People v. Smith
| Decision Date | 24 July 2019 |
| Docket Number | 2017–01540,Ind.No. 1652/15 |
| Parties | The PEOPLE, etc., Respondent, v. Gary SMITH, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Del Atwell, East Hampton, NY, for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Rosalind C. Gray and Thomas Costello of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
ORDERED that the judgment is affirmed.
The defendant was charged with attempted murder in the second degree and related offenses arising out of an incident wherein he brandished a knife at the complainant, threatened to kill her, had sex with her without her consent, and thereafter stabbed her multiple times and ran away.
Prior to trial, the County Court held a Huntley hearing (see People v. Huntley , 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 ) to determine the admissibility of various statements the defendant made at the time of his arrest. The defendant's contention on appeal that the court should have held a separate Mapp hearing (see Mapp v. Ohio , 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 ) to determine the admissibility of physical evidence is unpreserved for appellate review (see CPL 470.05 ), and, in any event, without merit. The hearing court incorporated the Mapp hearing into the Huntley hearing without objection by the defendant, and the defendant had the opportunity to call witnesses and cross-examine the People's witness about the physical evidence at issue. The defendant's further contentions challenging the admissibility of the physical evidence are also unpreserved for appellate review (see CPL 470.05 ), and, in any event, without merit (see People v. Velasquez , 110 A.D.3d 835, 836, 972 N.Y.S.2d 678 ; People v. Gonzalez , 222 A.D.2d 453, 453, 634 N.Y.S.2d 538 ).
Contrary to the defendant's contention, the evidence was legally sufficient to establish the defendant's guilt of attempted murder in the second degree beyond a reasonable doubt (see Penal Law §§ 110, 125.25[1] ; People v. Edwards , 160 A.D.3d 658, 658, 73 N.Y.S.3d 602 ). The defendant's contention that the evidence was not legally sufficient to establish his guilt of rape in the third degree beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05 ), and, in any event, without merit (see Penal Law §§ 130.05, 130.25 ; People v. Newton , 8 N.Y.3d 460, 464, 835 N.Y.S.2d 546, 867 N.E.2d 397 ; People v. Powell , 128 A.D.3d 1174, 1176, 9 N.Y.S.3d 452 ). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to each of the charges of which the defendant was convicted was not against the weight of the evidence (see People v. Romero , 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that the County Court deprived him of his right to present a defense by precluding the testimony of two witnesses regarding the state of the complainant's mental health 9 years before the incident and 10 years before her testimony is unpreserved for appellate review (see CPL 470.05 ), and, in any event, without merit (see People v. Gray , 160 A.D.3d 765, 765, 71 N.Y.S.3d 384 ; People v. Ragland , 240 A.D.2d 598, 598, 658 N.Y.S.2d 448 ). We agree with the court's determination to preclude the proffered testimony as speculative and too remote in time to suggest that the complainant was not competent to testify at trial (see People v. Gray , 160 A.D.3d at 766, 71 N.Y.S.3d 384 ; People v. Ragland , 240 A.D.2d at 598, 658 N.Y.S.2d 448 ).
The sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 ). We agree with the County Court that consecutive sentences were appropriate, as the acts underlying the count of rape in the third degree were separate and distinct from those underlying the charges of attempted murder in the second degree, assault in the first degree, and assault in the second degree (see People v. Soto , 155 A.D.3d 1066, 1067, 64 N.Y.S.3d 33 ; People v. Marte , 52 A.D.3d 737, 737–738, 860 N.Y.S.2d 191, affd 12 N.Y.3d 583, 884 N.Y.S.2d 205, 912 N.E.2d 37 ).
The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" ( People v. Maxwell , 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans , 16 N.Y.3d 571, 575 n 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). Since the...
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Witness competence
...incompetent to testify; the presumption of competency prevails. WITNESS COMPETENCE 14-13 WITNESS COMPETENCE §14:140 People v. Smith , 174 A.D.3d 825, 106 N.Y.S.3d 318 (2d Dept. 2019). During trial for attempted murder, the trial court properly precluded the testimony of two witnesses regard......
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Witness competence
...capacity, as the appropriate inquiry is whether the testator was lucid and rational at the time the will was signed. People v. Smith , 174 A.D.3d 825, 106 N.Y.S.3d 318 (2d Dept. 2019). During trial for attempted murder, the trial court properly precluded the testimony of two witnesses regar......
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Witness competence
...illness does not automatically render an individual incompetent to testify; the presumption of competency prevails. People v. Smith , 174 A.D.3d 825, 106 N.Y.S.3d 318 (2d Dept. 2019). During trial for attempted murder, the trial court properly precluded the testimony of two witnesses regard......