People v. Pittman

• Decision Date: 27 September 2013
• Citation: 2013 N.Y. Slip Op. 06099,109 A.D.3d 1080,971 N.Y.S.2d 600
• Parties: The PEOPLE of the State of New York, Respondent, v. Mario PITTMAN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

109 A.D.3d 1080
971 N.Y.S.2d 600
2013 N.Y. Slip Op. 06099

The PEOPLE of the State of New York, Respondent,
v.
Mario PITTMAN, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Sept. 27, 2013.

[971 N.Y.S.2d 601]

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.

MEMORANDUM:

[109 A.D.3d 1080]Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, attempted murder in the first degree (Penal Law §§ 110.00, 125.27[1][a][i]; [b] ) and criminal possession of a weapon in the second degree (§ 265.03 [former (2) ] ). We previously reversed the judgment convicting defendant of those crimes and granted a new trial ( People v. Pittman, 49 A.D.3d 1166, 854 N.Y.S.2d 623), and defendant now appeals from the judgment following the retrial.

We reject defendant's contention that Supreme Court erred in failing sua sponte to order a further competency hearing immediately before trial ( see generally People v. Tortorici, 92 N.Y.2d 757, 765–766, 686 N.Y.S.2d 346, 709 N.E.2d 87,cert. denied528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80). After the judgment was reversed and before the new trial was conducted, defendant was found to be an incapacitated person within the meaning of CPL article 730, but he was later found to be competent and the matter was scheduled for trial. Shortly before trial, based in part upon defendant's history of decompensating after he voluntarily ceased taking his antipsychotic medication when he was placed in jail, the court directed a new evaluation to determine defendant's capacity to assist in his defense. Of the two psychiatrists who evaluated defendant, one found that he was not an incapacitated person but the other was unable to [109 A.D.3d 1081]render a firm opinion due to defendant's refusal to cooperate with the evaluation process. At a court appearance shortly before the scheduled trial date, although both the prosecutor and defense counsel agreed that it “would be prudent to ask ... for a hearing” because the psychiatrists did not agree that defendant was not an incapacitated person, defendant informed the court that he was competent and agreed to cooperate with an evaluation by the second psychiatrist. After that interview, the second psychiatrist also found that defendant was not incapacitated, and the court concluded that a hearing was not necessary due to the agreement among the psychiatrists.

“[I]t is perfectly well settled that a trial court is entitled to give weight to the findings of competency derived from the ordered examinations” ( People v. Ferrer, 16 A.D.3d 913, 914, 791 N.Y.S.2d 721,lv. denied5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669, citing People v. Morgan, 87 N.Y.2d 878, 880, 638 N.Y.S.2d 942, 662 N.E.2d 260). Inasmuch as the court determined that no hearing was necessary based upon the opinions of both psychiatrists that defendant was not an incapacitated person, and neither party requested a hearing at that time, there was no need for a hearing ( seeCPL 730.30[2] ), and the court properly directed that “the criminal action against the defendant ... proceed” ( id.).

Contrary to defendant's further contention, the court did not err in denying his challenge for cause to two prospective jurors. Although those prospective

[971 N.Y.S.2d 602]

jurors may have initially expressed “a state of mind that [was] likely to preclude [them] from rendering an impartial verdict based upon the evidence adduced at the trial” (CPL 270.20[1][b] ), they ultimately both gave an “unequivocal assurance that they [could] set aside any bias and render an impartial verdict based on the evidence” ( People v. Johnson, 94 N.Y.2d 600, 614, 709 N.Y.S.2d 134, 730 N.E.2d 932;see People v. Brandi E., 105 A.D.3d 1341, 1343, 964 N.Y.S.2d 355;People v. Gladding, 60 A.D.3d 1401, 1402, 875 N.Y.S.2d 386,lv. denied12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087). Defendant failed to preserve for our review his contention that the court erred in allowing a sworn juror to remain on the jury, inasmuch as defendant did not object to the court's inquiry of that juror or seek to discharge the juror ( see People v. Dennis, 91 A.D.3d 1277, 1279, 937 N.Y.S.2d 496,lv. denied19 N.Y.3d 995, 951 N.Y.S.2d 472, 975 N.E.2d 918;People v. Rufus, 56 A.D.3d 1175, 1176, 867 N.Y.S.2d 608,lv. denied11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449). In any event, the court properly concluded that the juror was not “grossly unqualified to serve in the case” (CPL 270.35[1]; see People v. Wolff, 103 A.D.3d 1264, 1266, 962 N.Y.S.2d 529,lv. denied21 N.Y.3d 948, 968 N.Y.S.2d 10, 990 N.E.2d 144;People v. Telehany, 302 A.D.2d 927, 928, 754 N.Y.S.2d 508).

Next, as defendant correctly concedes, he failed to preserve for our review his contention that the conviction is not supported [109 A.D.3d 1082]by legally sufficient evidence, because his motion for a trial order of dismissal was not specifically directed at the issues raised on appeal ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, we conclude that the evidence is legally sufficient to support the conviction with respect to all of the charges ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). In addition, viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude...