Opinion
November 27, 1995
Appeal from the County Court, Westchester County (Cowhey, J.).
Ordered that the judgment is affirmed.
There is no merit to the defendant's contention that the County Court should have sua sponte ordered him to undergo a psychiatric examination pursuant to CPL 730.30 prior to the jury reaching a verdict. There is no indication in the record that the defendant, as a result of any mental disease or defect, was incapable of understanding the proceedings against him or unable to assist in his own defense (CPL 730.10). The County Court is not obligated to order an examination in every case where a defendant has a history of mental problems (see, People v Parker, 191 A.D.2d 717; People v Truss, 187 A.D.2d 742; People v Rogers, 163 A.D.2d 337).
Furthermore, the court granted the defendant's request to order psychiatric examinations and a hearing to determine the defendant's fitness to proceed to sentencing. The court did not err in concluding, after a hearing, that the defendant had the capacity to proceed to sentencing. The ultimate determination of this issue lies with the court (People v Bolling, 114 A.D.2d 416, 417). Upon our review of the record, we are satisfied that the People sustained their burden of proving by a preponderance of the credible evidence that the defendant was not an incapacitated person (see, People v Santos, 43 A.D.2d 73).
The defendant's remaining contention is unpreserved for appellate review (see, CPL 470.05). O'Brien, J.P., Pizzuto, Santucci and Krausman, JJ., concur.