PEOPLE v. MAXIME (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Minardo, J.), rendered November 22, 1996, convicting him of assault in the second degree (two counts) and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

 Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of reckless endangerment in the first degree beyond a reasonable doubt (see, e.g., People v. Perkins, 177 A.D.2d 720, 577 N.Y.S.2d 89).   Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).   Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).   Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

However, at the close of the People's case, the defendant expressed dissatisfaction with his assigned counsel and requested a new attorney.   The court refused this request and provided the defendant with the option of continuing with his attorney or proceeding pro se, but at no time did the court warn the defendant as to the risks inherent in proceeding pro se.   The defendant decided to act as his own attorney during a portion of the trial.

 A defendant's implied waiver of his right to counsel is ineffective absent “a sufficiently ‘searching inquiry’ of the defendant to be reasonably certain that the ‘dangers and disadvantages' of giving up the fundamental right to counsel have been impressed on the defendant” (People v. Slaughter, 78 N.Y.2d 485, 491, 577 N.Y.S.2d 206, 583 N.E.2d 919, quoting People v. Sawyer, 57 N.Y.2d 12, 21, 453 N.Y.S.2d 418, 438 N.E.2d 1133, cert. denied 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1024;  see, Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562).   Here, the court's failure to make any inquiry, or in any way warn the defendant concerning the risks of proceeding pro se, makes the defendant's waiver of his right to counsel ineffective (see, People v. Slaughter, supra).   That failure constitutes reversible error (see, People v. Anderson, 125 A.D.2d 580, 510 N.Y.S.2d 4;  People v. Bonds, 99 A.D.2d 759, 471 N.Y.S.2d 677).

The defendant's remaining contention is without merit.

MEMORANDUM BY THE COURT.