| People v McGrady |
| 2007 NY Slip Op 08647 [45 AD3d 1395] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Brandon M.McGrady, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Patrick H. Fierro of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered June1, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]). Contrary to defendant's contention,County Court properly refused to charge the affirmative defense of extreme emotionaldisturbance. "[Defendant's] behavior immediately before and after the killing was inconsistentwith the loss of control associated with the affirmative defense" (People v Murden, 190AD2d 822, 822 [1993], lv denied 81 NY2d 1017 [1993]; see People v Roche, 98NY2d 70, 76-77 [2002]; People vBarber, 2 AD3d 1290, 1292 [2003], lv denied 2 NY3d 761 [2004]; People vZamora, 309 AD2d 957 [2003], lv denied 1 NY3d 583 [2003]), nor was thereotherwise the requisite "sufficient credible evidence . . . presented for the jury tofind, by a preponderance of the evidence, that the elements of the affirmative defense [had] beenestablished" (People v White, 79 NY2d 900, 902-903 [1992]). We reject the contentionof defendant that he was deprived of his right to counsel when the police refused to allow him tocontact his father before interviewing him (see People v Fuschino, 59 NY2d 91, 100[1983]; People v Martin, 39 AD3d1213 [2007], lv denied 9 NY3d 878 [2007]), and we conclude that the record of thesuppression hearing supports the court's determination that defendant's statements to the policewere voluntarily made (see People v Mateo, 2 NY3d 383, 413-414 [2004], certdenied 542 US 946 [2004]; People v Coleman, 306 AD2d 941 [2003], lvdenied 1 NY3d 596 [2004]). Also contrary to the contention of defendant, the court properlyrefused to allow his five-year-old sister to testify on his behalf in view of the ambiguities in herstatements concerning her understanding of the difference between the truth and a lie. " 'Theresolution of the issue of witness competency is exclusively the responsibility of the trial court,subject to limited appellate review,' and should not be disturbed absent a clear abuse ofdiscretion" (People v Rising, 289 AD2d 1069, 1070 [2001], lv denied 97 NY2d732 [2002], quoting People v Parks, 41 NY2d 36, 46 [1976]). Here, there was no clearabuse of discretion. Finally, we conclude that defendant received meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]), and the sentence is not undulyharsh or severe. Present—Scudder, P.J., Hurlbutt, Smith, Fahey and Pine, JJ.