Opinion
March 16, 1987
Appeal from the Supreme Court, Kings County (Broomer, J.).
Ordered that the judgment is affirmed.,
The defendant's failure to register any protest to the Trial Judge's allegedly improper conduct during trial precludes our review of his claim under CPL 470.05 (2) (see, People v Charleston, 56 N.Y.2d 886; People v. Yut Wai Tom, 53 N.Y.2d 44). Moreover, the Trial Judge properly assumed an active and evenhanded role in the proceedings, fulfilling his responsibility to insure a fair and orderly trial (see, People v. Mendes, 3 N.Y.2d 120; People v. Gonzalez, 38 N.Y.2d 208; People v. Yut Wai Tom, supra; People v. De Jesus, 42 N.Y.2d 519).
Furthermore, the trial court properly denied defense counsel's application for admission of the police reports into evidence. Defense counsel failed to lay a proper foundation under CPLR 4518 by failing to show that the statements contained in the police reports had been made by one who was under a duty to impart them (see, Johnson v. Lutz, 253 N.Y. 124; Matter of Leon RR, 48 N.Y.2d 117). Moreover, defense counsel had not even elicited the identity of the person who made the statements in these reports, and therefore, the statements could not possibly have met the requirements of either the business records or prior inconsistent statement exceptions to the hearsay rule (see, Gagliano v Vaccaro, 97 A.D.2d 430; People v. Wise, 46 N.Y.2d 321).
Lastly, the trial court properly denied defense counsel's midtrial application for a psychiatric examination of the defendant in accordance with CPL 730.30 (1). There was no objective evidence in the record that such an examination was necessary (People v. Moye, 105 A.D.2d 853; People v. Salladeen, 50 A.D.2d 765, affd 42 N.Y.2d 914) and the defendant's decision not to take his counsel's advice did not, in and of itself, indicate his incompetence (People v. Sullivan, 48 A.D.2d 398, affd 39 N.Y.2d 903). Bracken, J.P., Weinstein, Spatt and Harwood, JJ., concur.