| People v Passaro |
| 2011 NY Slip Op 05899 [86 AD3d 717] |
| July 14, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AnthonyPassaro Jr., Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the Supreme Court (McDonough, J.), renderedNovember 23, 2009 in Ulster County, convicting defendant following a nonjury trial of thecrimes of murder in the second degree, criminal possession of a weapon in the third degree andendangering the welfare of a child (two counts).
Defendant, who has a history of physical and mental deficiencies, shot and killed his wifewith a semiautomatic rifle in the presence of their two children. He was indicted on one count ofmurder in the second degree, one count of criminal possession of a weapon in the third degreeand two counts of endangering the welfare of a child. Defendant then waived his right to a jurytrial and stipulated that he shot his wife, but claimed that he was not guilty by reason of mentaldisease or defect and asserted the affirmative defenses of extreme emotional disturbance andmental disorder. Supreme Court found him guilty as charged. Based upon a deterioration ofdefendant's physical condition between the time of trial and sentencing, his counsel then movedto have him civilly committed. The court denied the motion, determined that defendant wascompetent to proceed with sentencing and sentenced him to concurrent prison terms aggregating25 years to life. Defendant appeals, claiming that his counsel was ineffective and that SupremeCourt erred in determining that he was competent to proceed with sentencing.[*2]
Defendant has not demonstrated that, in light of " 'theevidence, the law, and the circumstances of [the] case, viewed in totality and as of the time of therepresentation,' " his counsel failed to provide him with meaningful representation (People vBenevento, 91 NY2d 708, 712 [1998], quoting People v Baldi, 54 NY2d 137, 147[1981]). Our review of the record reveals that defense counsel appropriately presented two expertwitnesses in support of the theory that, at the time of the shooting, defendant was in a psychoticstate that included delusions and hallucinations brought on by his physical and mental illnesses,lack of sleep and prescribed medications, thus rendering him incapable of understanding eitherthe consequences of his actions or that they were wrong. Counsel thoroughly and fullyquestioned the experts on direct, eliciting evidence in support of the defense theory, andappropriately conducted redirect examination to address issues brought out on cross-examinationby the prosecution and questioning by the court. Based on the totality of the circumstances,including counsel's cogent pursuit of a legitimate trial strategy, we conclude that defendantreceived meaningful representation (seePeople v Bailey, 80 AD3d 999, 1000 [2011]; People v Downs, 38 AD3d 1019, 1020 [2007], lv denied 8NY3d 984 [2007]; People v Horan, 290 AD2d 880, 884 [2002], lv denied 98NY2d 638 [2002]). The further contention that counsel failed to properly prepare the expertpsychiatrist for trial is a matter that is outside the record and cannot be determined on this appeal(see e.g. People v Moyer, 75 AD3d1004, 1006 [2010]).
Nor did Supreme Court err in its determination that defendant was competent to proceedwith sentencing. While the record reflects that defendant suffered from debilitating physicalconditions, including multiple sclerosis and diabetes, and has a long history of mental illness,that history alone does not call his competence into question (see People v Winters, 73 AD3d 1277, 1277 [2010], lvdenied 15 NY3d 811 [2010]). Rather, in determining a defendant's competence to proceed, acourt may take into account the findings of any competency examination as well as its ownobservations of defendant (see People vPhillips, 16 NY3d 510, 517 [2011]). The determination is a legal one, within the court'ssound discretion (see People vMendez, 1 NY3d 15, 20 [2003]; People v Campbell, 279 AD2d 797, 798[2001], lv denied 96 NY2d 826 [2001]). Here, Supreme Court based its determination ontwo recent competency reports concluding that defendant was competent to proceed, as well asits own observations of defendant in a hospital bed, and we find no reason to disturb itsconclusion (see People v Dewey, 18AD3d 894, 895 [2005]; People v Campbell, 279 AD2d at 798).
Finally, to the extent that defendant asks us to modify his sentence in the interest of justice,we decline to do so in view of the heinous and brutal nature of his crimes (see e.g. People v Seeber, 4 AD3d620, 622 [2004], affd 4 NY3d 780 [2005]; People v Hansen, 290 AD2d 47,57 [2002], affd 99 NY2d 339 [2003]).
Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.