Opinion
KA 02-00779.
Decided June 14, 2004.
Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered March 6, 2002. The judgment convicted defendant, upon a jury verdict, of attempted rape in the first degree and unlawful imprisonment in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MARY GOOD OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: County Court did not abuse its discretion in failing, sua sponte, to order a competency hearing pursuant to CPL 730.30(2) ( see People v. Tortorici, 92 N.Y.2d 757, 766-767, cert denied 528 U.S. 834). Nor was defendant denied effective assistance of counsel as the result of defense counsel's failure to request a competency hearing ( see People v. Dunn, 261 A.D.2d 940, 940-941, lv denied 94 N.Y.2d 822). There is no requirement that defendant personally waive on the record his constitutional right to testify ( see People v. Fratta, 83 N.Y.2d 771, 772). Nevertheless, the court conducted an inquiry into whether defendant understood that he had the right to testify, and the record establishes that he knowingly, voluntarily and intelligently waived that right. We reject the further contention of defendant that he was deprived of his right to a fair trial by the allegedly improper comments of the prosecutor in his opening statement ( see People v. Speicher, 8 A.D.3d 1008 [June 14, 2004]; People v. Jackson, 4 A.D.3d 848, 849). Defendant failed to preserve for our review his contentions that the court erred in failing to adjudicate him a youthful offender ( see People v. Henderson, 300 A.D.2d 1119, lv denied 100 N.Y.2d 539) and in considering a prior criminal charge in sentencing him ( see generally People v. Leeson, 299 A.D.2d 919, 920, lv denied 99 N.Y.2d 560). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). Finally, we reject the contention of defendant that he was denied effective assistance of counsel at sentencing ( see People v. Carter, 158 A.D.2d 851, 852).