of trial); People v. Reason, 37 N.Y.2d 351, 354 , 372 N.Y.S.2d 614 , 334 N.E.2d 572 (1975) (pro se motion is timely if presented prior to prosecutor’s opening statement); Barnes v. State, 258 Ark. 565 , 528 S.W.2d 370, 374 (1975).
discussed Cited as authority (rule) Silva v. Commissioner of Correction
D. Conn. · 2025 · confidence medium
“In exercising this discretion, the appropriate criteria for a trial judge to consider are the defendant’s reasons for the self-representation request, the quality of counsel representing the party, and the party’s prior proclivity to substitute counsel.” Ibid. (citing Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976)).
discussed Cited as authority (rule) Daum v. Eckert
E.D.N.Y · 2020 · signal: cf. · confidence medium
The record before me, which indicates that Daum is receiving medical care for his condition and pursuing grievances regarding the scope of that treatment through appropriate avenues, does not establish “extraordinary circumstances” that warrant bail pending resolution of his distinct federal habeas claim. have applied the same principle to delays in state collateral review, reasoning that “[w]hen a prisoner’s diligent efforts to exhaust in the state court have been unduly frustrated, . . . the prisoner need not take additional steps in the state court before he may be heard in the fede…
discussed Cited as authority (rule) State v. Flanagan
Conn. App. Ct. · 2013 · confidence medium
Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976); and a trial court faced with such an application must balance the legitimate interests of the defendant in self-representation against the potential disruption of the proceedings already in progress. ...
discussed Cited as authority (rule) State v. Jordan
Conn. · 2012 · confidence medium
As we explained in State v. Flanagan, supra, 293 Conn. at 431 , 978 A.2d 64 , assuming that a criminal defendant's request to represent himself is "informed, voluntary and unequivocal," his right "to act as his own lawyer is unqualified if invoked prior to the start of the trial." (Emphasis in original; internal quotation marks omitted.) See also Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976). [13] In the present case, once the trial court concluded that substitution of counsel was not warranted, it should have turned to the defendant's alternative request that he be allowed to represe…
discussed Cited as authority (rule) State v. Garcia
N.M. · 2011 · confidence medium
“Other considerations include ‘the reason for the request [and] the quality of the counsel representing the party.’ ” Mayes, 917 F.2d at 462 (quoting Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976)). {28} In these proceedings, Defendant did not make his pro se request until three days into the trial, indisputably invoking timeliness concerns and investing substantial discretion in the trial judge.
discussed Cited as authority (rule) State v. Flanagan
Conn. · 2009 · confidence medium
After the commencement of a trial, the right of self-representation “is sharply curtailed”; (internal quotation marks omitted) Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976); and “a trial court faced with such an application must balance the legitimate interests of the defendant in self-representation against the potential disruption of the proceedings already in progress. . . .
examined Cited as authority (rule) State v. Flanagan (4×)
Conn. App. Ct. · 2007 · confidence medium
Ed. 2d 795 (1967).” Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976) (affirming District Court’s denial of request to proceed pro se because defendant’s “public defender was competent . . . [the defendant] was obstinate, and the ill-timed request followed a torrent of abortive counsel substitutions”).
discussed Cited as authority (rule) State v. Walters
N.C. Ct. App. · 2007 · confidence medium
See Bassette v. Thompson, 915 F.2d 932, 941 (4th Cir. 1990); United States v. Dunlap, 577 F.2d 867, 868 (4th Cir. 1978) (holding that a defendant does not have an absolute right to dismiss counsel and conduct his own defense after trial has begun because of need “to minimize disruptions, to avoid inconvenience and delay, to maintain continuity, and to avoid confusing the jury”); see also United States v. Lawrence, 605 F.2d 1321 (4th Cir. 1979) (where represented defendant first asserts right to self-representation only after jury had been selected though not sworn, decision to allow pro se…
cited Cited as authority (rule) United States v. Williams
10th Cir. · 1999 · confidence medium
The trial court should also consider “the reason for the request [and] the quality of the counsel representing the party.” Id. (quoting Sapienza v. Vincent , 534 F.2d 1007, 1010 (2d Cir. 1976)).
discussed Cited as authority (rule) Larrabee v. Bartlett (2×)
N.D.N.Y. · 1997 · confidence medium
See United States v. Matsushita, 794 F.2d 46, 51-52 (2d Cir.1986); United States v. Brown, 744 F.2d 905, 908 (2d Cir.1984); Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976).
discussed Cited as authority (rule) United States v. Singleton
4th Cir. · 1997 · confidence medium
Accordingly, after trial has begun with counsel, the decision whether to allow the defendant to proceed pro se rests in the sound discretion of the trial court.1See Bassette v. Thompson, 915 F.2d 932, 941 (4th Cir. 1990); United States v. Dunlap, 577 F.2d 867, 868 (4th Cir. 1978) (holding that a defendant does not have an absolute right to dismiss counsel and conduct his own defense after trial has begun because of need "to minimize disruptions, to avoid inconvenience and delay, to maintain continuity, and to avoid confusing the jury"); see also United States v. Lawrence, 605 F.2d 1321 (4th Ci…
discussed Cited as authority (rule) United States v. Frederick Keith Singleton
4th Cir. · 1997 · confidence medium
Accordingly, after trial has begun with counsel, the decision whether to allow the defendant to proceed pro se rests in the sound discretion of the trial court. 1 See Bassette v. Thompson, 915 F.2d 932, 941 (4th Cir.1990); United States v. Dunlap, 577 F.2d 867, 868 (4th Cir.1978) (holding that a defendant does not have an absolute right to dismiss counsel and conduct his own defense after trial has begun because of need “to minimize disruptions, to avoid inconvenience and delay, to maintain continuity, and to avoid confusing the jury”); see also United States v. Lawrence, 605 F.2d 1321 (4t…
discussed Cited as authority (rule) State v. Brown (2×) also: Cited "see"
Md. · 1996 · confidence medium
See, e.g., Bassette v. Thompson, 915 F.2d 932, 941 (4th Cir.1990), cert. denied, 499 U.S. 982 , 111 S.Ct. 1639 , 113 L.Ed.2d 734 (1991); United States v. Lawrence, 605 F.2d 1321, 1324 (4th Cir.1979), cert. denied, 444 U.S. 1084 , 100 S.Ct. 1041 , 62 L.Ed.2d 770 (1980); Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976); People v. Windham, 19 Cal.3d 121 , 137 Cal.Rptr. 8 , 560 P.2d 1187, 1190-91 (1977).
cited Cited as authority (rule) Jerome Williams v. George Bartlett, Howard R. Relin, Monroe County District Attorney, Intervenor-Respondent-Appellee
2d Cir. · 1994 · confidence medium
Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976).
cited Cited as authority (rule) United States v. Robert Larry Mayes, and Dallas Earl Scott
10th Cir. · 1990 · confidence medium
Other considerations include “the reason for the request[ and] the quality of the counsel representing the party____” Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976).
cited Cited as authority (rule) Guarino v. Dunham
E.D.N.Y · 1986 · confidence medium
Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976). 4 .
discussed Cited as authority (rule) United States v. Takeo Matsushita, A/K/A \Scott Cunningham
unknown court · 1986 · confidence medium
In United States v. Brown, 744 F.2d 905, 908 (2d Cir.), cert. denied, — U.S. —, 105 S.Ct. 599 , 83 L.Ed.2d 708 (1984), we stated that the right to proceed pro se “is unqualified only if exercised before the commencement of trial.” See also Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976)(reaffirming vitality of qualified privilege rule of United States ex rel.
discussed Cited as authority (rule) Harris v. Kuhlman
E.D.N.Y · 1985 · confidence medium
See Breazeale v. Bradley, 582 F.2d 5, 6 (5th Cir.1978) (delay of state remedy for over a year amounted to “a prolonged sleep, [which] in state remedies as in the rest of us, may safely be said to evince exhaustion”); see also Pool v. Wyrick, 703 F.2d 1064, 1066 (8th Cir. 1983); Wade v. Lockhart, 674 F.2d 721, 722 (8th Cir.1982); Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976).
cited Cited as authority (rule) United States v. Wilbert Brown, Jr.
2d Cir. · 1984 · confidence medium
Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976).
discussed Cited as authority (rule) Ross v. State
Md. Ct. Spec. App. · 1983 · confidence medium
There must be a showing that the prejudice to the legitimate interests of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge’s assessment of this balance.” (Citations omitted.) Reaffirmed in Sapienza v. Vincent, 534 F.2d 1007, 1010 (2nd Cir. 1976).
cited Cited as authority (rule) John Fulford v. Ross Maggio, Jr., Warden, Louisiana State Penitentiary
5th Cir. · 1982 · confidence medium
Sapienza v. Vincient, 534 F.2d 1007, 1010 (2d Cir.1976); United States v. Lawrence, 605 F.2d 1321 (4th Cir.1979).
discussed Cited as authority (rule) Commonwealth v. Owens
Pa. · 1981 · confidence medium
See United States v. Dunlap, 577 F.2d 867 , 868-69 (4th Cir.), cert, denied, 439 U.S. 858 , 99 S.Ct. 174 , 58 L.Ed.2d 166 (1978); Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976); United States v. Dellinger, 472 F.2d 340, 408 (7th Cir. 1972), cert. denied, 410 U.S. 970 , 93 S.Ct. 1443 , 35 L.Ed.2d 706 (1973); Smith v. United States, 353 F.2d 838, 845 (D.C.
cited Cited as authority (rule) Pizarro v. Harris
S.D.N.Y. · 1981 · confidence medium
Mar. 14, 1980), quoting Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976).
cited Cited as authority (rule) United States v. Albert A. Lawrence
4th Cir. · 1979 · confidence medium
See Chapman v. United States, 553 F.2d 886, 893 (5 Cir. 1977); Sapienza v. Vincent, 534 F.2d 1007, 1010 (2 Cir. 1976).
cited Cited as authority (rule) United States v. Malizia
S.D.N.Y. · 1977 · confidence medium
Faretta does not involve motions made after the commencement of trial ..” Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976) (emphasis added).
cited Cited "see" State of Maine v. Carine Reeves
Me. · 2022 · signal: see · confidence high
See Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976).
discussed Cited "see" State v. Hardy (2×)
Md. · 2010 · signal: see · confidence high
See Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976); People v. Cummings, 4 Cal.4th 1233 , 18 Cal. Rptr.2d 796 , 850 P.2d 1, 57 (1993), cert. denied, [511] U.S. [1046], 114 S.Ct. 1576 , 128 L.Ed.2d 219 (1994); People v. Windham, 19 Cal.3d 121 , 137 Cal.Rptr. 8 , 560 P.2d 1187, 1191-92 (1977), cert. denied, 434 U.S. 848 , 98 S.Ct. 157 , 54 L.Ed.2d 116 (1977).
discussed Cited "see" State v. Flanagan (2×)
Conn. App. Ct. · 2006 · signal: see · confidence high
See Sapienza v. Vincent, 534 F.2d 1007, 1010 (2[d] Cir.1976)." O'Reilly v. New York Times Co., 692 F.2d 863, 867-68 (2d Cir.1982). [7] The facts here are undisputed that the defendant expressed his dissatisfaction with his counsel's strategy at the conclusion of the state's case.
cited Cited "see" Crawford v. Artuz
S.D.N.Y. · 2000 · signal: see · confidence high
See Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976) citing St.
examined Cited "see" Matsushita v. United States (3×) also: Cited "see, e.g."
S.D.N.Y. · 1994 · signal: see · confidence high
See Sapienza, 534 F.2d at 1010 .
discussed Cited "see" United States v. Juan Nunez (2×)
10th Cir. · 1989 · signal: see · confidence high
See Sapienza v. Vincent, 534 F.2d 1007 (2d Cir.1976) where the Second Circuit, after Faretta, adhered to an earlier decision of that court which held that once a trial had begun and the defendant is represented by counsel, the defendant's right to discharge his lawyer and to represent himself is "sharply curtailed." 3 See also Lawrence, 605 F.2d at 1324-25 . 23 As stated above, Blackie was convicted on Counts 16, 19, and 24, as well as on the conspiracy charge contained in Count 1.
cited Cited "see" John T. O'reilly, and Contemporary Mission, Inc. v. The New York Times Company
2d Cir. · 1982 · signal: see · confidence high
See Sapienza v. Vincent, 534 F.2d 1007, 1010 (2 .Cir.1976).
cited Cited "see" Commonwealth v. Chapman
Mass. App. Ct. · 1979 · signal: see · confidence high
See Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976).
discussed Cited "see" Jarrell v. Eastern Airlines, Inc.
4th Cir. · 1978 · signal: accord · confidence high
Accord, Sapienza v. Vincent, 534 F.2d 1007, 1010 (2nd Cir. 1976). 3 The reasons for limiting the right after trial has begun, as explained above, are not diminished by Far-etta and remain viable justifications for trusting this decision to the sound discretion of the trial court.
discussed Cited "see" United States v. Lenear Charles Dunlap
4th Cir. · 1978 · signal: accord · confidence high
Accord, Sapienza v. Vincent, 534 F.2d 1007, 1010 (2nd Cir. 1976). 3 The reasons for limiting the right after trial has begun, as explained above, are not diminished by Faretta and remain viable justifications for trusting this decision to the sound discretion of the trial court.
discussed Cited "see, e.g." United States v. Muyet (2×)
unknown court · 1998 · signal: see also · confidence medium
See United States v. Matsushita, 794 F.2d 46, 51 (2d Cir.1986); see also Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976).
cited Cited "see, e.g." Booker v. Kelly
W.D.N.Y. · 1986 · signal: see, e.g. · confidence low
See, e.g., Sapienza v. Vincent, 534 F.2d 1007 (2d Cir.1976).
discussed Cited "see, e.g." 15 Fair empl.prac.cas. 329, 14 Empl. Prac. Dec. P 7792 Solomon Cates, Jonathan George and James Whitehead, Jr., on Behalf of Themselves and All Others Similarly Situated v. Trans World Airlines, Inc. And Airlines Pilots Association, Defendants
2d Cir. · 1977 · signal: see also · confidence low
See also the EEOC's memorandum interpreting United Air Lines, Inc. v. Evans, supra, 431 U.S. 553 , 97 S.Ct. 1885 , 52 L.Ed.2d 571 (1977), issued subsequent to the submission of its amicus brief. 28 It cannot be denied that certain language contained in Bethlehem Steel and Acha, might be read as supporting appellants' position that a facially neutral date-of-hire seniority system violates Title VII insofar as it adversely affects identifiable victims of past discrimination. 8 The main emphasis of those cases, however, was on the question of remedy, and the language on which appellants rely can …
Retrieving the full opinion text from the archive…
Stephen P. SAPIENZA, on Behalf of Alfred A. Argentine, Relator-Appellant,
v.
Leon J. VINCENT, Warden, Green Haven Correctional Facility, Appellee
Docket 75-2078.
Court of Appeals for the Second Circuit.
Mar 26, 1976.
534 F.2d 1007
1976 U.S. App. LEXIS 12159
Burton C. Agata, Hempstead, N. Y. (Reisch, Klar & Lane, P. C., Mineóla, N. Y., of counsel), for relator-appellant., A. Seth Greenwald, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for appellee.
Moore, Feinberg, Van Graafeiland.
Cited by 57 opinions  |  Published
MOORE, Circuit Judge:

Relator-appellant, on behalf of Alfred A. Argentine, appeals from an order of the United States District Court for the Eastern District of New York (Judd, J.) dismissing without a plenary evidentiary hearing his petition for a writ of habeas corpus. The principal contention is that during a state court trial on criminal charges of forgery and larceny, Alfred A. Argentine (“Argentine”) was unconstitutionally deprived of the right to proceed pro se. We affirm the district court’s disposition of this and all other claims presented by appellant. Our reasons follow a recitation of the facts and the sundry legal proceedings which preceded this appeal.

In 1963 Argentine forged the drawer’s signature on a $356 check and entered a travel agency where he filled in the name of the payee in front of a clerk. He was indicted in Nassau County on two counts of forgery and one count of grand larceny. An attorney of the Public Defender’s Office, Mr. McDonough, was appointed to represent him.

On December 16, 1963, Mr. McDonough asked to be relieved due to appellant’s refusal to discuss the case. The motion was denied. The case came on for trial on January 6, 1964 in the Nassau County Court. The court denied an adjournment motion and Mr. McDonough’s renewed motion to be relieved as counsel, and the trial commenced. But the next day prejudicial publicity prompted a mistrial motion which was granted.

'The new trial commenced on January 20, 1964, before Judge Kelly. Various motions including once again, a motion by Mr. McDonough to be relieved as counsel and a motion by appellant himself to change venue were denied. During the course of the trial, Mr. McDonough renewed his motion to be relieved, and as the trial was nearing[*1009] its end, a motion was made for the first time on behalf of defendant to allow him to proceed pro se. These motions were also denied. Mr. McDonough also informed the court that he had located three of the seven people whom Argentine desired to call. One of the three had been subpoenaed but did not appear in court. Mr. McDonough did not think that the testimony of the other two would be helpful, and ultimately the defense rested without putting in any evidence.

Argentine was convicted of all three counts, judgment was entered and he was sentenced to concurrent imprisonment terms of ten to twenty years on the first two counts and two and one-half to ten years on the third count. This marked both the end of appellant’s trial proceedings and the beginning of a host of unsuccessful or indecisive post-judgment attacks.

On March 18, 1964, Argentine filed a notice of Appeal from the judgment to the Appellate Division, Second Department of the Supreme Court of the State of New York. The appeal was dismissed for failure to prosecute in October 1966. Leave to appeal to the Court of Appeals was denied. A motion to vacate the dismissal order was denied by the Appellate Division on April 24, 1975.

Argentine’s first coram nobis application was denied on September 25, 1964, without a hearing. The denial was affirmed by the Appellate Division on May 29, 1967.

On June 9, 1969, Argentine filed a petition for a writ of habeas corpus with the County Court in Wyoming County, New York, alleging, inter alia, that during his trial he was denied the right to proceed pro se and the right to compulsory process, improperly denied a change of venue and was prejudiced by pretrial publicity. Although hearings were completed on April 13, 1970, to date no decision has been rendered.

On December 31, 1969, the Nassau County Court, per Kelly, J., denied without a hearing Argentine’s second petition for a writ of error coram nobis. The Appellate Division reversed and remanded the petition to the County Court for a hearing. An exhaustive and comprehensive hearing was conducted by Judge Gibbons, who denied the petition. No appeal was taken.

On October 10, 1973, Argentine’s third petition for a writ of error coram nobis was denied by the Nassau County Court, per Altimari, J. After reargument, the court adhered to its denial on October 26, 1973.

Finally, Argentine initiated the instant proceedings by petitioning the District Court for the Eastern District of New York for a writ of habeas corpus. The petition alleged various denial of rights which had been raised, in one form or another, in his collateral attacks in the state courts.

THE OPINION BELOW

After reviewing the exhibits attached to the petition, additional affidavits, and the transcript of the trial and the court proceedings before Judge Gibbons and Judge Altimari, the court adopted the factual determination made by Judge Gibbons in the course of Argentine’s second application for a writ of error coram nobis. The court concluded that the fact findings were accurate and that the hearing had been thorough and fair. Noting that Argentine’s State habeas petition had been pending for over five years, the court held that despite Argentine’s failure to prosecute appeals from some of the adverse state proceedings, state remedies were exhausted. The court then proceeded to the merits and held that all of Argentine’s claims were meritless.

As to Argentine’s asserted denial of the right to counsel of his own choice, the court found that Argentine had had no available funds for the retention of counsel and that he was competently represented by Public Defender McDonough. As to Argentine’s asserted denial of compulsory process, the court determined that the prospective witnesses whom Argentine desired to have testify would have disclosed, at best, minor contradictions of prosecution witnesses on collateral points and might have linked Argentine with a bookmaking operation. The court held that McDonough’s determination not to call them was reasonable and did not deprive Argentine of a fair trial. As to[*1010] Argentine’s claimed denial of the right to confrontation and his allegation that the prosecutor suppressed material testimony, the court held that the exposure of one additional misdemeanor conviction of one of the prosecution witnesses would only have been cumulative, and that other undisclosed evidence would have been collateral. He held that the District Attorney had not deliberately concealed facts.

In the course of its consideration of Argentine’s right to counsel argument, the court summarily rejected his pro se representation claim with the observation that “the court was correct in not relieving Mr. McDonough and leaving Argentine to defend himself pro se”.

ISSUES ON APPEAL

Very few of the issues discussed in the lower court opinion merit additional comment.

Appellee does not argue that Argentine has failed to exhaust his remedies. Since Argentine’s state habeas corpus proceedings are apparently in a state of suspended animation, appellee’s circumspection is no great concession. Inordinate delay in concluding its post-judgment criminal proceedings may preclude a state from relying on the exhaustion requirement to defeat Federal review. St. Jules v. Beto, 462 F.2d 1365 (5th Cir. 1972); Smith v. Kansas, 356 F.2d 654 (10th Cir. 1966), cert. denied, 389 U.S. 871, 88 S.Ct. 154, 19 L.Ed.2d 151 (1967).

Although appellee claims that the lower court could have rested its decision on the ground of “deliberate bypass”, appellee does not argue that the court abused its discretion in not so doing and, therefore, we have no occasion to reach the issue.

The record of Judge Gibbons’ hearing confirms the lower court’s conclusion that a plenary hearing was unnecessary. That record indicates that Argentine received a full and fair hearing during which the material facts were adequately developed and the underlying factual disputes, resolved. Accordingly, the lower court properly relied on facts as found by the state court per Gibbons, J.

Judge Gibbons determined that a motion for leave to proceed pro se was not made until after the trial was nearing its end. This brings Argentine’s pro se representation claim within the ambit of United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965), cert. denied, 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966), where we held that:

“Once the trial has begun with the defendant represented by counsel, however, his right thereafter to discharge his lawyer, and to represent himself is sharply curtailed. There must be a showing that the prejudice to the legitimate interests of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge’s assessment of this balance.”

The recent Supreme Court decision, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), casts no pall on our Maldonado ruling. Faretta does not involve motions made after the commencement of trial and in that decision the Court cited (without disapproval) Maldonado which does. Faretta, supra, at 817, 95 S.Ct. at 2532, 45 L.Ed.2d at 571. Thus we adhere to Maldonado. Subsequent application of its rule indicates that the reason for the request, the quality of the counsel representing the party, and the party’s prior proclivity to substitute counsel are all appropriate criteria to be factored into the balance. See, United States v. Catino, 403 F.2d 491, 497-98 (2d Cir. 1968), cert. denied, 394 U.S. 1003, 89 S.Ct. 1598, 22 L.Ed.2d 780 (1969); United States v. Ellenbogen, 365 F.2d 982, 988-89 (2d Cir. 1966), cert. denied, 386 U.S. 923, 87 S.Ct. 892, 17 L.Ed.2d 795 (1967). These considerations dispose of Argentine’s claim. His public defender was competent. Argentine was obstinate, and the ill-timed request followed a torrent of abortive counsel substitutions.

Argentine’s faith that this pro se claim might yet be resurrected rests upon an isolated remark in the lengthy lower court opinion to the effect that Argentine asked[*1011] for leave to proceed pro se before the jury had been selected. This comment finds absolutely no support in the records which were before the lower court, and in light of Judge Gibbons’ specific finding to the contrary and the lower court’s express adoption of the entirety of Judge Gibbons’ findings, it is obvious that the remark on which Argentine relies was merely an unintentional slip.

It would be purposeless to remand the case on this issue since it is inconceivable that an evidentiary hearing would produce any more reliable a record than the one which the lower court specifically adopted. Accord, Bradley v. State of Texas, 470 F.2d 785, 788 (5th Cir. 1972); cf. United States ex rel. Berkery v. Rundle, 390 F.2d 599, 600 (3rd Cir.), cert. denied, 392 U.S. 913, 88 S.Ct. 2072, 20 L.Ed.2d 1371 (1968).

An exhaustive review of the papers submitted to the lower court, the petition and answer, and the briefs in this appeal indicates that Argentine’s remaining arguments are without merit.

The order of the District Court dismissing the petition is affirmed.