PEOPLE v. CHICHERCHIA

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Michael T. CHICHERCHIA, Defendant–Appellant.

Decided: July 08, 2011

PRESENT:  SMITH, J.P., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ. Frank J. Nebush, Jr., Public Defender, Utica (Mark C. Curley of Counsel), for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.

 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 that County Court erred in failing to grant his request to proceed pro se.   We reject that contention.   A defendant has the right to self-representation (see N.Y. Const., art. I, § 6;  CPL 210.15[5] ), and he or she may invoke that right “provided [that]:  (1) the request is unequivocal and timely 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 orderly exposition of the issues” (People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322;  see People v. Tabor, 48 A.D.3d 1096, 849 N.Y.S.2d 852).   Although defendant's request to proceed pro se was timely, inasmuch as it was made “prior to the prosecution's opening statement” (McIntyre, 36 N.Y.2d at 18, 364 N.Y.S.2d 837, 324 N.E.2d 322), the request was not unequivocal because it was made after defendant's request for new counsel was denied (see People v. Caswell, 56 A.D.3d 1300, 1301–1302, 867 N.Y.S.2d 638, lv. denied 11 N.Y.3d 923, 874 N.Y.S.2d 8, 902 N.E.2d 442, 12 N.Y.3d 781, 879 N.Y.S.2d 58, 906 N.E.2d 1092, cert. denied ––– U.S. ––––, 129 S.Ct. 2775, 174 L.Ed.2d 278;  People v. McClam, 297 A.D.2d 514, 747 N.Y.S.2d 75, lv. denied 99 N.Y.2d 537, 752 N.Y.S.2d 598, 782 N.E.2d 576).

 We reject defendant's further contention that the court erred in failing sua sponte to order a competency hearing (see People v. Tortorici, 92 N.Y.2d 757, 765–766, 686 N.Y.S.2d 346, 709 N.E.2d 87, cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80;  People v. Morgan, 87 N.Y.2d 878, 879–880, 638 N.Y.S.2d 942, 662 N.E.2d 260;  People v. Garrasi, 302 A.D.2d 981, 982–983, 754 N.Y.S.2d 799, lv. denied 100 N.Y.2d 538, 763 N.Y.S.2d 4, 793 N.E.2d 418).   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 A.D.2d 827, 831, 687 N.Y.S.2d 442, lv. denied 93 N.Y.2d 1014, 697 N.Y.S.2d 573, 719 N.E.2d 934;  see Garrasi, 302 A.D.2d at 982–983, 754 N.Y.S.2d 799).  “Moreover, [we] note [ ] that defense counsel did not request a hearing and, as it has been observed, [defense] counsel was in the best position to assess defendant's capacity and request an examination” pursuant to CPL 730.30 (People v. Ferrer, 16 A.D.3d 913, 914, 791 N.Y.S.2d 721, lv. denied 5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669;  see People v. Gelikkaya, 84 N.Y.2d 456, 460, 618 N.Y.S.2d 895, 643 N.E.2d 517).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: