| People v Kot |
| 2015 NY Slip Op 01828 [126 AD3d 1022] |
| March 5, 2015 |
| Appellate Division, Third Department |
[*1](March 5, 2015)
| The People of the State of New York, Respondent, vBlazej J. Kot, Appellant. |
Margaret McCarthy, Ithaca, for appellant.
Gwen Wilkinson, District Attorney, Ithaca (Andrew J. Bonavia of counsel), forrespondent.
McCarthy, J.P. Appeals (1) from a judgment of the County Court of TompkinsCounty (Rowley, J.), rendered June 16, 2010, upon a verdict convicting defendant of thecrimes of murder in the second degree, arson in the third degree and tampering withphysical evidence, (2) by permission, from an order of said court, entered August 21,2013, which partially denied defendant's motion pursuant to, among other things, CPL440.10 to vacate the judgment of conviction, without a hearing, and (3) from a judgmentof said court, rendered October 18, 2013, which resentenced defendant.
Defendant was indicted in June 2009 on charges of murder in the second degree,arson in the third degree and tampering with physical evidence after he murdered hiswife while they were out jogging by cutting her throat with a box cutter and thenreturned to their apartment and attempted to set it on fire. Only weeks before, defendantand the victim had returned from a honeymoon trip to Costa Rica. During the eveningfollowing the murder, the police found defendant alone in his car in a parking lot of astate park. When the officer approached the car, he observed dried blood on defendant'ssleeve and asked him to lower his window. Defendant instead put the car into gear andled police on a high-speed chase that ended when he drove off the road. When the policegot to the car, defendant was unconscious and wearing only a bathrobe; his neck waslacerated and he had a bloodied knife in his hand.
[*2] At the jury trial in April 2010, County Court instructedthe jury to consider the affirmative defense of extreme emotional disturbance (seePenal Law § 125.25 [1] [a]). Ultimately, the jury convicted defendant on allthree counts and the court sentenced him to a prison term of 25 years to life on thesecond-degree murder conviction and to lesser, concurrent terms on the arson andtampering with physical evidence convictions. Defendant thereafter moved pursuant toCPL 440.10 and 440.20 to vacate the judgment of conviction and the sentence. Withoutholding a hearing, County Court denied that part of the motion to vacate the judgment ofconviction pursuant to CPL 440.10. Finding that defendant received an unauthorizedsentence on the arson and tampering convictions, however, the court determined that heshould be resentenced on said convictions, which it did in a separate judgment.Defendant now appeals from the judgment of conviction, the judgment resentencing himand, with the permission of this Court, from the order partially denying his CPL article440 motion.
Initially, we reject defendant's claim that County Court erred by failing to order, suasponte, a competency hearing pursuant to CPL 730.30. Generally, a defendant ispresumed to be competent to stand trial (see People v Tortorici, 92 NY2d 757,765 [1999], cert denied 528 US 834 [1999]). If, during a criminal action, thecourt "has a reasonable ground for believing that a defendant is in such a state of [mentaldisease or defect] that he [or she] is incapable of understanding the charge, indictment orproceedings or of making his [or her] defense, it is the duty of the court to direct him [orher] to be examined in these respects" (id. [internal quotation marks and citationsomitted]; see CPL 730.10 [1]; People v Yu-Jen Chang, 92 AD3d 1132, 1134 [2012]). Onthis appeal, we consider whether the court abused its discretion (see People vTortorici, 92 NY2d at 766; People v Duffy, 119 AD3d 1231, 1233 [2014], lvdenied 24 NY3d 1043 [2014]).
Even if, as defendant now claims, the full extent of his illness was not knownbecause he did not receive adequate medical care until after the trial, a history of mentalillness and/or suicide attempts does not compel a finding of incompetency or necessarilyrequire a competency hearing (see People v Duffy, 119 AD3d at 1233; People v Tafari, 90 AD3d1341, 1342-1343 [2011], lv denied 19 NY3d 977 [2012]; People v Andrews, 78 AD3d1229, 1232 [2010], lv denied 16 NY3d 827 [2011] [although the defendantheld delusional ideas he was competent to stand trial]; People v Clickner, 128AD2d 917, 918 [1987], lv denied 70 NY2d 644 [1987] [the trial court did not errin declining to order competency evaluation when the defendant attempted suicide whileawaiting sentencing]). Although defendant claims that County Court did not makesufficient inquiry with regard to his competency, it is not disputed that the court was ableto observe defendant's behavior and demeanor in the courtroom throughout the trial, aswell as in video excerpts from his discussions with Rory Houghtalen, the forensicpsychiatrist retained to examine him (see People v Bolarinwa, 258 AD2d 827,831 [1999], lv denied 93 NY2d 1014 [1999]). During the trial, Houghtalen didnot opine that defendant was incompetent, and defense counsel at no point requested acompetency hearing. Notably, during a sidebar, defendant himself requested to beexcused from the courtroom as the People were about to introduce photographs of thevictim's body, and he made statements at sentencing expressing regret over killing hiswife. Based on the available information, we cannot say that County Court abused itsdiscretion in not, sua sponte, ordering a competency hearing (see People v Duffy,119 AD3d at 1233; People v Yu-Jen Chang, 92 AD3d at 1135). For the samereasons, we find without merit defendant's contention that he was deprived of theeffective assistance of counsel due to counsel's failure to request a competency hearing orto present an insanity defense (see People v Hennessey, 111 AD3d 1166, 1169[2013]).
County Court did not err in denying, without a hearing, defendant's CPL 440.10motion to vacate the judgment of conviction based on Houghtalen's revised evaluation ofwhat he [*3]believes defendant's mental capacity was atthe time of the trial. Defendant argues that he was entitled to a hearing on his CPL440.10 motion as to whether he was capable of understanding and participating in histrial (see CPL 440.10 [1] [e]) and as to whether purportedly newly discoveredevidence concerning his mental health would have, if received at trial, resulted in averdict more favorable to him (see CPL 440.10 [1] [g]). On a motion to vacate, ahearing is required if the submissions "show that the nonrecord facts sought to beestablished are material and would entitle [the defendant] to relief" (People vSatterfield, 66 NY2d 796, 799 [1985]; see CPL 440.30 [5]; People vHennessey, 111 AD3d at 1168-1169).
The record here contains numerous facts undercutting any assertion that defendant, atthe time of his trial and the pretrial proceedings, was suffering from any mental conditionthat left him "incapable of understanding or participating in such proceedings" (CPL440.10 [1] [e]). Up to and throughout the trial, defendant continuously exhibited anawareness of the nuances of the criminal justice process, including, as is pertinent to thisdiscussion, the crucial role that Houghtalen, as his forensic psychiatric expert, would playin his defense. Defendant's forthright disclosures to Houghtalen concerning thedysfunction he observed in his family during his youth, and the mental health symptomshe reportedly experienced in the days and months leading up to his crime, support theconclusion that any psychiatric conditions from which he might have been suffering overthe course of the instant criminal action did not prevent him from recognizing thatproviding Houghtalen with details of his mental health history would bolster his defense,nor from actually supplying such information to Houghtalen.
County Court was aware from the outset of its oversight of this case that defendant'smental health would be the focus of the litigation (compare People v Hennessey,111 AD3d at 1167-1168). The court had ample opportunity to observe defendant'sdemeanor in court and in his videotaped interviews with Houghtalen, and the courtreceived "extensive written submissions" from Houghtalen and defendant in support ofdefendant's postconviction claim pursuant to CPL 440.10 (1) (e) (People v Sheppard, 107 AD3d1237, 1239 [2013], lv denied 22 NY3d 1203 [2014]). Therefore, CountyCourt did not err in rejecting without a hearing (see CPL 440.30 [1] [a]) so muchof defendant's CPL 440.10 motion as suggested that, at the time of these proceedings,defendant's judgment was so clouded by mental disease or defect that he was unable orunwilling to play any part in defending against the charges (compare People vHennessey, 111 AD3d at 1167-1169; People v Fixter, 79 AD2d 861, 861[1980]). Even accepting as true Houghtalen's determination that defendant, at the time ofhis trial, believed his attorney and Houghtalen to be part of a conspiracy against him,there is no proof that such delusion rendered defendant unable to appreciate the nature ofthese proceedings, or caused him to refuse to participate in them.
As for defendant's claim under CPL 440.10 (1) (g), even if it can be said thatHoughtalen's recent reevaluation of defendant's mental health history amounts to newlydiscovered evidence, it cannot be said that such evidence "could not have been produced. . . at the trial . . . with due diligence" (CPL 440.10 [1] [g]).Defendant informed Houghtalen during a midtrial interview that he believed thatHoughtalen and his trial counsel were part of a conspiracy against him. No reasonableexplanation has been provided for the failure to reassess defendant's mentalhealth—or the defense's trial strategy—in light of this disclosure. This is nota situation in which, for example, the People ignored their obligation to thoroughlyinvestigate the crime allegedly committed by a defendant whose trial attorney lacked theresources necessary to mount a viable defense (compare People v Hildenbrandt,125 AD2d 819, 821-822 [1986], lv denied 69 NY2d 881 [1987]). Rather, thefindings of Houghtalen's reevaluation are "not 'newly discovered' within the meaning ofCPL 440.10 (1) (g) since, with the exercise of due diligence, [they] could have beendiscovered before [the conclusion of the] trial" (People v Chaney, 298 AD2d617, 620[*4][2002], lv dismissed and denied 100NY2d 537 [2003]).
Turning to the question of whether the findings of Houghtalen's reevaluation were,as a substantive matter, "of such character as to create a probability that[,] had suchevidence been received at the trial[,] the verdict would have been more favorable to [ ]defendant" (CPL 440.10 [1] [g]), County Court did not abuse its discretion in concludingthat no hearing was necessary to assess the probative value of Houghtalen's recentfindings and their likely impact on the verdict (compare People v Page, 115 AD3d 1067, 1069 [2014],lv dismissed 23 NY3d 966 [2014]). Because defendant's CPL 440.10 motion wassupported by affidavits from defendant, his trial counsel and Houghtalen, County Courtwas not faced with a situation in which it had been presented with potentially exculpatorystatements by individuals whose credibility it had not had the opportunity to assess inperson during the trial (compare id. at 1067-1069; People v Hildenbrandt,125 AD2d at 821-822). In addition, County Court observed the jury in this case as itheard Houghtalen testify in support of the defense's theory of extreme emotionaldisturbance pursuant to Penal Law § 125.25 (1) (a), and heard the People'sexpert psychiatrist present a theory of malingering and suggestibility. Ultimately, the jurychose to reject the defense's extreme emotional disturbance defense. Thus, it cannot besaid that there is a "reasonable probability" (People v McKnight, 306 AD2d 546,548 [2003], lv denied 100 NY2d 596 [2003]) that the jury, had it heardHoughtalen testify in support of a theory of insanity under Penal Law§ 40.15, would have instead rejected the People's expert's theory ofmalingering and suggestibility, and returned a verdict more favorable to defendant. Assuch, County Court did not abuse its discretion in determining that it did not need to holda hearing to explore what effect, if any, the findings of Houghtalen's reevaluation wouldhave had upon the verdict had the jury been privy to them.
Defendant's myriad claims of prosecutorial misconduct during the People's openingand closings arguments were not preserved for our review (see People v Studstill, 27AD3d 833, 835 [2006], lv denied 6 NY3d 898 [2006]). Defendant'sremaining arguments, including his claim that the People elicited inadmissible testimonyfrom certain expert witnesses, have been considered and are without merit.
Devine and Clark, JJ., concur.
Lynch, J. (concurring in part and dissenting in part). I respectfully dissent only fromthat part of the majority's conclusion that County Court properly denied defendant's CPL440.10 motion to vacate the judgment of conviction without a hearing.
On a motion to vacate, a hearing is required if the submissions "show that thenonrecord facts sought to be established are material and would entitle [the defendant] torelief" (People v Satterfield, 66 NY2d 796, 799 [1985]; see CPL 440.30[5]; People v Hennessey,111 AD3d 1166, 1168-1169 [2013]). Here, in addressing the motion, County Courtdetermined that its review was limited to facts known to the court at the time of trial, andit noted that neither Rory Houghtalen nor defendant's counsel requested a competencyhearing. The CPL article 440 review, however, is not so limited and must account for anynew, material information outside the trial record.
Here, defendant's submissions reveal that, in July 2010, after sentencing and while instate custody, defendant again attempted suicide and consequently was involuntarilyadmitted to [*5]a psychiatric center, where he receivedmental health treatment until he was discharged in August 2011. While Houghtaleninitially had determined that defendant was competent to stand trial, he now concludes inan affidavit that, upon review of defendant's medical records—including thosegenerated while he was treated at the psychiatric center—and after meeting withdefendant for an unspecified period of time at the state facility in October 2012, CountyCourt should have evaluated defendant to determine whether he was competent to standtrial. Houghtalen explains that, as a result of the treatment received, defendant is nowable to fully explain the extent and duration of his psychosis, providing information thathe did not disclose prior to trial. Based on what he has learned posttrial, Houghtalenbelieves that defendant, a "quietly psychotic" individual, would have qualified for aninsanity defense (see Penal Law § 40.15). According to Houghtalen,defendant was "morbidly depressed and . . . quite paranoid" during the trial,and his condition interfered with his ability to participate in his defense because,principally, he believed that both his attorney and Houghtalen were part of a largerconspiracy against him. Houghtalen candidly acknowledged that defendant shared thisconcern during their last interview while the trial was underway, but explains that he didnot appreciate the extent of defendant's mental illness. Correspondingly, defendantexplains in an affidavit that it was not until he received treatment, and was diagnosed andgiven antipsychotic medication, that he was "relieved of much of the paranoid anddelusional thinking that [he] struggled with every day of [his] life, . . . since[he] was eight to ten years old." I note that, although defendant received a standardmental health assessment while in custody before trial, he did not receive any treatmentuntil after his second suicide attempt.
I am mindful that Houghtalen initially conducted a thorough records review,interviewed defendant at length prior to trial and formulated an opinion to support adefense of extreme emotional disturbance, while ruling out an insanity defense. As such,if this were a matter of an expert witness merely second-guessing himself after aconviction, I would see little, if any, merit to the application. The operative facts here,however, are more compelling. In my view, Houghtalen's affidavit, together with thesupporting affidavit of trial counsel and defendant's own affidavit, were sufficient towarrant a hearing as to whether defendant was competent to participate at his trial, and asto whether such proof creates a probability that the verdict would have been morefavorable to defendant (see CPL 440.10 [1] [e], [g]; 440.30 [5]; People vHennessey, 111 AD3d at 1168-1169; People v Nau, 21 AD3d 568, 568-569 [2005], lvdenied 5 NY3d 855 [2005]; People v Fixter, 79 AD2d 861, 861 [1980]).
Ordered that the judgments and order are affirmed.