PEOPLE v. PEREZ (2007)

Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered March 24, 2005, convicting defendant, after a jury trial, of assault in the second degree (two counts), petit larceny and bail jumping in the third degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 12 years to life, unanimously affirmed.

The court properly declined to order a mid-trial psychiatric examination.   Nothing in the record casts doubt on defendant's mental competency (see Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 [1966];  People v. Tortorici, 92 N.Y.2d 757, 766, 686 N.Y.S.2d 346, 709 N.E.2d 87 [1999], cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 [1999];  People v. Morgan, 87 N.Y.2d 878, 881, 638 N.Y.S.2d 942, 662 N.E.2d 260 [1995] ).   There was no history of mental illness or other indication of lack of capacity. Instead, defense counsel informed the court that while throughout the case defendant had understood the charges and assisted in his defense, he had suddenly shown a lack of understanding of a legal concept, that is, the strict liability aspect of assault on a police officer (see Penal Law § 120.05 [3] ).   This was no indication that he lacked understanding of the proceedings as a result of a mental disease or defect (see People v. Stamps, 296 A.D.2d 325, 744 N.Y.S.2d 328 [2002], lv. denied 99 N.Y.2d 540, 752 N.Y.S.2d 601, 782 N.E.2d 579 [2002] ).

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There was ample evidence that each of the two police officers sustained physical injury (see People v. Chiddick, 8 N.Y.3d 445, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994] ).

Both of defendant's constitutional claims concerning his sentence are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find that defendant's sentence, which was the minimum permitted by law, was not unconstitutionally severe (see Rummel v. Estelle, 445 U.S. 263, 271, 100 S.Ct. 1133, 63 L.Ed.2d 382 [1980];  People v. Broadie, 37 N.Y.2d 100, 110-111, 371 N.Y.S.2d 471, 332 N.E.2d 338 [1975], cert. denied 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 [1975] ), and that his challenge to the procedure under which he was adjudicated a persistent felony offender is also without merit (see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 [1998] ).