| People v McCray |
| 2012 NY Slip Op 04790 [96 AD3d 1160] |
| June 14, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Donald L.McCray, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Franklin County (Main Jr., J.),rendered June 7, 2010, upon a verdict convicting defendant of the crimes of assault on a policeofficer and criminal use of a firearm in the second degree.
In August 2008, defendant alerted the Sunmount Developmental Disabilities Office andFranklin County Emergency Services entities that he was armed and intended to commit suicide.Defendant was eventually located by members of various police agencies, including statetroopers and officers from the Department of Environmental Conservation, in a canoe on theRaquette River. After several hours of a standoff, during which defendant maintained aim athimself with a loaded shotgun, a state trooper seized an opportunity to grab the gun and, alongwith a Department of Environmental Conservation officer, struggled to take it away fromdefendant. As the three struggled, the gun discharged, causing massive injuries to the trooper'shand. As a result of this incident, defendant was charged by indictment with assault on a policeofficer and criminal use of a firearm in the second degree. Following a trial, defendant wasconvicted as charged and subsequently sentenced to an aggregate prison term of 15 years, withfive years of postrelease supervision. Defendant appeals.[*2]
Initially, defendant contends that, although the Peopleproved at trial that by attempting to take the gun away from him the trooper was engaged in alawful duty pursuant to Mental Hygiene Law § 9.41,[FN*]defendant intentionally attempted to prevent the trooper from performing that duty and thetrooper was seriously injured as a result (see Penal Law § 120.08), he wasnevertheless improperly convicted of assault on a police officer because applying that strictliability statute to arrests made pursuant to Mental Hygiene Law § 9.41 impermissiblycriminalizes a defendant's mental illness. We disagree. Although Penal Law § 120.08imposes strict liability with respect to the serious injury aspect of the crime, the People are stillrequired to prove the element of intent with respect to a defendant's action in preventing a policeofficer from performing a lawful duty (see People v Campbell, 72 NY2d 602, 604[1988]). Inasmuch as evidence of mental illness may "negate a specific intent necessary toestablish guilt" (People v Almonor, 93 NY2d 571, 580 [1999]; see People vSegal, 54 NY2d 58, 66 [1981]), it is possible for an individual charged with assault on apolice officer to present evidence at trial that he or she was mentally ill at the time of the incidentand, thus, did not possess the requisite intent to commit the crime. Accordingly, when applied todetentions made pursuant to Mental Hygiene Law § 9.41, Penal Law § 120.08 doesnot necessarily criminalize a defendant's mental illness, contrary to defendant's contention.
Next, we are not persuaded that defendant received ineffective assistance of counsel.Initially, the facts underlying many of defendant's contentions in this regard—including hisclaim that counsel failed to discuss the case with him, failed to investigate the charges and failedto investigate his mental health history and possible defenses—fall outside the record and,as such, would be more appropriately raised in a motion pursuant to CPL article 440 (see People v Terry, 85 AD3d1485, 1488 [2011], lv denied 17 NY3d 862 [2011]; People v Pendelton, 81 AD3d1037, 1038-1039 [2011], lv denied 16 NY3d 898 [2011]; People v Varmette, 70 AD3d1167, 1172 [2010], lv denied 14 NY3d 845 [2010]). Otherwise, "viewed in totalityand as of the time of the representation," we find that "the evidence, the law, and thecircumstances of [this] particular case . . . reveal that the attorney providedmeaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]).
Nor are we persuaded that the sentence imposed by County Court was harsh or excessive.Contrary to defendant's contention, the fact that he was offered a pretrial plea deal whereby hewould have received only five years in prison, as opposed to the aggregate sentence of 15 yearsthat was imposed after trial, does not indicate that he was penalized for exercising hisconstitutional right to a jury trial (seePeople v Souffrant, 93 AD3d 885, 887 [2012]). Considering defendant's lengthycriminal history, which dates back to 1987 and includes several prior firearm-related convictions,and the circumstances of this case, we do not find that County Court abused its discretion insentencing defendant to the maximum available sentence, nor do we find that extraordinarycircumstances exist that warrant a reduction of the sentence in the interest of justice (see People v Arbas, 85 AD3d1320 [2011], lv denied 17 NY3d 913 [2011]).
Defendant's remaining contentions were not preserved for our review.[*3]
Lahtinen, J.P., Spain, Kavanagh and McCarthy, JJ.,concur. Ordered that the judgment is affirmed.
Footnote *: As is relevant here, MentalHygiene Law § 9.41 permits a state trooper to "take into custody any person who appearsto be mentally ill and is conducting himself or herself in a manner which is likely to result inserious harm to the person or others."