Opinion
December 22, 1986
Appeal from the Supreme Court, Queens County (Lakritz, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and have been determined to have been established.
On appeal, the defendant, who proceeded pro se at trial, contends that the trial court failed to adequately advise him of the perils of self-representation, thereby mandating a new trial. We agree and accordingly reverse.
"Regardless of his lack of expertise and the rashness of his choice, defendant could choose to waive counsel if he did so knowingly and voluntarily" (People v. Vivenzio, 62 N.Y.2d 775, 776). Implicit in a decision to defend pro se is a concomitant decision to disavow the constitutional right to counsel. For the election to waive counsel to be effective, assuming it was timely, the court must insure that it was made competently, intelligently and voluntarily and that the defendant was aware of the dangers and disadvantages of self-representation before being allowed to proceed (People v. Smith, 68 N.Y.2d 737, cert denied ___ US ___, 93 L Ed 2d 392; People v. McIntyre, 36 N.Y.2d 10, 17). In order to ascertain this, the trial court should undertake a sufficiently searching inquiry to assure itself that the dangers and disadvantages attendant upon forfeiture of the fundamental right to counsel are appreciated by the defendant (People v Kaltenbach, 60 N.Y.2d 797, 798-799; People v. Sawyer, 57 N.Y.2d 12, 21 rearg dismissed 57 N.Y.2d 776, cert denied 459 U.S. 1178).
The record before us is devoid of any warning by the trial court with respect to the hazards of self-representation. Such failure to inform is not subject to harmless error analysis (see, People v. Bonds, 99 A.D.2d 759). Accordingly, a new trial is mandated.
We have considered the defendant's other contention and find it to be without merit. Mollen, P.J., Brown, Weinstein and Rubin, JJ., concur.