People v. Vivenzio

— Judgment reversed, on the law, and new trial granted. Memorandum: Prior to the prosecutor’s opening statement, defendant requested permission to represent himself on charges of attempted burglary in the third degree and possession of burglar’s tools. The trial court, without questioning the defendant in any significant way, granted his request but ordered counsel previously assigned to stand by throughout the trial. The defendant conducted the examination of each witness and made his own summation. He was convicted of both charges. A defendant may invoke the right to proceed pro se provided there has been a knowing and intelligent waiver of his right to counsel (People v McIntyre, 36 NY2d 10,17). The trial court must undertake a searching inquiry of the defendant to be certain that he is fully aware of the risks in surrendering this fundamental right (People v Sawyer, 57 NY2d 12, 21, cert den _ US _, 103 S Ct 830; People v White, 56 NY2d 110, 117). Although there is no formal hearing prescribed for this purpose, the colloquy between the Judge and the defendant should include at least an inquiry into “the defendant’s age, education, occupation and previous exposure to legal procedures” (People v McIntyre, supra, p 17). So measured, the inquiry in this case was clearly inadequate. Had the Trial Judge inquired, he would have learned that the defendant was a 20-year-old, unskilled, unemployed, high school student in receipt of public assistance. He also would have discovered that defendant had a prior criminal record including a felony conviction but had no prior courtroom experience because the charges were resolved by plea or dismissal. The trial court’s curt warning that defendant would be held to the same standard as any lawyer did not satisfy his duty to conduct a searching inquiry (People v Williams, 96 AD2d 740; People v Barnhill, 92 AD2d 759). Accordingly, defendant must be granted a new trial. In view of our disposition we find it unnecessary to reach the other points raised by defendant. Concur — Doerr, Denman and Green, JJ.