People v. Rosebrough

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 NY2d 239, cert denied 488 US 932; People v Swan, 158 AD2d 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 AD2d 101, 102, after remittal 126 AD2d 955; People v Picozzi, 106 AD2d 413). We have reviewed defendant’s contention that the sentence imposed was unduly harsh and excessive, and find it to be without merit. (Appeal from Judgment of Supreme Court, Erie County, Rossetti, J.—Burglary, 2nd Degree.) Present—Green, J. P., Balio, Lawton, Fallon and Davis, JJ.