Opinion
(1077) KA 98-05397.
September 28, 2001.
(Appeal from Judgment of Oneida County Court, Donalty, J. — Murder, 2nd Degree.)
PRESENT: GREEN, J.P., SCUDDER, KEHOE, GORSKI AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
The record supports the determination of County Court, following a hearing, that defendant was competent to proceed to trial. The court was entitled to reject the contrary opinions of the psychiatric examiners, where those opinions were based solely upon the assertions of defendant that he was unable to recall the events resulting in the murder charge ( see generally, People v. Goodell, 164 A.D.2d 321, 327, affd 79 N.Y.2d 869; People v. Francabandera, 33 N.Y.2d 429, 435-439). Defendant failed to preserve for our review his contentions that the evidence is legally insufficient to support the conviction ( see, People v. Gray, 86 N.Y.2d 10, 19) and that the court erred in failing to instruct the jury on intoxication ( see, People v. Jones, 272 A.D.2d 930, 932, lv denied 95 N.Y.2d 891) and the affirmative defense of extreme emotional disturbance ( see, People v. Hunter, 141 A.D.2d 847, lv denied 72 N.Y.2d 957). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). Nor was defendant denied effective assistance of counsel based upon counsel's failure to request jury instructions with respect to intoxication ( see, People v. Wallace, 259 A.D.2d 978, lv denied 93 N.Y.2d 981; People v. Barrentine, 112 A.D.2d 440, 441) and the affirmative defense of extreme emotional disturbance ( see, People v. Sanchez, 148 A.D.2d 760, lv denied 74 N.Y.2d 746, 818). The sentence is not unduly harsh or severe.