| People v Chicherchia |
| 2011 NY Slip Op 05890 [86 AD3d 953] |
| July 8, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael T.Chicherchia, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedAugust 8, 2008. The judgment convicted defendant, upon a jury verdict, of predatory sexualassault against a child, criminal sexual act in the first degree and sexual abuse in the first degree(three counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,predatory sexual assault against a child (Penal Law § 130.96), defendant contends thatCounty Court erred in failing to grant his request to proceed pro se. We reject that contention. Adefendant has the right to self-representation (see NY Const, art I, § 6; CPL 210.15[5]), and he or she may invoke that right "provided [that]: (1) the request is unequivocal andtimely asserted[;] (2) there has been a knowing and intelligent waiver of the right to counsel[;]and (3) the defendant has not engaged in conduct [that] would prevent the fair and orderlyexposition of the issues" (People v McIntyre, 36 NY2d 10, 17 [1974]; see People v Tabor, 48 AD3d1096 [2008]). Although defendant's request to proceed pro se was timely, inasmuch as it wasmade "prior to the prosecution's opening statement" (McIntyre, 36 NY2d at 18), therequest was not unequivocal because it was made after defendant's request for new counsel wasdenied (see People v Caswell, 56AD3d 1300, 1301-1302 [2008], lv denied 11 NY3d 923 [2009], reconsiderationdenied 12 NY3d 781 [2009], cert denied 556 US —, 129 S Ct 2775 [2009];People v McClam, 297 AD2d 514 [2002], lv denied 99 NY2d 537 [2002]).
We reject defendant's further contention that the court erred in failing sua sponte to order acompetency hearing (see People v Tortorici, 92 NY2d 757, 765-766 [1999], certdenied 528 US 834 [1999]; People v Morgan, 87 NY2d 878, 879-880 [1995];People v Garrasi, 302 AD2d 981, 982-983 [2003], lv denied 100 NY2d 538[2003]). The court "had the opportunity to interact with and observe defendant . . . ,[and thus] the court had adequate opportunity to properly assess defendant's competency"(People v Bolarinwa, 258 AD2d 827, 831 [1999], lv denied 93 NY2d 1014[1999]; see Garrasi, 302 AD2d at 982-983). "Moreover, [we] note[ ] that defense counseldid not request a hearing and, as it has been observed, [defense] counsel was in the best positionto assess defendant's capacity and request an examination" pursuant to CPL 730.30 (People v Ferrer, 16 AD3d 913,914 [2005], lv denied 5 NY3d 788 [2005]; see People v Gelikkaya, 84 NY2d456, 460 [1994]). Present—Smith, J.P., Centra, Carni, Sconiers and Gorski, JJ.