People v. James

Judgment unanimously reversed, on the law and facts, and new trial granted. Memorandum: Defendant was charged with one count of sodomy in the first degree (Penal Law, § 130.50, subd 1) and one count of sodomy in the second degree (Penal Law, § 130.45). The charges arose from a single incident involving a boy under 14 years of age. At the close of the People’s case, the trial court dismissed the count of sodomy in the second degree for lack of corroboration (Penal Law, § 130.16). The jury convicted defendant of sodomy in the first degree. H The case against defendant rested almost entirely upon the testimony of the complainant, who was 12 years of age at the time of trial and who testified without being sworn. There was no finding by the court that, because of mental disease or defect, complainant could not understand the nature of an oath (CPL 60.20, subd 2). It was thus error of constitutional dimension to permit the jury to hear the complainant’s unsworn testimony (Matter of Hecht v Monaghan, 307 NY 461). A new trial is warranted in the interest of justice. 1i Reversal is also required because the court did not adequately warn defendant of the dangers of self-representation. During trial, defendant proceeded pro se, with a lawyer available for assistance (see People v Mirenda, 57 NY2d 261). If, upon retrial, defendant again seeks to proceed pro se, the court must make a searching inquiry to ensure that defendant is aware of the dangers and disadvantages of representing himself, and to ensure that defendant’s waiver of his right to be represented by counsel is competently, intelligently and voluntarily made (People v McIntyre, 36 NY2d 10; People v Williams, 96 AD2d 740; People v Vivenzio, 96 AD2d 728). f We find no error in the court’s refusal to permit cross-examination of the complainant as to other sexual conduct (see CPL 60.42; People v Barlow, 88 AD2d 668). (Appeal from judgment of Niagara County Court, DiFlorio, J. — sodomy, first degree.) Present — Dillon, P. J., Hancock, Jr., Denman, Green and Moule, JJ.