Opinion
April 15, 1994
Appeal from the Supreme Court, Erie County, Kasler, J.
Present — Green, J.P., Pine, Fallon, Callahan and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of criminal possession of a weapon in the third degree, defendant, who was "mildly retarded," contends that, although before trial he was found fit to proceed by two examiners pursuant to a CPL 730.30 order of examination, the court, sua sponte, should have ordered, during trial or sentencing, a hearing or a further psychiatric examination on the issue of his competency to proceed. He contends that the court's failure to act deprived him of due process. Although this issue is unpreserved, it may be raised for the first time on appeal (see, People v Armlin, 37 N.Y.2d 167). Defendant does not challenge the examiners' pretrial findings of competency and there is no suggestion in the record that defendant became incompetent during the proceedings. Thus, the court did not abuse its discretion in not directing an additional examination or a hearing (see, People v Savona, 176 A.D.2d 362, 362-363, lv denied 79 N.Y.2d 864).
Defendant was not denied a fair trial by the prosecutor's remarks on summation (see, People v Jabbar, 166 A.D.2d 904, 905, lv denied 78 N.Y.2d 955).
We have examined defendant's remaining contentions and find them to be without merit.