Opinion
966 KA 13–00989
09-28-2018
The PEOPLE of the State of New York, Respondent, v. Dennis ESTRUCH, Defendant–Appellant.
SESSLER LAW PC, GENESEO (STEVEN D. SESSLER OF COUNSEL), FOR DEFENDANT–APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
SESSLER LAW PC, GENESEO (STEVEN D. SESSLER OF COUNSEL), FOR DEFENDANT–APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of reckless endangerment in the first degree ( Penal Law § 120.25 ). Contrary to defendant's contention, he was not denied his right to counsel by County Court's refusal to grant his request for new counsel inasmuch as defendant did not make a "seemingly serious request[ ]" for new counsel ( People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ).
We reject defendant's contention that he was denied his right to be present at a material stage of trial (see generally People v. Roman, 88 N.Y.2d 18, 26, 643 N.Y.S.2d 10, 665 N.E.2d 1050 [1996], rearg. denied 88 N.Y.2d 920, 646 N.Y.S.2d 988, 670 N.E.2d 229 [1996] ). The conversations between the court and defense counsel regarding defendant's competency did not require defendant's presence (see People v. Kimes, 37 A.D.3d 1, 30–31, 831 N.Y.S.2d 1 [1st Dept. 2006], lv denied 8 N.Y.3d 881, 832 N.Y.S.2d 494, 864 N.E.2d 624 [2007], reconsideration denied 9 N.Y.3d 846, 840 N.Y.S.2d 772, 872 N.E.2d 885 [2007] ; People v. Horan, 290 A.D.2d 880, 884, 737 N.Y.S.2d 145 [3d Dept. 2002], lv denied 98 N.Y.2d 638, 744 N.Y.S.2d 767, 771 N.E.2d 840 [2002] ). In any event, those conversations were repeated on the record when defendant was present, thus obviating any possible error (see People v. Purcelle, 107 A.D.3d 1050, 1051, 966 N.Y.S.2d 608 [3d Dept. 2013] ; People v. Forte, 243 A.D.2d 578, 578, 662 N.Y.S.2d 841 [2d Dept. 1997], lv denied 91 N.Y.2d 891, 669 N.Y.S.2d 6, 691 N.E.2d 1032 [1998] ).
Finally, the court did not err in failing to sua sponte order a competency examination (see CPL 730.30[1] ; People v. Bryant, 117 A.D.3d 1591, 1591, 985 N.Y.S.2d 817 [4th Dept. 2014], lv denied 23 N.Y.3d 1034, 993 N.Y.S.2d 248, 17 N.E.3d 503 [2014] ; see generally People v. Tortorici, 92 N.Y.2d 757, 765, 686 N.Y.S.2d 346, 709 N.E.2d 87 [1999], cert denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 [1999] ). The record supports the court's determination that "[d]efendant's remarks ... were suggestive of a[n] obstructionist frame of mind, not an incompetent one" ( People v. Johnson, 145 A.D.3d 1109, 1110, 41 N.Y.S.3d 437 [3d Dept. 2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ).