People v Mc Grady

People v McGrady 2007 NY Slip Op 08647 [45 AD3d 1395] November 9, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

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

—[*1] Edward J. Nowak, Public Defender, Rochester (David M. Abbatoy, Jr., of counsel), for defendant-appellant.

Michael C. Green, District Attorney, Rochester (Patrick H. Fierro of counsel), for respondent.

Appeal from a judgment of the Monroe County Court (Frank P. 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 [1]). 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 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 (see 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.