| People v Surdis |
| 2010 NY Slip Op 07276 [77 AD3d 1018] |
| October 14, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kristofer J.Surdis, Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.),rendered November 24, 2008, convicting defendant upon his plea of guilty of the crime of falselyreporting an incident in the first degree (two counts).
Defendant was charged in an indictment with five counts of falsely reporting an incident inthe first degree arising out of bomb threats made to several grocery stores. Following a mentalcompetency hearing conducted pursuant to CPL 730.30, County Court determined that defendantwas fit to proceed to trial. Thereafter, defendant pleaded guilty to the first two counts in theindictment and was sentenced, as agreed, to concurrent prison terms of seven years followed byfive years of postrelease supervision. Defendant appeals.
Defendant first argues that County Court erred in finding him competent to stand trial. In thatregard, the burden is on the prosecution to prove a defendant's competence by a preponderance ofthe evidence (see People v Mendez,1 NY3d 15, 19 [2003]). Here, defendant was examined by three certified psychologists, twoof whom concluded that he possessed the capacity to understand the proceedings against him andthat he was capable of assisting in his own defense (see CPL 730.10 [1]). To the extentthat the third psychologist reached a different [*2]conclusion,[FN1]we note only that a hearing court's competency ruling is accorded considerable deference,particularly given the existence of conflicting proof (see People v Johnson, 52 AD3d 1040, 1042 [2008], lvdenied 11 NY3d 833 [2008]; People v Campbell, 279 AD2d 797, 798 [2001], lvdenied 96 NY2d 826 [2001]). Defendant's related claim that one of the credited witnesseswas unqualified to provide expert testimony is similarly unavailing. Indeed, the admissibility ofexpert testimony lies within the sound discretion of the hearing court and, here, the witnesspossessed sufficient education, training and experience from which County Court could infer thather opinion would be reliable (see People v Geraci, 254 AD2d 522, 524[1998]).[FN2]
Finally, given defendant's extensive criminal history, including the fact that he was underparole supervision for a similar crime when he committed the instant criminal offenses, we findno abuse of discretion nor do extraordinary circumstances exist to warrant the reduction of theagreed-upon sentence in the interest of justice (see People v Bridge, 69 AD3d 969, 970 [2010]; People v Jackson, 67 AD3d 1067,1069 [2009], lv denied 14 NY3d 801 [2010]).
Mercure, J.P., Malone Jr., Garry and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: This expert opined thatdefendant understood the court proceedings and all of the roles of people in the courtroom. Shenonetheless concluded that defendant was unfit to proceed based on episodes ofdissociation—symptoms of which include memory loss—that render him unable toassist in his own defense. However, even an amnesia victim who cannot recall the eventsunderlying his or her offense may be competent to stand trial under CPL 730.10 (see People vFrancabandera, 33 NY2d 429 [1974]; Matter of Mollen v Mathews, 269 AD2d 42,49 [2000]; People v Goodell, 164 AD2d 321, 327 [1990], affd 79 NY2d 869[1992]).
Footnote 2: In addition to holding a Ph.D. inclinical psychology, the witness is the chief psychologist for the Ulster County Mental HealthDepartment (see generally People vTroy, 28 AD3d 689, 689-690 [2006], lv denied 7 NY3d 852 [2006]).