Opinion
No. KA 09-00514.
July 8, 2011.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered August 8, 2008. The judgment convicted defendant, upon a jury verdict, of predatory sexual assault against a child, criminal sexual act in the first degree and sexual abuse in the first degree (three counts).
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.
Present — Smith, J.P., Centra, Carni, Sconiers and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
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 NY Const. art I, § 6; CPL 210.15), 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 NY2d 10, 17; see People v Tabor, 48 AD3d 1096). Although defendant's request to proceed pro se was timely, inasmuch as it was made "prior to the prosecution's opening statement" ( Mclntyre, 36 NY2d at 18), the request was not unequivocal because it was made after defendant's request for new counsel was denied ( see People v Caswell, 56 AD3d 1300, 1301-1302, lv denied 11 NY3d 923, reconsideration denied 12 NY3d 781, cert denied 556 US —, 129 S Ct 2775; People v McClam, 297 AD2d 514, lv denied 99 NY2d 537).
We reject defendant's further contention that the court erred in failing sua sponte to order a competency hearing ( see People v Tortorici, 92 NY2d 757, 765-766, cert denied 528 US 834; People v Morgan, 87 NY2d 878, 879-880; People v Garrasi, 302 AD2d 981, 982-983, lv denied 100 NY2d 538). 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, lv denied 93 NY2d 1014; see Garrasi, 302 AD2d at 982-983). "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 AD3d 913, 914, lv denied 5 NY3d 788; see People v Gelikkaya, 84 NY2d 456, 460).