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People v. McGrady

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 9, 2007
45 A.D.3d 1395 (N.Y. App. Div. 2007)

Opinion

No. KA 05-01444.

November 9, 2007.

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.

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.

Present: Scudder, P.J., Hurlbutt, Smith, Fahey and Pine, JJ.


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). 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, lv denied 81 NY2d 1017; see People v Roche, 98 NY2d 70, 76-77; People v Barber, 2 AD3d 1290, 1292, lv denied 2 NY3d 761; People v Zamora, 309 AD2d 957, lv denied 1 NY3d 583), 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). 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; People v Martin, 39 AD3d 1213, lv denied 9 NY3d 878), 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, cert denied 542 US 946; People v Coleman, 306 AD2d 941, lv denied 1 NY3d 596). 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, lv denied 97 NY2d 732, quoting People v Parks, 41 NY2d 36, 46). 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), and the sentence is not unduly harsh or severe.


Summaries of

People v. McGrady

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 9, 2007
45 A.D.3d 1395 (N.Y. App. Div. 2007)
Case details for

People v. McGrady

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BRANDON M. MCGRADY…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 9, 2007

Citations

45 A.D.3d 1395 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 8647
844 N.Y.S.2d 796

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