Opinion
December 30, 1992
Appeal from the Cattaraugus County Court, Kelly, J.
Present — Boomer, J.P., Pine, Lawton, Boehm and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that his conviction of sexual abuse in the first degree and attempted rape in the first degree was against the weight of the evidence. Upon the exercise of our factual review power, we conclude that the trier of fact gave "the evidence the weight it should be accorded" (People v Bleakley, 69 N.Y.2d 490, 495). Defendant also contends that the court sua sponte should have inquired into his fitness to proceed to trial. Although at the time of trial defendant was taking Dilantin and phenobarbital to control his epilepsy, there is no basis in the record to conclude that defendant was incompetent to stand trial (see, People v Telehany, 186 A.D.2d 1068; People v Ross, 185 A.D.2d 661; People v Swan, 158 A.D.2d 158, lv denied 76 N.Y.2d 991).