Opinion
November 13, 1998
Appeal from the Ontario County Court, Harvey, J. — Burglary, 2nd Degree.
Present — Denman, P. J., Green, Pine, Hayes and Boehm, JJ.
Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant appeals from a judgment convicting him of four counts of burglary in the second degree (Penal Law § 140.25) and nine counts each of petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40). He contends that County Court erred in permitting him to proceed pro se, with standby counsel, because the trial court did not undertake a searching inquiry of defendant at the time of defendant's request to proceed pro se (see, People v. Sawyer, 57 N.Y.2d 12, 21, rearg dismissed 57 N.Y.2d 776, cert denied 459 U.S. 1178). In view of defendant's age, extensive criminal history, pro se motion practice even when represented by counsel, competent cross-examination of prosecution witnesses, proper objections to admission of evidence and appropriate use of standby counsel, we conclude that defendant knowingly and intelligently waived his right to counsel ( see, People v. Vivenzio, 62 N.Y.2d 775, 776; People v. Reifsteck, 134 A.D.2d 876, 876-877, lv denied 70 N.Y.2d 1010).
Defendant further contends and the People concede that the court erred in imposing a surcharge of 10% of the amount of restitution ordered rather than the 5% directed by Penal Law § 60.27 (8). The imposition of the additional 5% surcharge was not authorized ( see, People v. Gahrey M. O., 231 A.D.2d 909). We modify the judgment by vacating that part of the sentence ordering defendant to pay an additional 5% surcharge in addition to the 5% surcharge directed by Penal Law § 60.27 (8).