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

558
KA 11-00804
PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

THOMAS BRYANT, DEFENDANT-APPELLANT.


CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered January 12, 2011. The judgment convicted
defendant, upon a jury verdict, of aggravated harassment of an
employee by an inmate.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of aggravated harassment of an employee by an inmate (Penal
Law § 240.32), defendant contends that County Court erred in failing
sua sponte to order a competency examination pursuant to CPL 730.30
(1). “It is well settled that the decision to order a competency
examination under CPL 730.30 (1) lies within the sound discretion of
the trial court” (People v Williams, 35 AD3d 1273, 1274, lv denied 8
NY3d 928; see People v Morgan, 87 NY2d 878, 879-880). “A defendant is
presumed competent . . . , and the court is under no obligation to
issue an order of examination . . . unless it has ‘reasonable ground .
. . to believe that the defendant was an incapacitated person’ ”
(Morgan, 87 NY2d at 880). Based on the record before us, we conclude
that the court did not abuse its discretion in failing sua sponte to
order a competency examination (see id. at 879-880).

     Defendant further contends that he was deprived of a fair trial
based on prosecutorial misconduct. He failed to preserve his
contention for our review with respect to the majority of the alleged
instances of prosecutorial misconduct (see CPL 470.05 [2]), and we
decline to exercise our power to review his contention concerning
those alleged instances as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). Insofar as defendant’s contention
is preserved for our review, we conclude that it lacks merit. We note
in particular that the prosecutor’s cross-examination of defendant did
not amount to prosecutorial misconduct; rather, “it appears that the
                                 -2-                           558
                                                         KA 11-00804

cross-examination was intended to place defendant in his proper
setting and put the weight of his testimony and his credibility to a
test,” thus enabling the jury to appraise the facts (People v Brent-
Pridgen, 48 AD3d 1054, 1055, lv denied 10 NY3d 860 [internal quotation
marks omitted]). We have considered defendant’s remaining contentions
and conclude that they lack merit.




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
