The opinion of the Court was delivered by
The sole issue is whether defendant, Joseph Nicholas Crisafi, knowingly and intelligently waived his right to counsel before proceeding
pro se
at his trial for aggravated sexual assault and related charges. A jury convicted defendant, but the Appellate Division reversed, finding that he had not so waived that right. 247
KJ.Super.
486,
On November 5, 1980, defendant and his girlfriend, Carol Terranova, while using false names and posing as representatives of a fictitious modeling agency, visited the home of the victim, S.K., to discuss the possibility of a modeling career. Crisafi told the victim that she would make a “perfect” lingerie model, and photographed her twice in the living room, while she was fully clothed. He then told S.K. that he would like a photograph of her in her undergarments and that because S.K. was apprehensive, Terranova would take the photographs. The victim agreed, and she and Terranova went upstairs to the victim’s bedroom, where Terranova photographed her. When Terranova showed the photographs to defendant, he said he was dissatisfied with them, and he directed Terranova to take additional pictures. Terranova then requested the victim to remove her underwear. S.K. agreed “as long as [Terranova] was taking the picture.” After taking one photograph, Terra-nova went downstairs and gave the photograph to defendant, who told Terranova to “go sit out in the car and wait for him.”
Defendant then went upstairs and sexually assaulted the victim. We need not describe in detail the indignities that defendant visited on S.K. Suffice it to state that at gunpoint, he forced her to perform fellatio, attempted to strangle her, and inserted his finger into her vagina. Defendant also poked the *504 victim in the abdomen with a letter opener and punched her repeatedly. As he attempted to bind the victim’s ankles, she broke free and escaped to a neighbor’s house.
Defendant was indicted for first-degree aggravated sexual assault (N.J.S.A. 2C:14-2), first-degree armed robbery (N.J.S.A. 2C:15-1), second-degree aggravated assault (N.J.S.A. 2C:12-lb(l), third-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5b), fourth-degree possession of a weapon (the letter opener) under circumstances not manifestly appropriate for a lawful purpose (N.J.S.A. 2C:39-5d), and second-degree possession of a handgun and a letter opener for an unlawful purpose (N.J.S.A. 2C:39-4a). A warrant was issued on December 8, 1980, for defendant’s arrest. More than five years later, in August 1986, defendant was arrested in Texas and extradited in February 1987 to New Jersey.
To evaluate defendant’s сlaim that he did not knowingly and intelligently waive his right to counsel, we review in some detail the pre-trial proceedings. Defendant first appeared before the trial court for arraignment on March 13, 1987. By that date he had not yet established his eligibility for representation by the Public Defender, so a pool attorney, Harold Fullilove, appeared for him. On behalf of defendant, Fullilove entered a not-guilty plea and waived a reading of the indictment. Defendant then excused Fullilove so defendant could argue pro se two motions, one for a writ of habeas corpus and the other for discovery.
The Public Defender assigned another attorney, Anthony Blasi, to represent defendant, but Mr. Blasi declined the assignment. Mr. Fullilove accompanied defendant on his next appearance before the court. Defendant informed the court that Blasi had withdrawn from the case because of Blasi’s semi-retired status and heavy caseload. Mr. Blasi, however, advised the court that he had withdrawn as defendant’s counsel because he and defendant disagreed about trial strategy.
On May 22, 1987, defendant and Mr. Fullilove appeared a third time, at which time the following colloquy occurred:
*505 THE COURT: Mr. Crisafi, we have Mr. Fullilove who, I understand, has been designated to represent you.
********
THE DEFENDANT: I decline representation of this counsel at this time. I have—
THE COURT: You mean you want to represent yourself?
THE DEFENDANT: No, not really. I would like representation, and if it’s necessary, I will go in pro se rather than—
THE COURT: That’s up to you, but I’m not going to allow you to make a choice as to who is going to represent you.
THE DEFENDANT: All right, your Honor, then I will represent myself.
THE COURT: That’s up to you. I will have to ask counsel to sit by to assist you with whatever technicalities of the law you may be advised of.
Defendant then argued motions, one to dismiss the indictment for reasons of delay and the other to reduce bail. At the conclusion of the proceedings, the following exchange took place:
THE COURT: Mr. Crisafi, wait just a moment. Let’s get something straight. Either you are going to be represented by counsel, or you are going to do the talking, either way, make up your mind.
«««««♦Hi*
[The following took place at sidebar]
MR. FULLILOVE: I have had the opportunity to talk to Mr. Crisafi, about the issue of representation and what he’s expressed to me could readily be described as his view of trial tactics. I can’t say that they are at all unfounded. I mean, I can understand the tactics he wishes to employ, but I’m in a position where I can’t do anything at this stage. I can understand his tactics. I don’t want to put them on thе record because I might be violating what he has told me.
THE COURT: You probably would be. Go ahead.
MR. FULLILOVE: But I would like the opportunity — It’s going to be difficult for me to sit here and advise him when in fact perhaps what would make most sense is to go to the Public Defender and see if they couldn’t in fact assign an attorney.
THE COURT: As far as I understand, you are assigned to represent him.
MR. FULLILOVE: Yes, and that’s not going to make.
THE COURT: He is going to make his choice. I can’t let him decide who’s going to represent him in the Public Defender’s office. He is not going to have that choice, and I will tell him that. He either has to decide that he’s going to try it himself, with a Public Defender assisting him in the technical aspects, or he will be bound by a lawyer representing him. I won’t play games with him, and I’m going to make that clear.
*506 The trial court then gave defendant until May 27 to decide whether to proceed with assigned counsel or to try the case on his own with the assistance of standby counsel.
Defendant informed the court on August 2, 1987, that he had dismissed Fullilove. In reply, on August 7,1987, the court sent a letter informing defendant that the Public Defender would not assign a different attorney to represent him. The court warned defendant that “if you persist in your refusal to have him try this case in your behalf, you will be placed in the position of trying this case pro se with Mr. Fullilove sitting with you to assist you with all the legal technicalities involved.” The court appointed Jed-Matthew Philwin, a private attorney, to appear on defendant’s behalf at all subsequent pre-trial motions. During one of his appearances with Philwin, the court engaged defendant in the following discussion:
THE COURT: Before we proceed, Mr. Crisafi, I want to clear the air as to one point. Some time ago there was a discussion held in this Court at which time you indicated you did not want Mr. Fullilove. Do you remember?
MR. CRISAFI: Absolutely.
THE COURT: And I told you that the Court at that time had contacted the Public Defender’s Office to obtain new counsel for you and they said they would not, that you were obligated to take Mr. Fullilove or go pro se. And I mentioned that to you and you said that being the case you would go pro se.
MR. CRISAFI: No, I did not, sir.
THE COURT: All right. I think the record will indicate otherwise. I think the record indicates otherwise. I never would have proceeded.
MR. PHILWIN: Your Honor, if I may intercede here. I had spoken with Mr. Crisafi about a week and a half ago and I don’t know exactly what the words are going to be on the record, but he indicated to me that he felt he was being forced to go pro se. He said he just didn’t want to have Mr. Fullilove as his attorney. The issue was then from the Public Defender’s stаndpoint — Office of the Public Defender that they do not have to give a defendant a selection of attorney.
THE COURT: Yes.
MR. PHILWIN: At that point the Office of the Public Defender is out of the case. I am here, my understanding is anyway, I am here as a courtesy to the Court.
THE COURT: That’s right.
MR. PHILWIN: Whether that be in the capacity to sit here—
*507 THE COURT: This is why I say if Mr. Crisafi is willing to have you represent you [sic] and you are willing to represent him, by all means, this Court will accept that willingly. But, I cannot have you appearing without—
MR. CRISAFI: I feel that I’m—
THE COURT: —they said they will not assign a Public Defender to you—
MR. CRISAFI: I feel that I’m being denied by [sic] right to counsel.
THE COURT: No, you are not. That’s the law.
MR. CRISAFI: I think I showed an adequate case. I have sufficient letters sent to you and to Mr. Fullilove and to the Public Defender to show that Mr. Fullilove was not representing me.
THE COURT: That is something between you and the Public Defender’s Office. They have said they would not assign another attorney. If you are willing to accept Mr. Philwin’s offer, fine, but they will not assign anyone and I will have Mr. Philwin, at the request of this Court, sit in with you if you want to try the case yourself.
MR. CRISAFI: I am being forced to try it. There is no other alternative.
THE COURT: No, you are not being forced. It is an election you are making. I am telling you that the Public Defender will not assign. Your argument is with the Public Defender, not with me.
MR. CRISAFI: I realize that, your Honor.
THE COURT: If you are willing to have Mr. Philwin try this case for you as your attorney, he has indicated that he is willing to do so if we requested.
MR. CRISAFI: I realize that I don’t have a Constitutional right to decide how my attorney is going to represent me, but I did prematurely speak to the attorney and he had an opinion that I couldn’t go along with of how to handle the defense. It was an intelligent explanation he gave me, but it wasn’t one that I would want to handle my defense.
THE COURT: Are you willing to have Mr. Philwin try the case?
MR. CRISAFI: That’s who I’m talking about. We discussed — he was advising me freely. The way he explained it to me, that he would handle my defense in this matter is not to my—
THE COURT: I have no choice but to say then the case will go on with Mr. Philwin sitting in to advise you as to the techniсalities of the law.
********
THE COURT: If he’s willing to proceed in that way [with Philwin as standby counsel], I have no objection. But, I have no control over whom the Public Defender will assign to him. As long as, Mr. Philwin, you and Mr. Crisafi understand that if he tries the case he’s going to be subject as any other person trying a case to the Rules and Regulations of the law as to the trial of this procedure.
On December 9,1987, the court engaged in a final conversation with defendant regarding his counsel:
THE COURT: * * * Another question I want to ask you, I want you to fully understand that if it is your intention to try the case yourself with Mr. Philwin *508 sitting alongside to advise you as to the rules and court procedures, you’re going to be tried just as if I’m treating any other attorney practicing here. You’re subject to the rules of court. Do you understand that?
MR. CRISAFI: Fully.
THE COURT: And if I want to find out now if it is your intention to represent yourself or whether you want Mr. Philwin to try this case for you.
MR. CRISAFI: If I may be permitted to repeat myself. I’m sure Mr. Philwin is competent. I do not agree in Mr. Philwin’s line of defense on my behalf. Therefore I cannot have Mr. Philwin represent me.
Defendant then argued that he had been denied the right to counsel of his choice. The trial court disagreed. After reciting the history of defendant’s contentious relationships with counsel, the court аsked defendant whether he wanted Mr. Philwin to represent him:
MR. CRISAFI: Well, the learned counsel that is with me now, it’s his strategy that I disagree with which is just simply let the State prove their case. That’s a very good schoolboy version of a defense but in this case—
THE COURT: Do you want Mr. Philwin to represent you or not?
MR. CRISAFI: No, thank you. I do not.
THE COURT: You’ll have to try the case yourself with Mr. Philwin advising you as to the technicalities involved in this case.
Defendant represented himself during the ensuing five-day trial, with Philwin present as standby counsel. The two conferred on several occasions during trial. At the trial’s conclusion, Philwin revealed that defendant repeatedly failed to heed his advice. The jury found defendant guilty of аll charges, except unlawful possession of a handgun, and the trial court sentenced him to an aggregate term of forty-five years with twenty-two and one-half years of parole ineligibility.
-II-
The Sixth Amendment of the United States Constitution and article 1, paragraph 10 of the New Jersey Constitution guarantee a criminal defendant the right to counsel at trial. The Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, * * * to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulso *509 ry process for obtaining witnesses in his favor; and to have the Assistance of Counsel for his defence.
In virtually identical language, article 1, paragraph 10 provides:
In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel in his defense.
The Sixth Amendment “embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.” Johnson v. Zerbst, 304 U.S. 458, 462-63, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461, 1465-66 (1938). Assistance of counsel is essential to ensuring fairness and due process in criminal prosecutions. State v. Sugar, 84 N.J. 1, 16, 417 A. 2d 474 (1980). Without counsel, the right to a fair trial would mean little, for it is through counsel that defendants secure their other rights. Kimmelman v. Morrison, 477 U.S. 365, 377, 106 S.Ct. 2574, 2584, 91 L.Ed.2d 305, 320 (1986).
Defendants possess not only the right to counsel, but the right to dispense with counsel and to proceed
pro se. Faretta v. California,
422
U.S.
806, 95
S.Ct.
2525,
It is for the court to determine whether an accused has knowingly and intelligently waived that right and to establish the waiver on the record.
Zerbst, supra,
304
U.S.
at 465, 58
S.Ct.
at 1023, 82
L.Ed.
at 1467;
see State v. Buonadonna,
122
N.J.
22, 35,
To be valid such waiver [of trial counsel] must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understanding^ and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tenderеd.
[Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309, 321 (1948) (plurality opinion).]
The Appellate Division has consistently required trial judges to engage in a searching inquiry with defendants seeking to proceed
pro se. See, e.g.,
247
N.J.Super.
at 495-96,
To ensure that a waiver of counsel is knowing and intelligent, the trial court should inform
pro se
defendants of the nature of the charges against them, the statutory defenses to those charges, and the possible range of punishment.
United States v. Padilla,
819
F.2d
952, 957 (10th Cir.1987);
United States v. McDowell,
814
F.2d
245, 251 (6th Cir.) (using model guidelines from 1
Bench Book for United States District Judges
1.02-2 to -5 (3d ed. 1986)), cert.
denied,
484
US.
980, 108
S.Ct.
478,
In general, the court should also inform defendants of the technical problems they may encounter in acting as their own counsel and of the risks they take if their defense is
*512
unsuccessful.
United States v. Welty,
We agree with the Appellate Division, 247 NJ.Super. at 496, 589 A. 2d 1033, that the record does not demonstrate that the trial court engaged in the necessary colloquy. The court told defendant that “he’s going to be subject as any other person trying a case to the Rules and Regulations and the law as to the trial of this procedure” and repeatedly asked defendant to choose between his assigned attorney and proceeding pro se. It, however, did not notify him on the record of the charges against him, possible sentences, and the dangers of proceeding without counsel.
-III-
In the general run of cases, the failure of the trial court to advise the defendant would compel reversal of a conviction. That failure, however, does not end our inquiry whether a defendant has waived counsel knowingly and intelligently. The purpose of giving a defendant an extensive warning is to ensure that he or she understands the consequences of the waiver. Thus, the ultimate focus must be on the defendant’s actual understanding of the waiver of counsel.
United States v. Balough,
Defendant presents this Court with just such a rare case. The record demonstrates that he is a court-wise criminal who fully appreciated the risks of proceeding without counsel, and that he decided to proceed
pro se
with his eyes open.
Faretta, supra,
422
U.S.
at 835, 95
S.Ct.
at 2541, 45
L.Ed.2d
at 582. Defendant’s background and experience support the conclusion that he knew the pitfalls of trying his own case.
See Zerbst, supra,
304
U.S.
at 464, 58
S.Ct.
at 1023, 82
L.Ed.
at 1466 (“The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”). He was fifty-seven years old at the time of the trial and had extensive experience with the criminal justice system.
*514
His adult criminal record, which includes convictions for grand larceny, grand theft, and petty larceny, also includes a rape conviction in 1960 in California and a sexual abuse conviction in 1971 in New York.
See Government of the Virgin Islands v. James,
934
F.2d
468, 474 (3d Cir.1991) (defendant, tried and convicted twice before, knowingly and intelligently waived counsel);
Stozier v. Newsome (Strozier
I),
Although the trial court failed to inform defendant of the charges against him, the sentencing alternatives, and specific pitfalls of proceeding pro se, the record indicates that defendant was sufficiently informed on those issues to waive counsel. Defendant was aware of the charges and the potential penalties. He indicated to the trial court that during his arraignment in Texas and before his extradition to New Jersey he had notice of the charges. See United States v. McFadden, 630 F. 2d 963, 972 (3d Cir.1980) (defendant made aware of charges and penalties in prior appearances before magistrate), cert. denied, 450 U.S. 1043, 101 S.Ct. 1763, 68 L.Ed.2d 241 (1981). On two occasions, defendant discussed with the trial court the number of counts in the indictment. Defendant listed the charges against him in his application to the Public Defender and in his subsequent motion for assignment of counsel. Finally, while conducting cross-examination of Carol Terranova, who had testified for the State, he demonstrated his ability to determine the maximum sentence to which he was exposed:
THE COURT: The question is do you know how much time you may face as a result of the charges against you?
THE WITNESS: No, I don’t.
Q. [MR. CRISAFI]: This lawyer, excuse my back, please, this lawyer never told you what the consequences of this alleged—
A. [THE WITNESS]: He told me there could be a lot of possible consequences, yes.
Q. [MR. CRISAFI]: We have sections that you could just look up that says this crime incurs this much in this state. It is specified—
MR. LAURINO [the Prosecutor]: Objection.
Q. [MR. CRISAFI]: —mimimum, maximum—
Defendant was also aware of his potential defenses and of available trial strategies. His numerous colloquies with the *516 court indicate that he had devised his own trial strategy. He also discussed his defense with Mr. Fullilove, Mr. Blasi, and Mr. Philwin, who served as his standby counsel during the trial. Defendant thus received competent legal advice before proceeding pro se. In fact, his basis for rejecting the services of the three attorneys was that he did not agree with their trial strategy.
An experienced trial attorney might have developed a different strategy. For his part, defendant demonstrated a passing familiarity with courtroom procedure. He argued several motions, including a motion to reduce bail and several discovery motions. Before trial, he specifically referred to a discovery proceeding as a “Rule 55” hearing and requested a list of prosecutor’s witnesses under “Rule 3:13.3(a).” During the trial, he asked for a “Rule 8” hearing on Terranova’s motives in turning State’s witness, and requested the court to instruct the jury on lesser-included offenses.
The court informed defendant that like a defense attorney, he would be bound by the Rules of criminal procedure. It also assured him of the availability of standby counsel.
See James, supra,
934
F.2d
at 472-73 (finding “most significante]” in determining valid waiver that defendant had standby counsel to answer any questions during trial);
Strozier
II,
supra,
926
F.
2d at 1105 (appointment of standby counsel and extent to which counsel aided defendant factors in determining validity of waiver). The record indicates that сounsel assisted defendant at both the pre-trial and trial stages. Mr. Philwin explained to defendant the purpose of a
Sands
hearing concerning the admission of his prior convictions and advised him about obtaining witness lists. Further, Mr. Philwin disctissed with defendant the contents of his opening statement. He also advised him on the inadvisability of conducting cross-examination and re-cross of every witness, advice that defendant ignored. Mr. Philwin also reviewed with defendant the admissibility of the prosecution’s physical evidence, such as photos of the victim, her sunglasses, defendant’s cigarettes, and his business card.
*517
Thus, Mr. Philwin substantially informed defendant about “whatever pitfalls he faces.”
See Moya-Gomez, supra,
We disagree with the Appellate Division’s unqualified assertion that defendant “never expressly stated that he desired to waive his right to counsel, but instead argued he was being deprived of that right.” 247
N.J.Super.
at 497,
The record leads us to conclude that defendant sought to manipulate the system by wavering between assigned counsel and self-representation and by asserting violations of his right to counsel while rejecting every attorney assigned tо his case. As we noted in
State v. McCombs,
81
N.J.
373, 378,
At some point, a trial court confronted with a wily defendant may consider the efficient administration of criminal justice and force a defendant to choose between appointed counsel and proceeding
pro se. United States v. Gallop,
Defendant differs from other defendants whose convictions have been overturned due to the absence of an adequate colloquy between the court and the defendants. In
Slattery, supra,
239
KJ.Super.
at 548,
The defendant here is more like the defendant in
Cole,
where the court upheld the waiver of counsel. 204
KJ.Super.
618,
-IV-
In overturning defendant’s conviction, the Appellate Division conditioned its remand for a new trial. The condition was that if after inquiry by the trial cоurt defendant chose to proceed pro se, “his election to do so must be understood as a *520 ratification of the previous trial.” 247 N.J.Super. at 499, 589 A. 2d 1033. In effect, the Appellate Division deprived defendant of the right to proceed pro se. We surmise that the court imposed that condition to prevent defendant from further manipulating the criminal justice system. Our reinstatement of defendant’s conviction renders unnecessary extensive analysis of the conditional deprivation of defendant’s right to appear pro se. We note, however, that the condition would violate defendant’s right to conduct his own defense. Faretta, supra, 422 U.S. at 817, 95 S.Ct. at 2532, 45 L.Ed.2d at 872. If a defendant knowingly waives his or her right to counsel, the court should not force counsel on him or her.
The judgment of the Appellate Division is reversed, and defendant’s conviction and sentence are reinstated.
Opposed — None.