| People v Wilson |
| 2013 NY Slip Op 00642 [103 AD3d 1178] |
| February 1, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vCharles R. Wilson, Appellant. |
—[*1] Brooks T. Baker, District Attorney, Bath (Amanda M. Chafee of counsel), forrespondent.
Appeal from an order of the Steuben County Court (Joseph W. Latham, J.), enteredMay 5, 2011. The order determined that defendant is a level three risk pursuant to theSex Offender Registration Act.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw without costs, and the matter is remitted to Steuben County Court for furtherproceedings in accordance with the following memorandum: Defendant appeals from anorder determining that he is a level three risk under the Sex Offender Registration Act([SORA] Correction Law § 168 et seq.). We agree with defendant thatCounty Court did not perform the requisite searching inquiry when evaluatingdefendant's request to proceed pro se, and we therefore reverse the order and remit thematter to County Court for a new SORA proceeding in accordance with defendant's rightto counsel (see generally Peoplev Allen, 99 AD3d 1252, 1253 [2012]).
It is well settled that defendants have a statutory right to counsel in SORAproceedings (see Correction Law § 168-n [3]; People v David W.,95 NY2d 130, 138 [2000]; People v Bowles, 89 AD3d 171, 178-179 [2011], lvdenied 18 NY3d 807 [2011]; People v Wyatt, 89 AD3d 112, 117 [2011], lvdenied 18 NY3d 803 [2011]). A defendant's right to proceed pro se is also wellsettled (see People v McIntyre, 36 NY2d 10, 17 [1974]). In order to invoke thatright, however, "(1) the request [must be] unequivocal and timely asserted, (2) there[must be] a knowing and intelligent waiver of the right to counsel, and (3) the defendant[must not have] engaged in conduct which would prevent the fair and orderly expositionof the issues" (id.; seePeople v Chicherchia, 86 AD3d 953, 954 [2011], lv denied 17 NY3d952 [2011]). "If a timely and unequivocal request has been asserted, then the trial court isobligated to conduct a 'searching inquiry' to ensure that the defendant's waiver isknowing, intelligent, and voluntary" (Matter of Kathleen K. [Steven K.], 17 NY3d 380, 385[2011]; see People v Crampe, 17 NY3d 469, 481-482 [2011]). The requisiteinquiry " 'should affirmatively disclose that a trial court has delved into a defendant's age,education, occupation, previous exposure to legal procedures and other relevant factorsbearing on a competent, intelligent, voluntary waiver' " (People v Arroyo, 98NY2d 101, 104 [2002], quoting People v Smith, 92 NY2d 516, 520 [1998]).
Here, the trial court failed to conduct the necessary "searching inquiry" to ensure that[*2]defendant's waiver of the right to counsel wasunequivocal, voluntary, and intelligent (Allen, 99 AD3d at 1253 [internalquotation marks omitted]). The only statement made by the court regarding the dangersof proceeding pro se was the comment, "[y]ou might be better served by going with youroriginal impulse to have assigned counsel represent you." The court did not inquire aboutdefendant's age, experience, intelligence, education, or exposure to the legal system, nordid it explain the risk inherent in proceeding pro se or the advantages of representationby counsel (see People vLott, 23 AD3d 1088, 1089 [2005]). The court's failure to conduct a searchinginquiry renders defendant's waiver of the right to counsel invalid and requires reversal(see Crampe, 17 NY3d at 481-482; see also Allen, 99 AD3d at 1253;Lott, 23 AD3d at 1089-1090).
In light of our decision, we do not address defendant's remaining contentions.Present—Smith, J.P., Peradotto, Lindley, Sconiers and Valentino, JJ.