ROSE
Randolph V. Kruman, Cortland, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Peter N. DeLucia of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY, ROSE and CLARK, JJ.
ROSE, J.
Appeal from a judgment of the County Court of Broome County (Cerio, Jr., J.), rendered May 5, 2011, convicting defendant following a nonjury trial of the crime of arson in the second degree.
Defendant was charged with arson in the second degree and found guilty following a nonjury trial at which he asserted the affirmative defense of mental disease or defect. County Court sentenced him to a prison term of nine years with five years of postrelease supervision. He now appeals.
County Court's determination to reject defendant's affirmative defense was not against the weight of the evidence.Specifically, defendant contends that his expert's opinion on the issue of his criminal responsibility should have been accepted because his expert spent more time testing him. We will not disturb the trier of facts' determination, however, as we can find no “serious flaw” in the reliance by the People's expert on his own three-hour interview of defendant and his review of the relevant records, including defendant's medical records and statements to the police ( People v. Demagall, 114 A.D.3d 189, 197, 978 N.Y.S.2d 416 [2014], lv. denied23 N.Y.3d 1035, 993 N.Y.S.2d 249, 17 N.E.3d 504 [2014]; see People v. Langenbach, 38 A.D.3d 1105, 1105, 833 N.Y.S.2d 265 [2007], lv. denied9 N.Y.3d 866, 840 N.Y.S.2d 896, 872 N.E.2d 1202 [2007]; People v. Bolarinwa, 258 A.D.2d 827, 831–832, 687 N.Y.S.2d 442 [1999], lv. denied93 N.Y.2d 1014, 697 N.Y.S.2d 573, 719 N.E.2d 934 [1999] ).
Although defendant's challenge to the legal sufficiency of the evidence was not properly preserved for our review ( see People v. Hawkins, 11 N.Y.3d 484, 493, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008]; People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ), we will consider all of the proof under our weight of the evidence review ( see People v. Simmons, 115 A.D.3d 1018, 1019, 981 N.Y.S.2d 475 [2014] ).
Nor can we agree that defendant was absent from material stages of the trial. Although a sidebar conference occurred outside his presence during trial and County Court held a telephone conference with the attorneys regarding scheduling, defendant has not established that either event implicated “a matter where his ‘presence could have [had] a substantial effect on [his] ability to defend against the charges' ” (People v. Tubbs, 115 A.D.3d 1009, 1011, 981 N.Y.S.2d 830 [2014], quoting People v. Velasquez, 1 N.Y.3d 44, 47, 769 N.Y.S.2d 156, 801 N.E.2d 376 [2003] [internal quotation marks and citation omitted]; seeCPL 260.20; People v. Harris, 99 N.Y.2d 202, 212, 753 N.Y.S.2d 437, 783 N.E.2d 502 [2002] ).
Defendant's contention that a competency examination should have been ordered during the trial is also without merit. A criminal defendant is presumed competent to stand trial and the determination of whether to order a competency examination rests within the trial court's sound discretion ( see People v. Dowling, 92 A.D.3d 1034, 1034, 937 N.Y.S.2d 729 [2012], lv. denied18 N.Y.3d 993, 945 N.Y.S.2d 648, 968 N.E.2d 1004 [2012]; People v. Daley, 302 A.D.2d 745, 746, 755 N.Y.S.2d 749 [2003] ). The record does not reflect whether the illness that afflicted defendant during the trial was mental or physical. Nevertheless, defendant assured County Court that he could think clearly and that his ability to discuss the case with his attorney was not affected by the medication that he was taking. Under the circumstances, we find no abuse of discretion in County Court's failure to order a CPL article 730 exam ( see People v. Dowling, 92 A.D.3d at 1034–1035, 937 N.Y.S.2d 729; People v. McFarren, 83 A.D.3d 1209, 1210, 921 N.Y.S.2d 391 [2011], lv. denied17 N.Y.3d 860, 932 N.Y.S.2d 26, 956 N.E.2d 807 [2011]; People v. Daley, 302 A.D.2d at 746, 755 N.Y.S.2d 749). For the same reasons, we reject defendant's contention that counsel's failure to request a competency examination rendered his assistance ineffective ( see People v. Lafoe, 75 A.D.3d 663, 664, 905 N.Y.S.2d 679 [2010], lv. denied15 N.Y.3d 953, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010] ).
Defendant's remaining claims of error by counsel, considered alone or together, do not rise to the level of ineffective assistance. Considering the totality of the circumstances, we have no difficulty in reaching the conclusion that counsel's representation was meaningful ( see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]; People v. Hammond, 107 A.D.3d 1156, 1156, 967 N.Y.S.2d 214 [2013]; People v. Vargas, 60 A.D.3d 1236, 1239–1240, 875 N.Y.S.2d 625 [2009], lv. denied13 N.Y.3d 750, 886 N.Y.S.2d 104, 914 N.E.2d 1022 [2009] ).
ORDERED that the judgment is affirmed. PETERS, P.J., LAHTINEN, GARRY and CLARK, JJ., concur.
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