People v. Rodriguez, 13967.

• Decision Date: 08 April 2004
• Docket Number: 13967.
• Citation: 6 A.D.3d 814,2004 NY Slip Op 02620,776 N.Y.S.2d 105
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DANIEL RODRIGUEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

6 A.D.3d 814

776 N.Y.S.2d 105

2004 NY Slip Op 02620

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DANIEL RODRIGUEZ, Appellant.

13967.

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

April 8, 2004.

Appeal from a judgment of the County Court of Greene County (Pulver, Jr., J.), rendered March 5, 2002, upon a verdict convicting defendant of the crimes of murder in the second degree and criminal possession of a weapon in the second degree.

ROSE, J.

Defendant was indicted and charged with murder in the second degree, conspiracy in the second degree and criminal possession of a weapon in the second degree as a result of his admitted, execution style shooting of a member of his gang, the upstate Latin Kings, on July 1, 2001. Defendant was arraigned on July 17, 2001 and, on August 3, 2001, County Court set November 13, 2001 as the date for joint trial of defendant and his alleged coconspirators.

On September 12, 2001, shortly after County Court advanced the trial date to November 7, 2001, defense counsel requested and received an order authorizing defendant's evaluation by Steven Altschuler, a psychologist. Although defendant was examined twice by Altschuler over the next two weeks, Altschuler was unable to conclude his assessment without a neurological examination because defendant had several self-reported untreated head injuries. On September 25, 2001, County Court authorized such an examination and directed submission of an order.

On September 28, 2001, simultaneous with its written decision to sever defendant's case, County Court advanced the trial date by two weeks to October 24, 2001 over defense counsel's objection. On October 11, 2001, defense counsel submitted the proposed order for the neurological examination; five days later the court told him that it would not sign the order as presented and directed submission of additional information. On that same day, defense counsel moved in writing for an adjournment of the trial so that the neurological and psychological evaluations could be completed. In his affidavit in support of the motion, defense counsel detailed his attempts to contact several neurological groups to no avail. One neurologist, however, initially represented that he might be able to examine defendant but, after reviewing his schedule, declined to do so due to time constraints imposed by the impending trial date. Although the People took no position on the motion, County Court denied an adjournment based on its observations that defendant had not filed a notice of intent to present psychiatric evidence and failed to present an affidavit of either himself or a psychologist asserting facts supporting a defense of mental disease or defect.

Following a jury trial, at which he relied solely on the affirmative defense of duress (see Penal Law § 40.00), defendant was convicted of the charges of murder in the second degree and criminal possession of a weapon in the second degree, but acquitted of the conspiracy charge. County Court subsequently sentenced him to concurrent prison terms of 25 years to life on the murder count and 15 years with five years of postrelease supervision on the weapon count. Defendant appeals.

Initially, we find no error in County Court's failure to separately instruct the jury that its decision to accept or reject defendant's defense of duress had to be unanimous. County Court properly instructed the jury as to the necessity of a unanimous verdict in deciding defendant's guilt on each charge as itemized on the jury verdict sheet. Similarly, because County Court instructed the jury that it must consider the duress defense before answering the question of guilt or innocence on each charge, it was not error to omit a separate item on the verdict sheet for the jury's decision regarding the defense of duress. Nor did County Court err in failing to instruct the jury that the testimony of one of the gang member witnesses to the victim's execution must be considered in light of a benefit conferred upon him by the prosecution. The record does not establish that the assistance provided to the witness by the prosecutor's office in finding a new place to live was truly a benefit rather than simply necessary to protect him from retribution.

We do find merit, however, in defendant's argument that County Court's refusal to grant an adjournment of the trial deprived him of his right to present a potential defense. The decision to grant or deny an adjournment ordinarily lies within the sound discretion of the trial court (see People v Spears, 64 NY2d 698, 699-700 [1984]; People v McNear, 265 AD2d 810, 810-811 [1999], lv denied 94 NY2d 864 [1999]). This discretionary power, however, is more narrowly construed where a defendant's fundamental rights are implicated (see People v Spears, supra at 700; People v Matthews, 148 AD2d 272, 276 [1989], lv denied 74 NY2d 950 [1989]; People v Danaher, 115 AD2d 905, 906-907 [1985]). Thus, where...