The People of the State of New York, Respondent, v. Walter Carlaftes, Appellant

The People of the State of New York, Respondent, v Walter Carlaftes, Appellant. [635 NYS2d 505] [MAJORITY] —Appeal by the defendant from a judgment of the County Court, Westchester County (Cowhey, J.), rendered September 11, 1992, convicting him of murder in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. There is no merit to the defendant’s contention that the County Court should have sua sponte ordered him to undergo a psychiatric examination pursuant to CPL 730.30 prior to the jury reaching a verdict. There is no indication in the record that the defendant, as a result of any mental disease or defect, was incapable of understanding the proceedings against him or unable to assist in his own defense (CPL 730.10 [1]). The County Court is not obligated to order an examination in every case where a defendant has a history of mental problems (see, People v Parker, 191 AD2d 717; People v Truss, 187 AD2d 742; People v Rogers, 163 AD2d 337). Furthermore, the court granted the defendant’s request to order psychiatric examinations and a hearing to determine the defendant’s fitness to proceed to sentencing. The court did not err in concluding, after a hearing, that the defendant had the capacity to proceed to sentencing. The ultimate determination of this issue lies with the court (People v Bolling, 114 AD2d 416, 417). Upon our review of the record, we are satisfied that the People sustained their burden of proving by a preponderance of the credible evidence that the defendant was not an incapacitated person (see, People v Santos, 43 AD2d 73). The defendant’s remaining contention is unpreserved for appellate review (see, CPL 470.05 [2]). O’Brien, J. P., Pizzuto, Santucci and Krausman, JJ., concur.