Opinion
December 29, 1993
Appeal from the Supreme Court, Erie County, Rossetti, J.
Present — Green, J.P., Balio, Lawton, Fallon and Davis, JJ.
Judgment unanimously affirmed. Memorandum: We reject defendant's contention that Supreme Court erred in failing to order sua sponte a competency examination pursuant to CPL 730.30 (1) to determine defendant's fitness to proceed (see, People v Gensler, 72 N.Y.2d 239, cert denied 488 U.S. 932; People v Swan, 158 A.D.2d 158). The record reveals that, while at times defendant was belligerent and uncooperative, his behavior did not indicate that he may be an "incapacitated person" within the meaning of CPL 730.10 (1). In sum, defendant's conduct viewed in its entirety could not reasonably be interpreted as evincing defendant's incapacity to consult with his attorneys with a reasonable degree of rational understanding and with a rational as well as a factual understanding of the proceedings against him (see, People v Arnold, 113 A.D.2d 101, 102, after remittal 126 A.D.2d 955; People v Picozzi, 106 A.D.2d 413).
We have reviewed defendant's contention that the sentence imposed was unduly harsh and excessive, and find it to be without merit.