| People v Duffy |
| 2014 NY Slip Op 05464 [119 AD3d 1231] |
| July 24, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vLouis M. Duffy, Appellant. |
Donna C. Chin, Ithaca, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Chemung County(Buckley, J.), rendered January 12, 2012, upon a verdict convicting defendant of thecrimes of murder in the second degree and criminal possession of a weapon in the seconddegree (two counts).
At approximately 1:15 a.m., defendant went to a nightclub that catered to the gaycommunity and was managed by the victim. Defendant had agreed to performconstruction work for the victim later that day and to spend the night at the victim'shouse before working. Although defendant knew that the victim was gay and had reasonto expect that the victim would make sexual advances toward him, he informed hisfriends that he would kill the victim if the victim touched him. Shortly after arriving atthe nightclub, defendant and the victim walked across the street to the victim's residencewhere the two had consensual sex in a bedroom. At approximately 3:20 a.m., defendantshot the victim in the head and ran out of the house immediately afterward.
When police arrived, they found the victim lying on his stomach in bed, undercovers, bleeding from a gunshot wound to his left temple. The victim died shortlythereafter. Defendant was taken into custody and gave a written statement indicating thathe shot the victim because, when defendant tried to leave the victim's house, the victimtold him that their sexual relationship was going to continue and then grabbed him by thethroat. Defendant was thereafter charged in an indictment with murder in the seconddegree and two counts of criminal possession of a [*2]weapon in the second degree. At trial, defendant assertedthe affirmative defense of extreme emotional disturbance (see Penal Law§ 125.25 [1] [a]), presenting testimony that his interactions with the victimhad caused a "flashback" to his childhood sexual abuse at the hands of hisstep-grandfather. Nevertheless, the jury convicted defendant as charged, and CountyCourt sentenced him to an aggregate prison term of 25 years to life. Defendantappeals.
Initially, defendant argues that County Court erred in failing to order, sua sponte, acompetency hearing pursuant to CPL 730.30. "[A] defendant is presumed to becompetent, and . . . is not entitled, as a matter of right, to have the questionof his [or her] capacity to stand trial passed upon before the commencement of the trial,if the court is satisfied from the available information that there is no proper basis forquestioning the defendant's sanity" (People v Tortorici, 92 NY2d 757, 765[1999], cert denied 528 US 834 [1999] [internal quotation marks and citationsomitted]; see People v Morgan, 87 NY2d 878, 880 [1995]; People v Yu-Jen Chang, 92AD3d 1132, 1134 [2012]). A history of mental illness and drug abuse "does not initself call into question [a] defendant's competence to stand trial" (People vTortorici, 92 NY2d at 765); rather, "a [t]rial [j]udge determining whether acompetency hearing is necessary may also consider expert medical proof . . ., coupled with all other evidence and his [or her] own observations of the defendant"(id. at 766 [internal quotations marks and citation omitted]; see People vMorgan, 87 NY2d at 880-881; People v Poquee, 9 AD3d 781, 783 [2004], lvdenied 3 NY3d 741 [2004]). In reviewing whether a trial court erred in not orderinga competency hearing, the critical question is whether the court abused its discretion(see People v Tortorici, 92 NY2d at 766; People v Kulakov, 72 AD3d 1271, 1272 [2010], lvdenied 15 NY3d 775 [2010], lv dismissed 16 NY3d 896 [2011]).
Notwithstanding defendant's psychiatric diagnoses, drug use and emotional turmoilshortly after his arrest, defendant's own expert psychologist concluded that defendantwas sufficiently competent to participate in his own defense. In addition, County Courthad the opportunity to observe defendant during his numerous pretrial appearances andlengthy testimony. Defendant actively participated in his defense, repeatedly expressedhis understanding of the progression of the case, and was clear and rational during hislengthy testimony, explaining his history and emotional state at the time of the incidentand during the months and years leading up to the shooting. Under these circumstances, acompetency hearing was not required, especially where no hearing was requested, andCounty Court did not abuse its discretion (see People v Tortorici, 92 NY2d at767; People v Yu-Jen Chang, 92 AD3d at 1135; People v Kulakov, 72AD3d at 1272-1273; People v Poquee, 9 AD3d at 783).
Defendant next argues that the jury should have been given an intoxication chargebecause his alcohol, marihuana and cocaine use on the night of the shooting was relevantto negate an element of murder in the second degree, i.e., intent (see Penal Law§§ 15.25, 125.25 [1]). While defendant concedes that the issue is notpreserved for this Court's review, he argues that there was no strategic reason not torequest the charge and, thus, he was denied the effective assistance of counsel. In thealternative, he asserts that County Court should have given the charge sua sponte, andurges this Court to reverse in the interest of justice.
Generally, "[a] charge on intoxication should be given if there is sufficient evidenceof intoxication in the record for a reasonable person to entertain a doubt as to the elementof intent on that basis" (People v Rodriguez, 76 NY2d 918, 920 [1990] [internalquotation marks and citation omitted]; see People v Sirico, 17 NY3d 744, 745 [2011]; People v Lynch, 92 AD3d805, 805 [2012], lv denied 18 NY3d 995 [2012]). Nevertheless, "[a]lthougha relatively low threshold [*3]exists to demonstrateentitlement to an intoxication charge, bare assertions by a defendant concerning his [orher] intoxication, standing alone, are insufficient" (People v Sirico, 17 NY3d at745 [internal quotation marks and citation omitted]). Moreover, to succeed on a claim ofineffective assistance of counsel, "it is incumbent on defendant to demonstrate theabsence of strategic or other legitimate explanations for counsel's alleged shortcomings"(People v Benevento, 91 NY2d 708, 712 [1998] [internal quotation marks andcitation omitted]; see People vUnderdue, 89 AD3d 1132, 1134 [2011], lv denied 19 NY3d 969[2012]).
Assuming that testimony from defendant's friend—that defendant wasmoderately drunk when he left to meet the victim—was sufficient, along withdefendant's testimony, to warrant an intoxication charge, counsel was not necessarilyineffective for failing to request such a charge. Defendant bore the burden of proof onhis affirmative defense, requiring him to demonstrate that he was influenced by anextreme emotional disturbance at the time of the shooting and that there was a reasonableexplanation or excuse for that disturbance (see People v Roche, 98 NY2d 70,75-76 [2002]; People vWells, 101 AD3d 1250, 1252 [2012], lv denied 20 NY3d 1066 [2013]).Defendant and the victim were alone at the time of the shooting, so only defendant coulddescribe the circumstances and his mental state at that time. While a request for anintoxication instruction is not legally inconsistent with an extreme emotional disturbancedefense (see People v Knights, 109 AD2d 910, 911 [1985]), counsel could havestrategically determined that such a request would have undermined his affirmativedefense in this particular case. An intoxication instruction could reasonably be seen asinconsistent with defendant's assertion that his "head [was] clear enough to have coherentthoughts" in the moments before the victim's alleged attack, thereby undermining hiscredibility and, as a result, his extreme emotional disturbance defense. Regardless ofwhether an intoxication charge would have been proper, defendant has not demonstratedthe "absence of strategic or other legitimate explanations for counsel's allegedly deficientconduct" (People vHammond, 107 AD3d 1156, 1156 [2013] [internal quotation marks andcitations omitted]). Accordingly, defendant's claims that he received the ineffectiveassistance of counsel and that reversal is warranted in the interest of justice are lacking inmerit.
Defendant's remaining argument, that his sentence was harsh and excessive, has beenconsidered and rejected.
Stein, J.P., Garry, Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.