| People v Gordon |
| 2009 NY Slip Op 07657 [66 AD3d 920] |
| October 20, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v James Allen Gordon, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and JohnnetteTraill of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Demakos,J.), rendered January 28, 1999, convicting him of murder in the first degree (seven counts),attempted murder in the first degree (two counts), rape in the first degree, sodomy in the firstdegree, robbery in the first degree, and attempted sexual abuse in the first degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's waiver of his right to counsel was unequivocal, voluntary, and intelligentlymade (see People v Providence, 2NY3d 579, 580 [2004]; People v Arroyo, 98 NY2d 101, 103 [2002]; People vSmith, 92 NY2d 516, 520 [1998]; People v Anderson, 125 AD2d 580, 581 [1986]).The trial court undertook a sufficient searching inquiry of the defendant to be reasonably certainthat the dangers and disadvantages of giving up the fundamental right to counsel were impressedupon him (see People v Providence, 2 NY3d at 580; People v Arroyo, 98 NY2dat 103; People v Smith, 92 NY2d at 520; People v Anderson, 125 AD2d at 581).Further, the trial court apprised the defendant of the risks and dangers of self-representation(see People v Providence, 2 NY3d at 582-583). Thus, the trial court properly granted thedefendant's request, made prior to jury selection, to proceed pro se.
Contrary to the defendant's contentions, the trial court, which was entitled to rely, inter alia,on its own observations of, and interactions with, the defendant, providently exercised itsdiscretion in denying his application, made during the course of the trial, for a competencyexamination (see CPL 730.30 [1]; People v Morgan, 87 NY2d 878, 879-880[1995]; People v Russell, 74 NY2d 901, 902 [1989]; People v Rojas, 43 AD3d 413 [2007]; People v Jones, 25 AD3d 809,810 [2006]; People v Soto, 23AD3d 586 [2005]; People v Jordan,21 AD3d 1039 [2005]).
Lastly, the trial court properly declined to charge the jury with respect to the affirmativedefense of extreme emotional disturbance. The defendant testified that he was innocent of themurder and attempted murder charges and, thus, effectively vitiated the viability of theaffirmative defense of extreme emotional disturbance (see People v Adams, 72 AD2d156, 162 [1980], affd 53 NY2d 1 [1981]; cf. People v Harris, [*2]109 AD2d 351, 366 [1985]). In any event, even when viewed in thelight most favorable to the defendant, the evidence did not warrant an extreme emotionaldisturbance charge (see People v Leslie,41 AD3d 510, 511 [2007]; cf. People v Harris, 95 NY2d 316, 320 [2000]).Dillon, J.P., Eng, Belen and Hall, JJ., concur.