| People v Schrock |
| 2010 NY Slip Op 03978 [73 AD3d 1429] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael L.Schrock, Appellant. |
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Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedOctober 9, 2007. The judgment convicted defendant, upon a jury verdict, of attempted murder inthe first degree (two counts), aggravated assault upon a police officer, criminal possession of aweapon in the second degree, robbery in the first degree (four counts), grand larceny in thefourth degree, menacing a police officer and escape in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby directing that the sentence imposed for robbery in the first degree under count seven of theindictment shall run concurrently with the sentence imposed for attempted murder in the firstdegree under count one of the indictment and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of, interalia, two counts of attempted murder in the first degree (Penal Law §§ 110.00,125.27 [1] [a] [i]; [b]), defendant contends that the verdict is against the weight of the evidenceinasmuch as the jury rejected the affirmative defense that he lacked criminal responsibility byreason of mental disease or defect (see § 40.15). Viewing the evidence in light ofthe elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we reject thatcontention (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). "Where, ashere, there was conflicting expert testimony on the issue of defendant's mental condition, thedetermination of the trier of fact to accept or reject the opinion of an expert, in whole or in part,is entitled to deference" (People v Amin, 294 AD2d 863, 863 [2002], lv denied98 NY2d 672 [2002]; see People vCoombs, 56 AD3d 1195, 1196 [2008], lv denied 12 NY3d 782 [2009]). Despitethe evidence that defendant was mentally ill at the time he committed the offenses, the jury wasentitled to credit the testimony of the forensic psychiatrist who examined defendant andconcluded that defendant appreciated the nature and consequences of his actions (see Peoplev Hill, 276 AD2d 716 [2000], lv denied 96 NY2d 735 [2001]). In addition, theknowledge of defendant that his conduct was wrong was demonstrated by his statement to thepolice that, after he assaulted and attempted to shoot the sheriff's deputy, he drove away in thepatrol vehicle because he realized he was in "trouble."[*2]
Defendant failed to preserve for our review thecontention in his main and pro se supplemental briefs that the prosecutor engaged in misconductby eliciting testimony with respect to defendant's past incidents of domestic violence(see CPL 470.05 [2]). In any event, that contention is without merit because suchevidence was relevant to the defense concerning defendant's mental condition, and County Courtgave an appropriate limiting instruction to the jury. Contrary to the further contention ofdefendant in his main and pro se supplemental briefs, we conclude that he was not deniedeffective assistance of counsel based on defense counsel's failure to object to the testimony withrespect to those prior bad acts. Defendant failed "to demonstrate the absence of strategic or otherlegitimate explanations" for defense counsel's failure to object to that testimony (People vRivera, 71 NY2d 705, 709 [1988]). We note that evidence that defendant engaged inassaultive behavior may be considered consistent with the behavior of an individual who suffersfrom a mental disease or defect and, indeed, defendant's expert witness testified that defendantsuffered from bipolar disorder, a component of which is aggressive and assaultive behavior.
Defendant contends in his main brief that the court erred in failing to comply with theprocedures set forth in CPL article 730. We reject that contention. During defendant'sarraignment on the felony complaint, the court ordered a psychiatric examination pursuant toCPL 730.30 (1). At the next appearance following indictment, the court indicated that it hadreceived and reviewed the examination reports of the evaluating psychiatrist, who founddefendant competent to stand trial. Defense counsel acknowledged receipt of those reports anddid not request a competency hearing. Defense counsel further stated that she had spoken todefendant and that she did not object to the finding that defendant was competent to proceed "atthis time." Although the prosecutor stated that he had not received those reports, we reject thecontention of defendant that he therefore was deprived of his right "to a full and impartialdetermination of his mental capacity" to stand trial (People v Armlin, 37 NY2d 167, 172[1975]; cf. People v Marasa, 270 AD2d 902 [2000]). The further contention ofdefendant in his main brief that he was improperly restrained at trial by a stun belt is unpreservedfor our review (see generally People vLowmack, 23 AD3d 1087 [2005], lv denied 6 NY3d 850 [2006]). In any event,that contention involves matters outside the record on appeal, and it therefore must be raised byway of a motion pursuant to CPL 440.10 (see People v King, 56 AD3d 1193 [2008], lv denied 11NY3d 926 [2009]; People vPeterson, 56 AD3d 1230 [2008]).
Defendant contends in his main brief that the sentences imposed on counts five through eightof the indictment, for robbery in the first degree, must run concurrently with the sentenceimposed on count one of the indictment, for attempted murder in the first degree. We agree withdefendant in part and conclude that the sentence imposed for robbery in the first degree undercount seven of the indictment must run concurrently with the sentence imposed for attemptedmurder in the first degree under count one of the indictment, and we therefore modify thejudgment accordingly. Pursuant to Penal Law § 70.25 (2), sentences imposed for "two ormore offenses committed through a single act or omission, or through an act or omission whichin itself constituted one of the offenses and also was a material element of the other," must runconcurrently (see People v Laureano, 87 NY2d 640, 643 [1996]). Here, defendant'sfiring of the gun at the sheriff's deputy constituted attempted murder in the first degree undercount one, and it is also an element of robbery in the first degree under count seven, whichalleged that defendant forcibly stole property by use or threatened use of a dangerous instrument(see People v Lemon, 38 AD3d1298, 1299 [2007], lv denied 9 NY3d 846 [2007], denied reconsideration 9NY3d 962 [2007]). The sentence as modified is not unduly harsh or severe.
Defendant contends in his pro se supplemental brief that the court failed to administer theoath of truthfulness to prospective jurors pursuant to CPL 270.15 (1) (a). By failing to "draw [thecourt's] attention to the purported error," however, defendant failed to preserve that [*3]contention for our review (People v Hampton, 64 AD3d 872, 877 [2009], lv denied 13NY3d 796 [2009]), and we decline to exercise our power to review defendant's contention as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We have reviewedthe remaining contention of defendant in his pro se supplemental brief and conclude that it iswithout merit. Present—Smith, J.P., Fahey, Carni, Lindley and Sconiers, JJ.