PEOPLE v. ESTRUCH (2018)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of reckless endangerment in the first degree (Penal Law § 120.25).  Contrary to defendant's contention, he was not denied his right to counsel by County Court's refusal to grant his request for new counsel inasmuch as defendant did not make a “seemingly serious request[ ]” for new counsel (People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ).

We reject defendant's contention that he was denied his right to be present at a material stage of trial (see generally People v. Roman, 88 N.Y.2d 18, 26, 643 N.Y.S.2d 10, 665 N.E.2d 1050 [1996], rearg. denied 88 N.Y.2d 920, 646 N.Y.S.2d 988, 670 N.E.2d 229 [1996] ).  The conversations between the court and defense counsel regarding defendant's competency did not require defendant's presence (see People v. Kimes, 37 A.D.3d 1, 30–31, 831 N.Y.S.2d 1 [1st Dept. 2006], lv denied 8 N.Y.3d 881, 832 N.Y.S.2d 494, 864 N.E.2d 624 [2007], reconsideration denied 9 N.Y.3d 846, 840 N.Y.S.2d 772, 872 N.E.2d 885 [2007];  People v. Horan, 290 A.D.2d 880, 884, 737 N.Y.S.2d 145 [3d Dept. 2002], lv denied 98 N.Y.2d 638, 744 N.Y.S.2d 767, 771 N.E.2d 840 [2002] ).  In any event, those conversations were repeated on the record when defendant was present, thus obviating any possible error (see People v. Purcelle, 107 A.D.3d 1050, 1051, 966 N.Y.S.2d 608 [3d Dept. 2013];  People v. Forte, 243 A.D.2d 578, 578, 662 N.Y.S.2d 841 [2d Dept. 1997], lv denied 91 N.Y.2d 891, 669 N.Y.S.2d 6, 691 N.E.2d 1032 [1998] ).

Finally, the court did not err in failing to sua sponte order a competency examination (see CPL 730.30[1];  People v. Bryant, 117 A.D.3d 1591, 1591, 985 N.Y.S.2d 817 [4th Dept. 2014], lv denied 23 N.Y.3d 1034, 993 N.Y.S.2d 248, 17 N.E.3d 503 [2014];  see generally People v. Tortorici, 92 N.Y.2d 757, 765, 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] ).  The record supports the court's determination that “[d]efendant's remarks ․ were suggestive of a[n] obstructionist frame of mind, not an incompetent one” (People v. Johnson, 145 A.D.3d 1109, 1110, 41 N.Y.S.3d 437 [3d Dept. 2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ).