People v Gianni

People v Gianni 2007 NY Slip Op 05082 [41 AD3d 1315] June 8, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

The People of the State of New York, Respondent, v Anthony M. Gianni, Appellant.

—[*1] Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of counsel), for defendant-appellant.

Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), for respondent.

Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered January 30, 2006. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted robbery in the third degree (Penal Law §§ 110.00, 160.05). We reject the contention of defendant that County Court failed to ensure that he was competent to stand trial (see generally People v Mills, 28 AD3d 1156 [2006], lv denied 7 NY3d 903 [2006]). The court sua sponte ordered psychiatric examinations of defendant based on its own observations at the time of his first appearance before the court. Defendant was rearrested while out on bail, and the local criminal court also ordered psychiatric examinations with respect to the new charges. County Court thereafter relied on the two psychiatric examinations and reports ordered by the local criminal court rather than obtaining additional examinations pursuant to its own order. Neither of those reports found that defendant had a mental disease or defect resulting in a lack of capacity to understand the charges or to assist in his defense. "[A] defendant is not entitled, as a matter of right, to have the question of his capacity to stand trial passed upon before the commencement of the trial [where, as here,] the court is satisfied from the available information that there is no proper basis for questioning the defendant's sanity" (People v Armlin, 37 NY2d 167, 171 [1975]; see also People v Smyth, 3 NY2d 184, 187 [1957], rearg denied 3 NY2d 942 [1957]). We note in any event that defense counsel failed to raise an issue with respect to defendant's fitness to proceed, and defense counsel was " ' "in the best position to assess defendant's capacity" ' " (People v Brown, 9 AD3d 884, 885 [2004], lv denied 3 NY3d 671 [2004]). Present—Hurlbutt, J.P., Gorski, Smith, Lunn and Pine, JJ.