People v. Brand

• Decision Date: 16 December 2004
• Docket Number: 77750.
• Citation: 13 A.D.3d 820,787 N.Y.S.2d 169,2004 NY Slip Op 09335
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DARRELL ROBERT BRAND, Appellant.
• Court: New York Supreme Court — Appellate Division

13 A.D.3d 820

787 N.Y.S.2d 169

2004 NY Slip Op 09335

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DARRELL ROBERT BRAND, Appellant.

77750.

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 16, 2004.

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered July 19, 1996, upon a verdict convicting defendant of the crimes of murder in the second degree and criminal possession of a weapon in the third degree.

MERCURE, J.

In December 1994, defendant fatally shot his wife (hereinafter the victim) in the head with a .22 caliber rifle while she was in bed at their home in the Town of Altona, Clinton County. Defendant contacted emergency services and told police officers arriving at the scene that he shot the victim after an argument over her infidelity. Thereafter, defendant was charged in a two-count indictment with murder in the second degree and criminal possession of a weapon in the third degree. Following a jury trial, defendant was convicted as charged and sentenced to concurrent prison terms aggregating 25 years to life. Defendant appeals and we now affirm.

In support of his defense that he was sleepwalking when he shot the victim and, therefore, lacked the intent to kill her, defendant sought various evaluations, including a sleep evaluation. He asserts that County Court erred in denying his request pursuant to County Law § 722-c for the sleep evaluation, an expert to interpret the results of that evaluation and a neuropsychologist. In order to have prevailed on his motion for expert services, defendant was required to show that the services requested were necessary to the defense and, because the compensation for the services would exceed $300, extraordinary circumstances (see People v Dove, 287 AD2d 806, 807 [2001]; People v Lane, 195 AD2d 876, 878 [1993], lv denied 82 NY2d 850 [1993]).^* In connection with defendant's motion, one of two psychiatrists involved in the case on defendant's behalf indicated that defendant was in a state of psychological automatism at the time of the shooting, but that the requested additional services were necessary to clarify whether he was in that state due to a psychotic episode or a sleepwalking episode.

The People, however, did not dispute the type of unconscious automatism that defendant may have experienced at the time of the shooting or that he suffered from a sleep disorder; instead, the People sought to prove that defendant was entirely conscious and acting intentionally when he shot the victim and that he merely fabricated amnesia attributable to an unconscious state. Given the testimony of another of his psychiatric experts, Stuart Kleinman, that defendant was in a state of automatism at the time of the attack, we conclude that defendant was fully able to challenge the People's assertions and that County Court's denial of his application for additional services did not constitute an abuse of discretion or in any way impair his right to present an adequate defense (see People v Dove, supra at 807). Moreover, County Court did not deprive defendant of the assistance of a psychiatrist or prevent him from confronting the witnesses against him by denying defendant's request for an additional adjournment when he had not received the formal reports of Kleinman or the People's rebuttal witness prior to the start of trial. Defendant received both reports prior to the close of the People's case and was able to thoroughly examine both witnesses regarding their opinions of defendant's state of mind at the time of the shooting (see Matter of Hasan R., 177 AD2d 817, 817 [1991]; cf. People v Rodriguez, 6 AD3d 814, 816-817 [2004]).

Also unpersuasive is defendant's argument that statements he made to police officers about the circumstances of the shooting should have been suppressed. Prior to giving defendant Miranda warnings, a police officer, arriving on the scene with his gun drawn, immediately asked defendant, "What happened?" When defendant responded that he had been in an argument with the victim and he hoped that she was alright, the officer asked where the victim and children were in the house. The officer indicated that he knew one person in the residence was injured and that he was proceeding with caution to prevent further injury to anyone else. Because the officer's investigatory questions were made to clarify the nature of the volatile and dangerous situation confronted, as well as to locate the victim so that medical help could be rendered, defendant's statements were not the product of a custodial interrogation designed to coerce a statement and County Court properly declined to suppress them (see People v Huffman, 41 NY2d 29, 33-34 [1976]; People v Prue, 8 AD3d 894, 897 [2004], lv denied 3 NY3d 680 [2004]; see generally People v Warren, 300 AD2d 692, 693-694 [2002], lv denied 99 NY2d 621 [2003]). Similarly, defendant's brief silence and head nods after being read Miranda rights several times, coupled with his failure to request counsel when prompted by police officers and readily answering the questions posed by the officers at the crime scene and police station, cannot be said to have signaled an invocation of his right to remain silent (see People v Nunez, 176 AD2d 70, 72 [1992], affd 80 NY2d 858 [1992]; see also People v Carrion, 277 AD2d 480, 481 [2000], lv denied 96 NY2d 757 [2001]). Thus, County Court properly...