Opinion
June 5, 1995
Appeal from the Supreme Court, Queens County (Posner, J.).
Ordered that the judgment is affirmed.
The defendant contends that the court erred in failing to sua sponte conduct a hearing on the issue of the defendant's right to be present and to meaningfully assist in his own defense because the defendant was continually lapsing into unconsciousness during the trial. We disagree.
The only evidence of the defendant's incapacity was his counsel's statements that the defendant dozed off at two isolated times during the trial, one of which occurred at 4:45 P.M., shortly before the court adjourned for the day. However, upon limited questioning by the court, it appears that the defendant was in fact fit and that these were isolated incidents. There is no evidence of any request by counsel for any hearings and/or any other remedial measures. Furthermore, the record is devoid of any other indication that the defendant was unable to consult with his attorney or to effectively assist in his own defense. Under these circumstances, we cannot say that the Supreme Court erred in not sua sponte conducting a hearing on the physical competency of the defendant to meaningfully assist in his own defense (see, People v. Gensler, 72 N.Y.2d 239, cert denied 488 U.S. 932; People v. Garcia, 161 A.D.2d 796; People v Bisnett, 144 A.D.2d 567; People v. Stokes, 118 A.D.2d 670).
We have examined the defendant's remaining contention and find it to be without merit. Mangano, P.J., Joy, Hart and Florio, JJ., concur.