People v. Wright

• Decision Date: 07 June 2013
• Citation: 967 N.Y.S.2d 296,2013 N.Y. Slip Op. 04138,107 A.D.3d 1398
• Parties: The PEOPLE of the State of New York, Respondent, v. Luke J. WRIGHT, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1398
967 N.Y.S.2d 296
2013 N.Y. Slip Op. 04138

The PEOPLE of the State of New York, Respondent,
v.
Luke J. WRIGHT, Defendant–Appellant.

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

June 7, 2013.

[967 N.Y.S.2d 297]

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

Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND SCONIERS, JJ.

[967 N.Y.S.2d 298]

MEMORANDUM:

[107 A.D.3d 1398]Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (two counts) (Penal Law § 120.10 [1] ); predatory sexual assault (§ 130.95[1][b] ) with aggravated sexual abuse in the first [107 A.D.3d 1399]degree (§ 130.70[1][a] ) as the underlying crime; one count each of rape and criminal sexual act in the first degree (§§ 130.35[1]; 130.50[1] [forcible compulsion] ) and rape and criminal sexual act in the second degree (§§ 130.30[2]; 130.45[2] [mentally disabled victim] ); incest in the third degree (§ 255.25); unlawful imprisonment in the first degree as a hate crime (§§ 135.10, 485.05[1] [b] ); and endangering the welfare of an incompetent or physically disabled person (§ 260.25). We reject defendant's contention that County Court erred in determining after a hearing that defendant was not an incapacitated person ( seeCPL 730.10[1] ). We conclude that the prosecution met its burden of establishing by a preponderance of the evidence that defendant possessed the capacity to understand the nature of the proceedings against him and that he was capable of assisting in his own defense ( see People v. Mendez, 1 N.Y.3d 15, 19–20, 769 N.Y.S.2d 162, 801 N.E.2d 382;People v. Surdis, 77 A.D.3d 1018, 1018, 909 N.Y.S.2d 170,lv. denied16 N.Y.3d 800, 919 N.Y.S.2d 517, 944 N.E.2d 1157). Defendant was examined by two forensic psychiatrists, each of whom concluded that defendant was competent to stand trial, and the hearing court's competency ruling is entitled to great deference ( see Surdis, 77 A.D.3d at 1018–1019, 909 N.Y.S.2d 170;People v. Brow, 255 A.D.2d 904, 904–905, 682 N.Y.S.2d 320). We reject defendant's further contention that the court erred in failing to reopen the competency hearing based upon the report defendant's psychologist issued following the hearing but based on the result of his examinations of defendant prior to the hearing. We recognize that the court has a continuing duty to inquire into a defendant's competency where facts arise during trial that indicate that the defendant cannot understand the proceedings or assist in his or her defense ( see People v. Taylor, 13 A.D.3d 1168, 1169, 787 N.Y.S.2d 539,lv. denied4 N.Y.3d 836, 796 N.Y.S.2d 591, 829 N.E.2d 684). However, at the time defendant moved to reopen the hearing, defense counsel indicated that he had not observed any change in defendant during the course of his representation. Further, defense counsel made no allegations indicating that there was any change in defendant's conduct after the initial hearing, and the court had the opportunity during trial to observe defendant and his interaction with counsel. Under these circumstances, we conclude that the court did not abuse its discretion in refusing to reopen the competency hearing ( see People v. Johnson, 52 A.D.3d 1040, 1042, 860 N.Y.S.2d 281,lv. denied11 N.Y.3d 833, 868 N.Y.S.2d 607, 897 N.E.2d 1091). We note in any event that, during the trial the court permitted defendant's expert, over the objection of the prosecutor, to testify that in his opinion defendant was not competent to stand trial.

Defendant failed to preserve for our review his contention that his waiver of the right to be present at bench conferences [107 A.D.3d 1400]during jury selection was not knowingly, voluntarily and intelligently made ( see People v. King, 234 A.D.2d 391, 391, 652 N.Y.S.2d 46,lv. denied89 N.Y.2d 986, 656 N.Y.S.2d 745, 678 N.E.2d 1361). In any event, that contention has no merit. Defendant was apprised by the court that it would not conduct bench conferences if he insisted on being present, whereupon defendant expressly waived his right to be present. We conclude that the waiver was knowingly, intelligently and voluntarily made ( see

[967 N.Y.S.2d 299]

People v. Cahill, 2 N.Y.3d 14, 55–56, 777 N.Y.S.2d 332, 809 N.E.2d 561;People v. Vargas, 88 N.Y.2d 363, 375–378, 645 N.Y.S.2d 759, 668 N.E.2d 879).

Also contrary to defendant's contention, the court properly allowed the People to amend the indictment. The amendments did not change the theory of the prosecution and did not “otherwise tend to prejudice the defendant on the merits” (CPL 200.70[1]; see People v. Brink, 31 A.D.3d 1139, 1140, 818 N.Y.S.2d 374,lv. denied7 N.Y.3d 865, 824 N.Y.S.2d 610, 857 N.E.2d 1141). Defendant's contention that certain photographs of the victim were inflammatory and should not have been admitted in evidence lacks merit. The court had broad discretion in determining whether the probative value of the photographs outweighed any prejudice to defendant ( see People v. Law, 273 A.D.2d 897, 898, 710 N.Y.S.2d 223,lv. denied95 N.Y.2d 965, 722 N.Y.S.2d 483, 745 N.E.2d 403). Here, the photographs were relevant with respect to, inter alia, the nature and extent of the injuries ( see id.).

Defendant failed to preserve for our review his further contentions that his constitutional rights were violated by...