People v. Mailey

—Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Upon granting defendant’s motion for a writ of error coram nobis and vacating our prior order and decision (People v Mailey, 252 AD2d 995), we now consider defendant’s appeal de novo. We reject defendant’s contention that Supreme Court erred in failing to hold a competency hearing. The court was not “of the opinion that the defendant may be an incapacitated person” (CPL 730.30 [1]), and “the record fails to reveal the existence of any reasonable grounds to believe that defendant was incapable of understanding the charges against him or of making his defense” (People v Claudio, 183 AD2d 945; see, People v Sims, 217 AD2d 912, lv denied 87 NY2d 851). Town Court’s request for an informal evaluation of defendant upon his arrest for slashing his girlfriend with a knife did not necessitate that either court comply with CPL article 730 (see, People v Sims, supra; see also, People v Johnson, 252 AD2d 967, affd 92 NY2d 976). Defendant was sentenced to consecutive terms of incarceration of lVs to 4 years for felony driving while intoxicated and one year for assault in the third degree. Those sentences must be served concurrently (see, Penal Law § 70.35; People v Leabo, 196 AD2d 910, 911, affd 84 NY2d 952). We therefore modify the judgment accordingly. (Appeal from Judgment of Supreme Court, Erie County, Burns, J. — Felony Driving While Intoxicated.) Present — Denman, P. J., Lawton, Hayes, Pigott, Jr., and Scudder, JJ.