People v. Hodge

—Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant appeals from a judgment convicting him of four counts of burglary in the second degree (Penal Law § 140.25 [2]) and nine counts each of petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40). He contends that County Court erred in permitting him to proceed pro se, with standby counsel, because the trial court did not undertake a searching inquiry of defendant at the time of defendant’s request to proceed pro se (see, People v Sawyer, 57 NY2d 12 , 21, rearg dismissed 57 NY2d 776 , cert denied 459 US 1178 ). In view of defendant’s age, extensive criminal history, pro se motion practice even when represented by counsel, competent cross-examination of prosecution witnesses, proper objections to admission of evidence and appropriate use of standby counsel, we conclude that defendant knowingly and intelligently waived his right to counsel (see, People v Vivenzio, 62 NY2d 775 , 776; People v Reifsteck, 134 AD2d 876 , 876-877, Iv denied 70 NY2d 1010 ).

Defendant further contends and the People concede that the court erred in imposing a surcharge of 10% of the amount of restitution ordered rather than the 5% directed by Penal Law § 60.27 (8). The imposition of the additional 5% surcharge was not authorized (see, People v Gahrey M. O., 231 AD2d 909 ). We modify the judgment by vacating that part of the sentence ordering defendant to pay an additional 5% surcharge in addition to the 5% surcharge directed by Penal Law § 60.27 (8). (Appeal from Judgment of Ontario County Court, Harvey, J.— Burglary, 2nd Degree.) Present — Denman, P. J., Green, Pine, Hayes and Boehm, JJ.