Opinion
November 4, 1991
Appeal from the County Court, Nassau County (Baker, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention on appeal, the court did not err in concluding, after a hearing, that the defendant was competent to stand trial (see, CPL 730.10). 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 is not an incapacited person (People v. Orama, 150 A.D.2d 505; People v. Allen, 135 A.D.2d 823; People v. Breeden, 115 A.D.2d 484; People v. Santos, 43 A.D.2d 73). Further, in consideration of the conflicting evidence of competency, it cannot be said that the hearing court's determination was against the weight of the credible evidence (People v. Orama, supra, at 506; People v Breeden, supra; People v. Bolling, supra; People v. Carl, 58 A.D.2d 948, revd on other grounds 46 N.Y.2d 806).
The trial court did not err in denying the defense request for a jury charge on the lesser included offense of criminal trespass in the second degree. No reasonable view of the evidence supports a finding that the defendant committed the lesser included offense but not the greater (see, People v. Glover, 57 N.Y.2d 61, 63).
The defendant has failed to substantiate his claim that the prosecutor's use of his peremptory challenges to exclude black venirepersons from the jury violated his rights under the Sixth and Fourteenth Amendments (see, Batson v. Kentucky, 476 U.S. 79; Griffith v. Kentucky, 479 U.S. 314), since the voir dire proceedings have not been made available as part of the record on appeal (see, People v. Campanella, 176 A.D.2d 813).
The defendant's remaining contentions are either without merit or unpreserved for appellate review. Sullivan, J.P., Balletta, Ritter and Copertino, JJ., concur.