People v. McGrady — 45 A.D.3d 1395

Majority

p. 1395

The People of the State of New York, Respondent, v Brandon M. McGrady, Appellant.

[844 NYS2d 796]

Appeal from a judgment of the Monroe County Court (Frank E Geraci, Jr., J.), rendered June 1, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [I]). Contrary to defendant’s contention, County Court properly refused to charge the affirmative defense of extreme emotional disturbance. “[Defendant’s] behavior immediately before and after the killing was inconsistent with the loss of control associated with the affirmative defense” (People v Murden, 190 AD2d 822 , 822 [1993], lv denied 81 NY2d 1017 [1993]; see People v Roche, 98 NY2d 70 , 76-77 [2002]; People v Barber, 2 AD3d 1290 , 1292 [2003], lv denied 2 NY3d 761 [2004]; People v Zamora, 309 AD2d 957 [2003], lv denied 1 NY3d 583 [2003]), nor was there otherwise the requisite “sufficient credible evidence . . . presented for the jury to find, by a preponderance of the evidence, that the elements of the affirmative defense [had] been established” (People v White, 79 NY2d 900 , 902-903 [1992]). We reject the contention of defendant that he was deprived of his right to counsel when the police refused to allow him to contact his father before interviewing him (see People v Fuschino, 59 NY2d 91 , 100 [1983]; People v Martin, 39 AD3d 1213 [2007], lv denied 9 NY3d 878 [2007]), and we conclude that the record of the suppression hearing supports the court’s determination that defendant’s statements to the police were voluntarily made (see People v Mateo, 2 NY3d 383 , 413-414 [2004], cert denied 542 US 946 [2004]; People v Coleman, 306 AD2d 941 [2003], lv denied 1 NY3d 596 [2004]). Also contrary to the contention of defendant, the court properly refused to allow his five-year-old sister to testify on his behalf in view of the ambiguities in her statements concerning her understanding of the difference between the truth and a lie. “ ‘The resolution of the issue of witness competency is exclusively the responsibility of the trial court, subject to limited appellate

p. 1396

review,’ and should not be disturbed absent a clear abuse of discretion” (People v Rising, 289 AD2d 1069 , 1070 [2001], lv denied 97 NY2d 732 [2002], quoting People v Parks, 41 NY2d 36 , 46 [1976]). Here, there was no clear abuse of discretion. Finally, we conclude that defendant received meaningful representation (s ee generally People v Baldi, 54 NY2d 137 , 147 [1981]), and the sentence is not unduly harsh or severe. Present—Scudder, P.J., Hurlbutt, Smith, Fahey and Pine, JJ.

Cases cited

People v. Murden 190 AD2d 822 N.Y. App. Div. 1993-02-16 at 822 p. 1395
People v. Roche 98 NY2d 70 N.Y. 2002-06-04 at 76-77 p. 1395
People v. Barber 2 AD3d 1290 N.Y. App. Div. 2003-12-31 at 1292 p. 1395
People v. Zamora 309 AD2d 957 N.Y. App. Div. 2003-10-27 p. 1395
People v. White 79 NY2d 900 N.Y. 1992-02-25 at 902-903 p. 1395
People v. Fuschino 59 NY2d 91 N.Y. 1983-05-03 at 100 p. 1395
Middleton v. McNeil 542 US 946 SCOTUS 2004-06-28 p. 1395
People v. Coleman 306 AD2d 941 N.Y. App. Div. 2003-06-13 p. 1395
People v. Baldi 54 NY2d 137 N.Y. 1981-10-29 at 147 p. 1396