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People v. Bryant

117 A.D.3d 1591 Court N.Y. App. Div. Decision date 2014-05-09 English

Judges Present—Smith, J.P, Peradotto, Sconiers, Whalen and DeJoseph, JJ.

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p. 1591
The People of the State of New York, Respondent, v Thomas Bryant, Appellant.
[985 NYS2d 817]

Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered January 12, 2011. The judgment convicted defendant, upon a jury verdict, of aggravated harassment of an employee by an inmate.

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 [2006], lv denied 8 NY3d 928 [2007]; see People v Morgan, 87 NY2d 878 , 879-880 [1995]). “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 NY2d 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

p. 1592
[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 [2008], lv denied 10 NY3d 860 [2008] [internal quotation marks omitted]). We have considered defendant’s remaining contentions and conclude that they lack merit.

Present—Smith, J.P, Peradotto, Sconiers, Whalen and DeJoseph, JJ.

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