        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

829
KA 09-00514
PRESENT: SMITH, J.P., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL T. CHICHERCHIA, DEFENDANT-APPELLANT.


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.


     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).

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

     Memorandum: 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 [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 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” (McIntyre,
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, 12 NY3d 781,
cert denied ___ 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,
                                 -2-                           829
                                                         KA 09-00514

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).




Entered:   July 8, 2011                        Patricia L. Morgan
                                               Clerk of the Court
