        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

939
KA 14-02102
PRESENT: WHALEN, P.J., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TOMMY L. MARTIN, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MICHAEL
HILLERY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered October 28, 2014. The judgment
convicted defendant, upon a jury verdict, of burglary in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of burglary in the second degree (Penal Law
§ 140.25 [2]). Defendant contends that Supreme Court failed to comply
with the mandatory requirements of CPL article 730, and thus denied
him due process of law and erred in finding him competent to stand
trial. At the outset, we note that defendant was not required to
preserve that contention for our review (see People v Armlin, 37 NY2d
167, 172; People v Winebrenner, 96 AD3d 1615, 1615-1616, lv denied 19
NY3d 1029; People v Meurer, 184 AD2d 1067, 1068, lv dismissed 80 NY2d
835, lv denied 80 NY2d 907). Nonetheless, we conclude that the record
contains no indication that the court failed to comply with the
requirements of CPL article 730 (see generally Winebrenner, 96 AD3d at
1616). Upon determining that defendant may be an incapacitated
person, the court properly issued an order of examination (see CPL
730.30 [1]). Contrary to defendant’s contention, the order of
examination was “issued to an appropriate director” (CPL 730.10 [2]),
inasmuch as it was issued to “the director of community mental health
services of the county where the criminal action [was] pending” (22
NYCRR 111.2 [a]).

     Defendant further contends that the experts who testified at a
competency hearing were not specialists in the field of developmental
disabilities and therefore were not qualified to offer an opinion
whether defendant was an incapacitated person. We reject that
                                 -2-                           939
                                                         KA 14-02102

contention. The director appointed two psychiatrists to examine
defendant (see CPL 730.20 [1]), and at a competency hearing held upon
defendant’s motion (see CPL 730.30 [2]), the parties stipulated to the
qualifications and expertise of the psychiatric examiners to obviate
the need for an extensive evaluation of their credentials (see
generally People v Vandemark, 225 AD2d 716, 716, lv denied 88 NY2d
943). Indeed, we note that one of those psychiatrists testified that
he worked specifically with persons who suffer from developmental
disabilities and routinely performed mental competency evaluations on
such persons.

     Contrary to defendant’s further contention, the statute does not
require the court to issue a written decision containing any
particular findings. After reviewing the evidence presented at the
hearing, the court, being “satisfied that the defendant is not an
incapacitated person,” properly ordered the criminal action to proceed
(CPL 730.30 [2]).

     Defendant failed to preserve for our review his challenge to the
legal sufficiency of the evidence that he unlawfully entered a
dwelling (see People v Gray, 86 NY2d 10, 19). In any event, we
conclude that the conviction is supported by legally sufficient
evidence (see generally People v Danielson, 9 NY3d 342, 349). A
dwelling is “a building which is usually occupied by a person lodging
therein at night” (Penal Law § 140.00 [3]; see People v McCray, 23
NY3d 621, 625-626, rearg denied 24 NY3d 947), and this building was
used for that purpose. Although the building that defendant
unlawfully entered contained a restaurant, at trial the People
introduced photographs of the interior of the building that depicted
bedrooms, a bathroom with shower, and a washer and dryer. Moreover,
the restaurant’s owner testified that he, his wife, and his son slept
in the building every night, including the night of the burglary.

      We conclude that defendant failed to preserve his further
contention that Penal Law § 140.25 (2) is unconstitutionally vague as
applied to him inasmuch as he did not move to dismiss the indictment
on that ground (see People v Iannelli, 69 NY2d 684, 685, cert denied
482 US 914; People v Knapp, 79 AD3d 1805, 1807, lv denied 17 NY3d
807).

     Finally, defendant’s sentence is not unduly harsh or severe.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
