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

249
KA 12-01877
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARRON S. MORRIS, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (HARMONY A. HEALY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered September 17, 2012. The judgment convicted
defendant, upon a jury verdict, of attempted murder in the second
degree, assault in the first degree, criminal use of a firearm in the
first degree, and criminal possession of a weapon 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, inter alia, attempted murder in the second
degree (Penal Law §§ 110.00, 125.25 [1]). We reject defendant’s
contention that County Court erred in failing, sua sponte, to conduct
a competency hearing pursuant to CPL 730.30 (2). The institution in
which defendant was confined determined that he was no longer an
incapacitated person (see CPL 730.60 [2]) and, thereafter, neither
defendant nor the District Attorney made a motion for a competency
hearing. Thus, the determination whether to order a hearing on its
own motion was within the court’s discretion (see CPL 730.30 [2];
People v Tortorici, 92 NY2d 757, 766, cert denied 528 US 834).
“Considering the evidence before [the c]ourt regarding defendant’s
competence, we conclude that the court did not abuse its discretion in
failing, on its own, to order a hearing” (Tortorici, 92 NY2d at 766;
see People v Carrion, 65 AD3d 693, 693-694, lv denied 13 NY3d 858;
People v Gaines, 26 AD3d 269, 270, lv denied 6 NY3d 847).

     Defendant failed to preserve for our review his further
contention that the court erred in allowing the People to present
evidence concerning prior uncharged crimes (see People v Reed, 78 AD3d
1481, 1482, lv denied 16 NY3d 745), and we decline to exercise our
power to review that contention as a matter of discretion in the
                                 -2-                           249
                                                         KA 12-01877

interest of justice (see CPL 470.15 [6] [a]). By making only a
general motion to dismiss the charges of attempted murder and assault
in the first degree after the People rested their case (see People v
Gray, 86 NY2d 10, 19), and by failing to renew that part of the motion
at the close of his case (see People v Hines, 97 NY2d 56, 61, rearg
denied 97 NY2d 678), defendant failed to preserve his contention that
his conviction of those charges is not supported by legally sufficient
evidence (see People v Bausano, 122 AD3d 1341, 1341-1342). Although
defendant made specific challenges to the legal sufficiency of the
evidence supporting the remaining charges after the People rested
their case, he failed to renew that part of his motion at the close of
his case and thus failed to preserve those challenges for our review
(see Hines, 97 NY2d at 61). Viewing the evidence in light of the
elements of the crimes as charged to the jury (see People v Danielson,
9 NY3d 342, 349), we reject defendant’s contention that the verdict is
against the weight of the evidence (see generally People v Bleakley,
69 NY2d 490, 495).

     We reject defendant’s contention that he was denied effective
assistance of counsel. Viewing the record as a whole, we conclude
that trial counsel provided meaningful representation (see People v
Baldi, 54 NY2d 137, 147). Defendant failed to preserve for our review
his further contention that he was punished for asserting his right to
a trial when the court imposed the maximum terms of incarceration (see
People v Stubinger, 87 AD3d 1316, 1317, lv denied 18 NY3d 862), and we
decline to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). We
conclude, moreover, that the sentence is not unduly harsh or severe.




Entered:   March 20, 2015                      Frances E. Cafarell
                                               Clerk of the Court
