THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. THOMAS BRYANT DEFENDANT APPELLANT (2014)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon a jury verdict of aggravated harassment of an employee by an inmate (Penal Law § 240.32), defendant contends that County Court erred in failing sua sponte to order a competency examination pursuant to CPL 730.30(1).  “It is well settled that the decision to order a competency examination under CPL 730.30(1) lies within the sound discretion of the trial court” (People v. Williams, 35 AD3d 1273, 1274, lv denied 8 NY3d 928;  see People v. Morgan, 87 N.Y.2d 878, 879–880).  “A defendant is presumed competent ․, and the court is under no obligation to issue an order of examination ․ unless it has ‘reasonable ground ․ to believe that the defendant was an incapacitated person’ “ (Morgan, 87 N.Y.2d at 880).   Based on the record before us, we conclude that the court did not abuse its discretion in failing sua sponte to order a competency examination (see id. at 879–880).

Defendant further contends that he was deprived of a fair trial based on prosecutorial misconduct.   He failed to preserve his contention for our review with respect to the majority of the alleged instances of prosecutorial misconduct (see CPL 470.05[2] ), and we decline to exercise our power to review his contention concerning those alleged instances as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Insofar as defendant's contention is preserved for our review, we conclude that it lacks merit.   We note in particular that the prosecutor's cross-examination of defendant did not amount to prosecutorial misconduct;  rather, “it appears that the cross-examination was intended to place defendant in his proper setting and put the weight of his testimony and his credibility to a test,” thus enabling the jury to appraise the facts (People v. Brent–Pridgen, 48 AD3d 1054, 1055, lv denied 10 NY3d 860 [internal quotation marks omitted] ).   We have considered defendant's remaining contentions and conclude that they lack merit.

Frances E. Cafarell

Clerk of the Court