PEOPLE v. GIANNI (2007)

 Defendant appeals from a judgment convicting him upon his plea of guilty of attempted robbery in the third degree (Penal Law §§ 110.00, 160.05).   We reject the contention of defendant that County Court failed to ensure that he was competent to stand trial (see generally People v. Mills, 28 A.D.3d 1156, 813 N.Y.S.2d 592, lv. denied 7 N.Y.3d 903, 826 N.Y.S.2d 612, 860 N.E.2d 74). The court sua sponte ordered psychiatric examinations of defendant based on its own observations at the time of his first appearance before the court.   Defendant was rearrested while out on bail, and the local criminal court also ordered psychiatric examinations with respect to the new charges.   County Court thereafter relied on the two psychiatric examinations and reports ordered by the local criminal court rather than obtaining additional examinations pursuant to its own order.   Neither of those reports found that defendant had a mental disease or defect resulting in a lack of capacity to understand the charges or to assist in his defense.   “[A] defendant is not entitled, as a matter of right, to have the question of his capacity to stand trial passed upon before the commencement of the trial [where, as here,] the court is satisfied from the available information that there is no proper basis for questioning the defendant's sanity” (People v. Armlin, 37 N.Y.2d 167, 171, 371 N.Y.S.2d 691, 332 N.E.2d 870;  see also People v. Smyth, 3 N.Y.2d 184, 187, 164 N.Y.S.2d 737, 143 N.E.2d 922, rearg. denied 3 N.Y.2d 942).   We note in any event that defense counsel failed to raise an issue with respect to defendant's fitness to proceed, and defense counsel was “ ‘in the best position to assess defendant's capacity’ ” (People v. Brown, 9 A.D.3d 884, 885, 779 N.Y.S.2d 683, lv. denied 3 N.Y.3d 671, 784 N.Y.S.2d 9, 817 N.E.2d 827).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: