PEOPLE v. MAILEY (1999)

Upon granting defendant's motion for a writ of error coram nobis and vacating our prior order and decision (People v. Mailey, 252 A.D.2d 995, 675 N.Y.S.2d 925), we now consider defendant's appeal de novo.

 We reject defendant's contention that Supreme Court erred in failing to hold a competency hearing.   The court was not “of the opinion that the defendant may be an incapacitated person” (CPL 730.30[1] ), and “the record fails to reveal the existence of any reasonable grounds to believe that defendant was incapable of understanding the charges against him or of making his defense” (People v. Claudio, 183 A.D.2d 945, 583 N.Y.S.2d 563;  see, People v. Sims, 217 A.D.2d 912, 629 N.Y.S.2d 923, lv. denied 87 N.Y.2d 851, 638 N.Y.S.2d 609, 661 N.E.2d 1391).   Town Court's request for an informal evaluation of defendant upon his arrest for slashing his girlfriend with a knife did not necessitate that either court comply with CPL article 730 (see, People v Sims, supra;  see also, People v. Johnson, 252 A.D.2d 967, 676 N.Y.S.2d 366, affd. 92 N.Y.2d 976, 683 N.Y.S.2d 754, 706 N.E.2d 742).

 Defendant was sentenced to consecutive terms of incarceration of 11/313 to 4 years for felony driving while intoxicated and one year for assault in the third degree.   Those sentences must be served concurrently (see, Penal Law § 70.35;  People v. Leabo, 196 A.D.2d 910, 911, 602 N.Y.S.2d 223, affd. 84 N.Y.2d 952, 620 N.Y.S.2d 820, 644 N.E.2d 1376).   We therefore modify the judgment accordingly.

Judgment unanimously modified on the law and as modified affirmed.

MEMORANDUM: