Opinion
2013-02-1
The PEOPLE of the State of New York, Respondent, v. Charles R. WILSON, Defendant–Appellant.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for Defendant–Appellant. Brooks T. Baker, District Attorney, Bath (Amanda M. Chafee of Counsel), for Respondent.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for Defendant–Appellant. Brooks T. Baker, District Attorney, Bath (Amanda M. Chafee of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from an order determining that he is a level three risk under the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.). We agree with defendant that County Court did not perform the requisite searching inquiry when evaluating defendant's request to proceed pro se, and we therefore reverse the order and remit the matter to County Court for a new SORA proceeding in accordance with defendant's right to counsel ( see generally People v. Allen, 99 A.D.3d 1252, 1253, 951 N.Y.S.2d 822).
It is well settled that defendants have a statutory right to counsel in SORA proceedings ( seeCorrection Law § 168–n[3]; People v. David W., 95 N.Y.2d 130, 138, 711 N.Y.S.2d 134, 733 N.E.2d 206;People v. Bowles, 89 A.D.3d 171, 178–179, 932 N.Y.S.2d 112,lv. denied18 N.Y.3d 807, 2012 WL 489796;People v. Wyatt, 89 A.D.3d 112, 117, 931 N.Y.S.2d 85,lv. denied18 N.Y.3d 803, 2012 WL 43762). A defendant's right to proceed pro se is also well settled ( see People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322). In order to invoke that right, 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 exposition of the issues” ( id.; see People v. Chicherchia, 86 A.D.3d 953, 954, 926 N.Y.S.2d 795,lv. denied17 N.Y.3d 952, 936 N.Y.S.2d 78, 959 N.E.2d 1027). “If a timely and unequivocal request has been asserted, then the trial court is obligated to conduct a ‘searching inquiry’ to ensure that the defendant's waiver is knowing, intelligent, and voluntary” ( Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 385, 929 N.Y.S.2d 535, 953 N.E.2d 773;see People v. Crampe, 17 N.Y.3d 469, 481–482, 932 N.Y.S.2d 765, 957 N.E.2d 255). The requisite inquiry “ ‘should affirmatively disclose that a trial court has delved into a defendant's age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver’ ” ( People v. Arroyo, 98 N.Y.2d 101, 104, 745 N.Y.S.2d 796, 772 N.E.2d 1154, quoting People v. Smith, 92 N.Y.2d 516, 520, 683 N.Y.S.2d 164, 705 N.E.2d 1205).
Here, the trial court failed to conduct the necessary “searching inquiry” to ensure that defendant's waiver of the right to counsel was unequivocal, voluntary, and intelligent ( Allen, 99 A.D.3d at 1253, 951 N.Y.S.2d 822 [internal quotation marks omitted] ). The only statement made by the court regarding the dangers of proceeding pro se was the comment, “[y]ou might be better served by going with your original impulse to have assigned counsel represent you.” The court did not inquire about defendant's age, experience, intelligence, education, or exposure to the legal system, nor did it explain the risk inherent in proceeding pro se or the advantages of representation by counsel ( see People v. Lott, 23 A.D.3d 1088, 1089, 804 N.Y.S.2d 881). The court's failure to conduct a searching inquiry renders defendant's waiver of the right to counsel invalid and requires reversal ( see Crampe, 17 N.Y.3d at 481–482, 932 N.Y.S.2d 765, 957 N.E.2d 255;see also Allen, 99 A.D.3d at 1253, 951 N.Y.S.2d 822;Lott, 23 A.D.3d at 1089–1090, 804 N.Y.S.2d 881).
In light of our decision, we do not address defendant's remaining contentions.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, and the matter is remitted to Steuben County Court for further proceedings.