| People v Hernandez |
| 2007 NY Slip Op 09604 [46 AD3d 574] |
| December 4, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JorgeHernandez, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.),rendered June 29, 2005, convicting him of murder in the second degree and criminal possessionof a weapon in the third degree, upon a jury verdict, and sentencing him to an indeterminate termof imprisonment of 25 years to life on the conviction of murder in the second degree and anindeterminate term of 2
Ordered that the judgment is modified, on the law, by directing that the term ofimprisonment imposed on the conviction of criminal possession of a weapon in the third degreeshall run concurrently with the term of imprisonment imposed on the conviction of murder in thesecond degree; as so modified, the judgment is affirmed.
Under the totality of the circumstances, we find no reason to disturb the hearing court'sfindings that the defendant who, upon testing, was determined to be mildly retarded, knowingly,voluntarily, and intelligently waived his Miranda rights (see Miranda v Arizona,384 US 436 [1966]). "An effective waiver of Miranda rights may be made by an accusedof subnormal intelligence [*2]so long as it is established that heor she understood the immediate meaning of the warnings" (People v Williams, 62 NY2d285, 287 [1984]; see People vJones, 41 AD3d 736 [2007], lv denied 9 NY3d 877 [2007]; People vMarx, 305 AD2d 726, 728 [2003]). Since the evidence supported a finding that the defendantpossessed such comprehension, the waiver was properly given effect in the absence of any otherfactors suggesting a lack of voluntariness (see People v Williams, 62 NY2d at 285).
In addition, the County Court did not err in precluding expert testimony proffered by thedefendant concerning his performance on a battery of tests, known as the "Grisso instrument,"which is intended to assess a person's ability to knowingly and intelligently waiveMiranda rights. The tests have not been generally accepted by New York courts and,assuming that their general acceptance among forensic psychologists has been established forpurposes of Frye v United States (293 F 1013 [1923]), the defense failed to establish afoundation for admissibility by demonstrating the "specific reliability of the procedures followedto generate the evidence proffered" by the proposed expert (People v Wesley, 83 NY2d417, 429 [1994]; see Parker v Mobil OilCorp., 7 NY3d 434, 447 [2006]; People v Cole, 24 AD3d 1021, 1024 [2005]). Among other things,the validity of the test result was undermined by significant differences between the vocabularyused in the test and that used in the actual warnings given to the defendant, and the defendant'sexpert did not administer other tests which normally are considered necessary in order to render areliable opinion. The expert was permitted to testify concerning, inter alia, the defendant's mentalretardation and studies concerning the effect that condition has on a person's ability to make anintelligent waiver of Miranda rights.
The jury determination that the defendant failed to prove by a preponderance of the evidencethat he was "act[ing] under the influence of extreme emotional disturbance for which there was areasonable explanation or excuse" when he stabbed and killed the victim was based on legallysufficient evidence and was not against the weight of the evidence (Penal Law § 125.25 [1][a]; see People v Roche, 98 NY2d 70, 75 [2002]). "[W]here conflicting expert testimonyis presented, the question of whether or not the defendant suffered from a mental disease ordefect at the time of the commission of the crime is primarily for the trier of fact, who has theright to accept or reject the opinion of any expert" (People v Bernstein, 255 AD2d 388,388 [1998]; see People v Ayala, 221 AD2d 457, 458 [1995]). The jury reasonably couldhave concluded that the defendant's conduct, including secreting a kitchen knife in a bedroomhours prior to the stabbing, was inconsistent with the loss of control associated with extremeemotional disturbance (see People v Roche, 98 NY2d at 75-76; People v Ayala,221 AD2d at 457).
However, the County Court erred in ordering that the term of imprisonment imposed on theconviction for criminal possession of a weapon in the third degree must run consecutively withthe term of imprisonment imposed on the murder conviction. Since the possession of the knifewith intent to kill the victim was not separate and distinct from the killing of the victim, PenalLaw § 70.25 (2) prohibits consecutive sentences (see People v Hamilton, 4 NY3d 654, 659 [2005]; People v Jenkins, 34 AD3d 833,835 [2006]; People v Boyer, 31AD3d 1136, 1139 [2006]; People vIvory, 27 AD3d 664 [2006]; People v Rosario, 26 AD3d 271, 273 [2006]; cf. People vSalcedo, 92 NY2d 1019, 1021 [1998]). Spolzino, J.P., Dillon, Angiolillo and Dickerson, JJ.,concur.