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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Derrick DALEY, Appellant.

Decided: February 20, 2003

Before:  CARDONA, P.J., CREW III, SPAIN, CARPINELLO and ROSE, JJ. Paul R. Corradini, Public Defender, Elmira (Michael P. Nevins of counsel), for appellant. John R. Trice, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered April 7, 2000, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

Defendant was charged by indictment with promoting prison contraband in the first degree for possessing an 8 1/212-inch sharpened metal rod.   Defendant entered a plea of guilty in full satisfaction of the indictment and, consistent with the plea agreement, was sentenced as a second felony offender to a prison term of 1 1/212 to 3 years.

 On this appeal, defendant first contends that County Court erred when it twice refused defense counsel's requests for a CPL article 730 examination to assess defendant's competence to stand trial.   We disagree.   The ordering of a CPL article 730 competency examination lies within the sound discretion of the trial court (see People v. Tortorici, 92 N.Y.2d 757, 766, 769, 686 N.Y.S.2d 346, 709 N.E.2d 87, cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80;  People v. Morgan, 87 N.Y.2d 878, 879-880, 638 N.Y.S.2d 942, 662 N.E.2d 260;  People v. Horan, 290 A.D.2d 880, 882-883, 737 N.Y.S.2d 145, lv. denied 98 N.Y.2d 638, 744 N.Y.S.2d 767, 771 N.E.2d 840;  People v. Maldonado, 273 A.D.2d 537, 540, 711 N.Y.S.2d 191, lv. denied 95 N.Y.2d 867, 715 N.Y.S.2d 222, 738 N.E.2d 370) and is warranted only when the court has reasonable grounds to believe that the defendant does not have the capacity to stand trial (see People v. Morgan, supra at 880, 638 N.Y.S.2d 942, 662 N.E.2d 260;  People v. Armlin, 37 N.Y.2d 167, 171, 371 N.Y.S.2d 691, 332 N.E.2d 870;  People v. Hinkein, 295 A.D.2d 811, 811, 743 N.Y.S.2d 897, lv. denied 99 N.Y.2d 536, 752 N.Y.S.2d 597, 782 N.E.2d 575;  see also CPL 730.10 [1];  730.30[1] ).

In this case, defense counsel's initial request for a CPL article 730 examination was based on defendant's behavior at the arraignment-characterized by defense counsel as “bizarre” but by County Court as “defiant”-and defense counsel's second request for a competency examination was made at a court appearance where defendant's remarks and behavior were concededly lucid.   Defense counsel's statement at the time of the second request-that, following his arraignment, defendant had been housed in the psychiatric unit of the correctional facility for 10 days-did not, without more, compel a competency examination (see People v. Wheeler, 249 A.D.2d 774, 672 N.Y.S.2d 155).   Defendant's remarks and conduct at his court appearances were lucid and oriented, albeit argumentative and critical of the legal system, but not delusional nor suggestive of mental impairment requiring a competency hearing, and defendant's allocution evidenced a knowing, voluntary and intelligent guilty plea.   In our view, there was nothing in defendant's remarks or conduct to suggest that as a result of mental disease or defect he lacked the capacity to understand the proceedings against him or to assist in his own defense (see CPL 730.10[1];  People v. Smyth, 3 N.Y.2d 184, 187, 164 N.Y.S.2d 737, 143 N.E.2d 922;  see also People v. Carbonel, 296 A.D.2d 858, 745 N.Y.S.2d 367;  People v. Hinkein, supra;  People v. Medina, 249 A.D.2d 694, 671 N.Y.S.2d 550).   Accordingly, we discern no abuse of discretion in County Court's refusal to order a CPL article 730 examination.

 Defendant also contends that County Court should have held a CPL 400.21 hearing regarding the constitutionality of his prior convictions before sentencing him as a second felony offender.   At sentencing, however, defendant himself admitted in open court the predicate felony convictions (see CPL 400.21[4] ) and represented that, on his direct state court appeal of the predicates, he had unsuccessfully raised the same issue regarding the constitutionality of those convictions.   Accordingly, defendant was not entitled to a CPL 400.21 hearing to relitigate claims already rejected by the courts of this state (see People v. Ryan, 187 A.D.2d 765, 590 N.Y.S.2d 765, lv. denied 81 N.Y.2d 846, 595 N.Y.S.2d 746, 611 N.E.2d 785;  People v. Di Giacomo, 96 A.D.2d 1127, 1128, 467 N.Y.S.2d 726) and, thus, County Court did not err when it sentenced him as a second felony offender without such a hearing.

ORDERED that the judgment is affirmed.



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