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