People v. Childress

• Decision Date: 04 November 1991
• Citation: 177 A.D.2d 498,575 N.Y.S.2d 1018
• Parties: The PEOPLE, etc., Respondent, v. Craig CHILDRESS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1018

575 N.Y.S.2d 1018

177 A.D.2d 498

The PEOPLE, etc., Respondent, v. Craig CHILDRESS, Appellant.

Supreme Court of New York, Appellate Division,

Second Department.

November 4, 1991

Matthew Muraskin, Hempstead (Kent V. Moston and Alfred O'Connor of counsel), for appellant. Denis Dillon, Dist. Atty., Mineola (Bruce E. Whitney and Peter Shapiro, of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Baker, J.), rendered February 2, 1989, convicting him of burglary in the second degree and possession of burglar's tools, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. Contrary to the defendant's contention on appeal, the court did not err in concluding, after a hearing, that the defendant was competent to stand trial (see, CPL 730.10). The ultimate determination of this issue lies with the court (People v. Bolling, 114 A.D.2d 416, 417, 494 N.Y.S.2d 332). Upon our review of the record, we are satisfied that the People sustained their burden of proving by a preponderance of the credible evidence that the defendant is not an incapacited person (People v. Orama, 150 A.D.2d 505, 541 N.Y.S.2d 102; People v. Allen, 135 A.D.2d 823, 522 N.Y.S.2d 926; People v. Breeden, 115 A.D.2d 484, 495 N.Y.S.2d 715; People v. Santos, 43 A.D.2d 73, 349 N.Y.S.2d 439). Further, in consideration of the conflicting evidence of competency, it cannot be said that the hearing court's determination was against the weight of the credible evidence (People v. Orama, supra, 150 A.D.2d at 506, 541 N.Y.S.2d 102; People v. Breeden, supra; People v. Bolling, supra; People v. Carl, 58 A.D.2d 948, 397 N.Y.S.2d 193, revd. on other grounds 46 N.Y.2d 806, 413 N.Y.S.2d 916, 386 N.E.2d 828). The trial court did not err in denying the defense request for a jury charge on the lesser included offense of criminal trespass in the second degree. No reasonable view of the evidence supports a finding that the defendant committed the lesser included offense but not the greater (see, People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376). The defendant has failed to substantiate his claim that the prosecutor's use of his peremptory challenges to exclude black venirepesons from the jury violated his rights under the Sixth and Fourteenth Amendment (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649), since the voir dire...