People v. Stanton

• Decision Date: 16 December 2021
• Docket Number: 110889, 112039
• Citation: 200 A.D.3d 1307,158 N.Y.S.3d 416
• Parties: The PEOPLE of the State of New York, Respondent, v. Matthew STANTON, Appellant.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1307
158 N.Y.S.3d 416

The PEOPLE of the State of New York, Respondent,
v.
Matthew STANTON, Appellant.

110889, 112039

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

Calendar Date: October 21, 2021
Decided and Entered: December 16, 2021

158 N.Y.S.3d 418

Law Office of Stephen N. Preziosi, PC, New York City (Stephen N. Preziosi of counsel), for appellant.

P. David Soares, District Attorney, Albany (Michael E. Wetmore of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

158 N.Y.S.3d 419

Appeals (1) from a judgment of the Supreme Court (McDonough, J.), rendered May 11, 2018 in Albany County, convicting defendant following a nonjury trial of the crimes of burglary in the first degree, assault in the second degree (three counts), aggravated criminal contempt (two counts), criminal contempt in the second degree (three counts), assault in the third degree and attempted coercion in the first degree, and (2) by permission, from an order of said court, entered January 16, 2020 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was charged in a 15–count indictment with various crimes after he went to his parents' home on more than one occasion and physically attacked them, then contacted them in violation of orders of protection. After a nonjury trial at which his parents did not testify, defendant was convicted of 11 crimes and was sentenced to an aggregate prison term of eight years, to be followed by five years of postrelease supervision. More than a year later, defendant moved to vacate the judgment of conviction pursuant to CPL 440.10. Supreme Court denied the motion without a hearing. Defendant appeals from the judgment of conviction and, with this Court's permission, from the order denying his CPL article 440 motion.

"A finding of trial competency is within the sound discretion of the trial court" and appellate courts "must accord substantial deference to the trial court's determination so long as it is supported by the record" ( People v. Phillips, 16 N.Y.3d 510, 517, 924 N.Y.S.2d 4, 948 N.E.2d 428 [2011] [citations omitted]). The trial court must assess the testimony of the experts, but also "may consider its own personal observations of a defendant in determining fitness for trial" ( id. ; see People v. Richardson, 155 A.D.3d 1099, 1100, 64 N.Y.S.3d 353 [2017] ). We cannot conclude that Supreme Court abused its discretion in finding defendant competent to stand trial, based on its own observations of defendant and the testimony of two psychologists who reached such an opinion, even though another experienced psychologist opined that defendant was not competent (see People v. Phillips, 16 N.Y.3d at 518–519, 924 N.Y.S.2d 4, 948 N.E.2d 428 ; People v. Frazier, 16 N.Y.3d 36, 42, 916 N.Y.S.2d 574, 941 N.E.2d 1151 [2010] ).

Hearsay is "an out-of-court statement admitted for the truth of the matter asserted, and the hearsay rule generally prohibits the introduction of such statements at trial" ( People v. Slade, 37 N.Y.3d 127, 140, 148 N.Y.S.3d 413, 170 N.E.3d 1189 [2021] [internal quotation marks and citation omitted]). A police officer testified at trial that he reported to the emergency room and observed that defendant's parents had been badly beaten. While he was there, defendant's mother received a phone call from defendant in which he threatened to kill his parents if they contacted the police. The officer further testified that the mother told him that "she wouldn't leave the room unless [he] promised her that [he] would stay and take care of [defendant's father] because [defendant] would kill him if she didn't stay." This statement by the mother was not hearsay as it was not offered for the truth of the matter asserted but, rather, to demonstrate

158 N.Y.S.3d 420

her state of mind (i.e., her belief and fear in that moment caused by defendant's threat meant to dissuade her from reporting the assault) (see People v. Ricco, 56 N.Y.2d 320, 328, 452 N.Y.S.2d 340, 437 N.E.2d 1097 [1982] ; People v. Shackelton, 177 A.D.3d 1163, 1164–1165, 115 N.Y.S.3d 488 [2019], lv denied 34 N.Y.3d 1162, 120 N.Y.S.3d 270, 142 N.E.3d 1172 [2020] ; People v. Bruner, 222 A.D.2d 738, 739, 634 N.Y.S.2d 862 [1995], lv denied 88 N.Y.2d 981, 649 N.Y.S.2d 387, 672 N.E.2d 613 [1996] ; compare People v. Pascuzzi, 173 A.D.3d 1367, 1377, 102 N.Y.S.3d 778 [2019], lv denied 34 N.Y.3d 953, 110 N.Y.S.3d 624, 134 N.E.3d 623 [2019] ). Therefore, Supreme Court did not err in admitting this statement into evidence.

Defendant argues that Supreme Court erred in allowing the People to amend a count of the indictment from charging coercion in the first degree to attempted coercion in the first degree. After the close of proof, defendant moved to dismiss, among other things, the coercion count. Following some discussion with counsel, the court stated that it would consider only attempted coercion in the first degree, "as more appropriately coinciding with the evidence." Rather than amending the indictment, it appears that the court – in its role as both judge and factfinder in this nonjury trial – simply agreed to, and then did, consider attempted coercion in the first degree as a lesser included offense (see People v. Phillips , 256 A.D.2d 733, 735, 682 N.Y.S.2d 685 [1998] ).

A lesser included offense of a crime charged in an indictment may be considered by the factfinder "provided that the elements of the two crimes are such that it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct and there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater" ( People v. Baker, 123 A.D.3d 1378, 1379, 999 N.Y.S.2d 595 [2014] [internal quotation marks, brackets and citations omitted]; People v. Anatriello, 161 A.D.3d 1383, 1387, 77 N.Y.S.3d 581 [2018], lv denied 31 N.Y.3d 1144, 83 N.Y.S.3d 426, 108 N.E.3d 500 [2018] ). As it is impossible to commit the crime of coercion in the first degree without concomitantly attempting to commit such crime, attempted coercion in the first degree is a lesser included offense of coercion in the first degree (see Penal Law §§ 135.65[1] ; 110.00; People v. Wager, 199 A.D.2d 642, 643, 604 N.Y.S.2d 1008 [1993], lv denied 83 N.Y.2d 811, 611 N.Y.S.2d 147, 633 N.E.2d 502 [1994] ). A reasonable view of the evidence would support a finding that defendant did not succeed in his coercion, but that he attempted to do so. Accordingly, Supreme Court had the discretion to consider attempted coercion in the second degree as a lesser included offense, regardless of whether defendant consented (see CPL 300.50[1], [2] ; People v. Phillips, 256 A.D.2d at 734, 682 N.Y.S.2d 685 ). Moreover, "[e]ven if the court's action could be viewed as an ‘amendment’ of the indictment pursuant to CPL 200.70,...