Opinion
February 2, 1996
Appeal from the Erie County Court, LaMendola, J.
Present — Denman, P.J., Green, Wesley, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of second degree murder and fourth degree criminal possession of a weapon, defendant contends that he was mentally incompetent to stand trial; that he did not validly waive his right to be present during trial; that County Court erred in refusing to charge the defense of intoxication and the lesser included offense of second degree manslaughter; and that the sentence is harsh and excessive.
During the course of the criminal proceedings, the court twice invoked the procedures of CPL article 730. Defendant was examined shortly before trial and found to be competent. Under those circumstances, the court did not err in refusing to order further examination into defendant's mental competency to stand trial (see, People v. Gensler, 72 N.Y.2d 239, 244-245, cert denied 488 U.S. 932). The record establishes that, although defendant may have had unrealistic expectations concerning the outcome of his case, he nevertheless had a rational and factual understanding of the proceedings against him (see, People v. Arnold, 113 A.D.2d 101, 102). In addition, although defendant was dissatisfied with counsel and deliberately refused to cooperate with all three attorneys assigned to defend him, he did not have a genuine inability to consult with and assist counsel in his own defense with a degree of rational understanding (see, People v. Arnold, supra, at 102). On the basis of the psychiatric reports and testimony, as well as her own observations of defendant's behavior and demeanor, the Trial Judge had a sound basis for concluding that defendant was feigning mental illness in an attempt to impede or abort the trial (see, People v. Gensler, supra, at 245; People v. Cox, 196 A.D.2d 596, 597, lv denied 82 N.Y.2d 805).
Because defendant was fit to proceed, his waiver of the right to be present at trial was knowing and voluntary (see, People v Maggio, 140 A.D.2d 374; People v. Rios, 126 A.D.2d 860, 862). Defendant chose to absent himself from trial following a lengthy colloquy in which defendant was advised of the ramifications of his failure to attend and the advisability of his being present (see, People v. Parker, 57 N.Y.2d 136, 141).
On this record, defendant was not entitled to an intoxication charge (see, People v. Gaines, 83 N.Y.2d 925), nor was he entitled to submission of reckless manslaughter as a lesser included offense of intentional murder (see generally, People v. Glover, 57 N.Y.2d 61, 63). Defendant's sentence is neither unduly harsh nor severe.