Opinion
December 28, 1987
Appeal from the Supreme Court, Kings County (Vinik, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contentions, the court did not err in concluding, after a hearing, that the defendant was competent to stand trial (see, CPL 730.10). At the hearing, the People were required to establish the defendant's competency by a preponderance of the credible evidence (see, People v Breeden, 115 A.D.2d 484), a burden which we conclude, after review of the record, that the People have discharged. At bar, two of the examining psychiatrists testified that the defendant was capable of understanding the nature of the proceedings against him, could assist in his defense and was capable of establishing a working relationship with his attorney. Although the psychiatrists were not unanimous in their diagnoses, there was ample testimony in the record supporting the court's determination that the defendant was competent to stand trial. In any event, as this court has recently observed, "[w]here the hearing court is presented with conflicting evidence of competency, great deference [is] accorded its findings" (People v Gordon, 125 A.D.2d 587, 588; People v Breeden, supra). The hearing court gave appropriate consideration to the relevant legal factors and the fact that the defendant may have disagreed with his attorney's theory of the case does not establish that he lacked the capacity to stand trial (cf., People v Picozzi, 106 A.D.2d 413, 414, lv denied 64 N.Y.2d 1137; see also, People v Rios, 126 A.D.2d 860).
Finally, we reject the defendant's contentions that certain comments made by the prosecutor during summation deprived him of a fair trial. The record reveals that, with respect to these comments, defense counsel's objections were sustained and resulted in the court promptly administering curative instructions to the jury which, we find, dissipated any possible prejudice which may have resulted (see, People v Switzer, 115 A.D.2d 673, lv denied 67 N.Y.2d 890). Moreover, since counsel failed to request a mistrial or otherwise express dissatisfaction with the court's curative instructions, the issue is not preserved for appellate review (see, People v Medina, 53 N.Y.2d 951; People v Palemon, 131 A.D.2d 513, lv denied 70 N.Y.2d 715; People v Ayala, 120 A.D.2d 600, 601, lv denied 68 N.Y.2d 755). Mollen, P.J., Lawrence, Weinstein and Kooper, JJ., concur.