People v. Bey

Judgment unanimously affirmed. Memorandum: We agree with the determination of the court following the reconstruction hearing (see, People v Bey, 144 AD2d 972, 974) that the People sustained their burden of demonstrating defendant’s competency at the time of trial (see, People v Wright, 124 AD2d 1015, lv denied 69 NY2d 751). The People produced the two psychiatrists whom the court had appointed to examine defendant prior to trial pursuant to CPL article 730. Citing the factors upon which they based their findings (compare, People v Weech, 116 AD2d 975, 976-977), both experts testified about their examination of defendant and their conclusion that defendant understood the charges against him and the nature of the court proceedings, that he was able to assist in his own *869defense, and that he appeared to be feigning the symptoms of insanity or incompetence. The People also presented the testimony of the Assistant District Attorney who had prosecuted defendant. He testified that he recalled nothing unusual about defendant’s behavior, appearance or attire during trial, and that defendant did not interrupt the proceedings or act in any unusual manner until the time of his second felony offender hearing. The prosecutor attributed defendant’s outbursts at that stage to his anger and frustration at the prospect of being sentenced. Since the record bears out the prosecutor’s assessment, we conclude that his testimony, in combination with the expert opinion evidence, suffices to establish defendant’s competency at the time of trial.

Addressing defendant’s remaining contentions on his consolidated appeals, we conclude that the separate photo array procedures involving the victim and a witness were not tainted by the fact that they had cooperated in creating a composite sketch of defendant; that the court’s charge was in all respects proper; and that defendant’s sentence is not unduly severe. (Resubmission of appeal from judgment of Monroe County Court, Celli, J.—rape, first degree.) Present— Denman, J. P., Green, Balio, Lawton and Davis, JJ.