| People v Craft |
| 2013 NY Slip Op 01567 [104 AD3d 786] |
| March 13, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher Craft, Sr., Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Hayes, J.), rendered December 13, 2010, convicting him of burglary in the seconddegree, criminal use of a firearm in the second degree, criminal trespass in the firstdegree, criminal possession of a weapon in the third degree, unlawful imprisonment inthe first degree, and menacing in the second degree (three counts), upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing(Dolan, J.), of that branch of the defendant's omnibus motion which was to suppresscertain statements he made to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant's contention that the County Court erred in denying, after aHuntley hearing (see People v Huntley, 15 NY2d 72 [1965]), that branchof his omnibus motion which was to suppress his videotaped statement to detectiveswhich he made after his arrest is only partially preserved for appellate review (seeCPL 470.05 [2]) and, in any event, is without merit. His contention, in effect, that heshould have been examined by a psychiatric expert prior to the administration ofMiranda warnings (see Miranda v Arizona, 384 US 436 [1966]) isunavailing. The record demonstrates that he was lucid and coherent during the interviewand gave no indication that he would have been unable to comprehend "the immediateimport of [the Miranda] warnings" (People v Williams, 62 NY2d 285,289 [1984]). The record establishes that the defendant knowingly and intelligentlywaived his rights under Miranda v Arizona (384 US 436 [1966]) prior to makinghis statement (see People vCapela, 97 AD3d 760, 761 [2012]). Furthermore, there is no merit to hiscontention that his statement should have been suppressed because law enforcementofficials failed to electronically record his waiver (see People v Esquerdo, 71 AD3d 1424, 1426 [2010]).
In order for a defendant's psychiatric evidence to be admissible in support of aninsanity defense pursuant to Penal Law § 40.15, the defense must file and serve atimely, written notice of intent to present such evidence (see CPL 250.10 [1] [a];[2]; People v Diaz, 15NY3d 40, 45 [2010]; People v Smith, 1 NY3d 610, 612 [2004]; People vAlmonor, 93 NY2d 571, 578 [1999]). Such notice must be served and filed beforetrial and not more than 30 days after entry of a plea of not guilty to the indictment(see CPL 250.10 [2]; People v White, 75 AD3d 109, 123 [2010]). However, inthe interest of [*2]justice and for good cause shown, thecourt may, within its discretion, permit late service and filing of such notice "at any latertime prior to the close of the evidence" (CPL 250.10 [2]; see People v Diaz, 15NY3d at 45; People v Berk, 88 NY2d 257, 265-266 [1996], cert denied519 US 859 [1996]; People v White, 75 AD3d at 123). Here, the defendant failedto demonstrate that he had a viable insanity defense. Accordingly, the County Courtprovidently exercised its discretion in denying the defendant's application for leave toserve and file a late notice pursuant to CPL 250.10 of intent to present psychiatricevidence in support of the defense.
There is no merit to the defendant's contention that the County Court should havegranted his request to charge the jury that a mistaken belief on his part that he waslicensed or privileged to enter the school premises where the subject incident occurrednegated the element of "knowingly enter[ing] or remain[ing] unlawfully" (Penal Law§§ 140.25, 140.17), which is necessary for a conviction of burglary in thesecond degree and criminal trespass in the first degree. Penal Law § 140.00 (5)provides, in pertinent part, that "[a] person who enters or remains in or about a schoolbuilding without written permission from someone authorized to issue such permissionor without a legitimate reason which includes a relationship involving custody of orresponsibility for a pupil or student enrolled in the school or without legitimate businessor a purpose relating to the operation of the school does so without license andprivilege." In light of this statutory provision and the factual circumstances of this case,the defendant could not have reasonably believed that he was licensed or privileged toenter the school.
The defendant's contention that the County Court erred in denying his numerousrequests for new assigned counsel is not reviewable on direct appeal inasmuch as no suchrequest is apparent on the face of the record (see People v Espinal, 72 AD3d 701, 701 [2010]; People v Perry, 60 AD3d873, 873 [2009]).
Furthermore, the defendant's contention that he was deprived of a fair trial based onseveral instances of alleged prosecutorial misconduct is not reviewable on direct appealsince the record contains insufficient evidence for this Court to review the defendant'sclaims in this regard (see CPL 440.10 [2] [b]; cf. People v Johnson, 205AD2d 707, 708 [1994]). These claims may properly be reviewed only in the context of amotion to vacate the judgment of conviction pursuant to CPL 440.10, which is designedfor the purpose of developing matter dehors the trial record (see People v Franklin, 77AD3d 676 [2010]; People vJohnson, 64 AD3d 792 [2009]; People v Ransome, 207 AD2d 504[1994]).
The defendant also contends that he was deprived of the constitutional right to theeffective assistance of counsel due to, among other things, defense counsel's failure togive timely notice of an insanity defense. Although the failure to give such timely noticeappears on the face of the record, the defendant's ineffective assistance claim alsodepends, in part, upon matter outside the record, including a showing that defensecounsel did not have a "strategic or other legitimate explanation[ ]" for his allegedlydeficient conduct (People v Rivera, 71 NY2d 705, 709 [1988]). Since thedefendant's claim of ineffective assistance of counsel is based, in part, on matterappearing on the record and, in part, on matter outside the record, he has presented a "'mixed claim[ ]' of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011], quotingPeople v Evans, 16 NY3d571, 575 n 2 [2011], cert denied 565 US —, 132 S Ct 325 [2011]). Inthis case, it is not evident from the matter appearing on the record that the defendant wasdeprived of the effective assistance of counsel (cf. People v Crump, 53 NY2d824 [1981]; People v Brown, 45 NY2d 852 [1978]). Since the defendant's claimof ineffective assistance cannot be resolved without reference to matter outside therecord, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in itsentirety (see People vTaylor, 98 AD3d 593, 594 [2012]; People v Freeman, 93 AD3d 805 [2012]; People vMaxwell, 89 AD3d at 1109; People v Rohlehr, 87 AD3d 603, 604 [2011]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are without merit. Skelos, J.P., Dillon, Halland Miller, JJ., concur.