People v. Termotto , 155 A.D.2d 965 ( 1989 )

— Judgment reversed on the law and new trial granted. Memorandum: Although a criminal defendant has the right to undertake his own representation, before the court can allow him to proceed pro se it must determine that the decision is knowing and intelligent (see, People v McIntyre, 36 NY2d 10, 17; People v Williams, 96 AD2d 740). In order to ascertain this, the court must undertake a searching inquiry to be assured that defendant understands the value of counsel and the dangers and disadvantages of giving up his fundamental right to counsel (see, People v Kaltenbach, 60 NY2d 797, 799; People v Anderson, 125 AD2d 580, 581). Because the trial court allowed defendant to proceed pro se without conducting a sufficiently searching inquiry, defendant’s waiver of counsel was ineffective and a new trial is required (see, People v Kaltenbach, supra; People v Sawyer, 57 NY2d 12, 21-22, cert denied 459 US 1178). Further, the mere fact that defendant had appeared pro se on a prior criminal matter does not relieve the court of its duty to conduct its own inquiry.

We have reviewed defendant’s remaining contentions and find them to be without merit.

All concur, except Callahan, J. P., and Boomer, J., who dissent and vote to affirm, in the following memorandum.