People v. Powell

• Decision Date: 07 May 2021
• Docket Number: 474,KA 17-00132
• Citation: 194 A.D.3d 1423,146 N.Y.S.3d 712
• Parties: The PEOPLE of the State of New York, Respondent, v. Timothy T. POWELL, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 1423

146 N.Y.S.3d 712

The PEOPLE of the State of New York, Respondent,

v.Timothy T. POWELL, Defendant-Appellant.

474

KA 17-00132

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

Entered: May 7, 2021

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (HELEN SYME OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of two counts of assault in the second degree ( Penal Law § 120.05 [3] ). Defendant contends that County Court (Kehoe, A.J.) erred in not ordering a competency examination or holding a competency hearing. We reject that contention. An "incapacitated person" is defined in the CPL as a defendant "who as a result of mental disease or defect lacks capacity to understand the proceedings against him [or her] or to assist in his [or her] own defense" ( CPL 730.10 [1] ). "The key inquiry in determining whether a criminal defendant is fit for trial is ‘whether he [or she] has sufficient present ability to consult with his [or her] lawyer with a reasonable degree of rational understanding—and whether he [or she] has a rational as well as factual understanding of the proceedings against him [or her]’ " ( People v. Phillips , 16 N.Y.3d 510, 516, 924 N.Y.S.2d 4, 948 N.E.2d 428 [2011] ; see People v. Mendez , 1 N.Y.3d 15, 19, 769 N.Y.S.2d 162, 801 N.E.2d 382 [2003] ).

A court must issue an order of examination "when it is of the opinion that the defendant may be an incapacitated person" ( CPL 730.30 [1] ). The determination whether to order a competency examination, either sua sponte or upon defense counsel's request, lies within the sound discretion of the court (see People v. Morgan , 87 N.Y.2d 878, 879-880, 638 N.Y.S.2d 942, 662 N.E.2d 260 [1995] ). Here, the court (Doyle, J.) ordered a competency examination pursuant to CPL 730.30 (1) and found defendant was not fit to proceed. After approximately a year and upon the determination of the superintendent of the institution where defendant was being held that he was no longer an incapacitated person, defendant was returned to court. At that point, a "court may, upon its own motion, conduct a hearing to determine the issue of capacity, and it must conduct a hearing upon motion therefor by the defendant or by the district attorney" ( CPL 730.30 [2] ; see CPL 730.60 [2] ; People v. Tortorici , 92 N.Y.2d 757, 766, 686 N.Y.S.2d 346, 709 N.E.2d 87 [1999], cert denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 [1999] ). "If no motion for a hearing is made, the criminal action against the defendant must proceed" ( CPL 730.30 [2] ).

Upon defendant's return to court, defense counsel requested another CPL 730.30 examination but did not move for a competency hearing (see People v. Lendof-Gonzalez , 170 A.D.3d 1508, 1511, 95 N.Y.S.3d 675 [4th Dept. 2019], affd 36 N.Y.3d 87, 139 N.Y.S.3d 84, 163 N.E.3d 15 [2020] ), and thus a hearing was not required but rather was a matter of discretion for the court (see CPL 730.30 [2] ; Tortorici , 92 N.Y.2d at 766, 686 N.Y.S.2d 346, 709 N.E.2d 87 ). We conclude that the court (Kehoe, A.J.) did not abuse its discretion in not holding a competency hearing (see Tortorici , 92 N.Y.2d at 766, 686 N.Y.S.2d 346, 709 N.E.2d 87 ; People v. Ubbink , 100 A.D.3d 1528, 1529, 954 N.Y.S.2d 341 [4th Dept. 2012], lv denied 20 N.Y.3d 1066, 962 N.Y.S.2d 617, 985 N.E.2d 927 [2013] ; People v. Rios , 26 A.D.3d 521, 521, 809 N.Y.S.2d 463 [2d Dept. 2006], lv denied 6 N.Y.3d 852, 816 N.Y.S.2d 758, 849 N.E.2d 981 [2006] ; see also People v. Sulaiman , 134 A.D.3d 860, 860, 20 N.Y.S.3d 650 [2d Dept. 2015], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016] ). We further conclude that the court did not abuse its discretion in declining to order another CPL 730.30 examination upon defense counsel's request (see Morgan , 87 N.Y.2d at 879-880, 638 N.Y.S.2d 942, 662 N.E.2d 260 ; see also People v. Russell , 74 N.Y.2d 901, 902, 549 N.Y.S.2d 646, 548 N.E.2d 1297 [1989] ; Rios , 26 A.D.3d at 521, 809 N.Y.S.2d 463 ). In not holding a hearing and in declining defendant's request for an updated CPL 730.30 examination, the court properly considered its own observations of and interactions with defendant prior to and during the trial (see Phillips , 16 N.Y.3d at 517, 924 N.Y.S.2d 4, 948 N.E.2d 428 ; Tortorici , 92 N.Y.2d at 766-767, 686 N.Y.S.2d 346, 709 N.E.2d 87 ; Morgan , 87 N.Y.2d at 880-881, 638 N.Y.S.2d 942, 662 N.E.2d 260 ).

While the court acknowledged that defendant had mental health problems, "a defendant's history of psychiatric illness does not in itself call into question defendant's competence to stand trial" ( Tortorici , 92 N.Y.2d at 765, 686 N.Y.S.2d 346, 709 N.E.2d 87 ; see Morgan , 87 N.Y.2d at 881, 638 N.Y.S.2d 942, 662 N.E.2d 260 ). Nor does defendant's insistence on a trial in the face of overwhelming evidence of his guilt and a favorable plea bargain mean that he was unfit to proceed (see People v. Musaid , 168 A.D.3d 526, 527, 91 N.Y.S.3d 93 [1st Dept. 2019], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d...