OPINION OF THE COURT
Following a jury trial defendant was convicted of murder in the second degree. She now moves to set the verdict aside on the grounds that it is against the weight of the evidence and that the court erred in failing to charge the jury with respect to the affirmative defense of mental disease or defect.
With regard to the first prong of defendant’s motion, a trial court is empowered to set aside a verdict based upon an error which if raised upon appeal would requirе a reversal or modification as a matter of law (CPL 330.30 [1]). A reversal or modification based upon weight of evidence considerations involves matters of fact, not of law. Therefore, this court is without authority to grant defendant’s motiоn on the ground that the verdict is against the weight of the evidence (People v Colon,
The defendant’s second contention must be addressed, because, if valid, it would constitute an error which if raised upon appeal would require a reversal as a matter of law. A brief recitation of some of the facts is necessary for proper analysis of the claimed error.
In the early morning hours of February 6, 1986, the defendant fatally stabbed the deceased with a butcher knife. It developеd that at the time of the killing and for some time prior thereto, the defendant was suffering from a mental disease, as a result of which she entertained the delusion that she was "Jezreel, Lord God Woman”. A psychiatrist, testifying
The defendant made two out-of-court statements, which were admitted into evidence, in which she stated that she knew that her stabbing the decedent would kill him and that was precisely what she intеnded. She further stated she knew that what she was doing was against the law and that she would go to jail as the result. Additionally, the defendant testified at the trial that she knew that she was killing the defendant when she stabbed him, she knew that what she did was against society’s lаws, and she was aware of the constraints of the Fifth Commandment, but that she went by her own rules.
Prior to closing arguments the court met with counsel and the defendant and advised them of the proposed jury charge, which did not include instructions concerning the principles of the affirmative defense of mental disease or defect. At that conference defense counsel requested that the court instruct the jury in that regard, to which his client immediately protested. As the result of defendant’s assertion that she did not want the jury charged as to the insanity defense, the court declined to do so. Defense counsel excepted to that ruling and seeks to set the verdict aside on the ground that the court was in error.
The first issue tо be addressed is the effect of the defendant’s decision that the court not instruct the jury as requested by her attorney. Although counsel has the power to make decisions regarding trial strategy, the client retains ultimate authority over the сonduct of litigation (Code of Professional Responsibility, EC 7-7; Prate v Freedman, 583 F2d 42). "Once a client is fully informed as to the legal consequences of a waiver of a defense that may be available, the decision whether to forego a legal defense is ultimately for the
In this case, defense counsel satisfactorily performed his duty of keeping the defendant informed as to the legal consequences of her decision. The issue, however, is whether the defendant had sufficient intelligence and judgment, during all stages of the proceeding, to listen to the advice of counsel, and based uрon that advice, appreciate that one course of conduct may have been more beneficial to her than another. This is not to be confused with the issue of competence. The court expressly found defendant to be competent at a pretrial hearing held on June 25, 1986. While the question of defendant’s competency can be raised again by any party or by the court prior to final judgment when the presence of certain warning signals warrant it (People v Picozzi,
The question regarding defendant’s capacity to listen to and to appreciate counsel’s advice, however, remains.
Assuming, arguendo, that the court should have considered a charge of mental disease or defect in the face of the defendant’s protestation, the issue then becomes whether such a charge was warranted on the facts of this case.
The defense of mental disease or defect must be established by the defendant by a preponderance of evidence (Penal Law §§ 40.15, 25.00). Therefore, in order for the defendant to be entitled to the charge of mental disease or defect, there must exist a reasonable viеw of the evidence upon which might be predicated the conclusion that at the time of her conduct, as a result of mental disease or defect, she lacked substantial capacity to know or appreciate the nature and consequences of such conduct or that such conduct was wrong (cf. People v Moye,
Despite her mental illness, the defendant purchased four knivеs for the avowed purpose of killing Robert Hill. She tested each of the knives to determine which was the most appropriate for that purpose. She went to decedent’s bedroom and stabbed him four times while he lay defenselеss in his sleep. She acknowledged that she knew what she did was against society’s law and that she would go to jail as the result, all of which indicates that she knew and appreciated the consequences and wrongness of her conduct. Defendant did testify that as "Lord God Woman” she is guided by her own rules. Nevertheless, even if thé defendant genuinely feels compelled to follow her own, as opposed to society’s rules, this does not mean that, as a result of mental disease оr defect, she lacked substantial capacity to know or appreciate that such conduct was wrong. As observed by the Court of Appeals: " 'When it speaks of the defendant’s ignorance of [her] act as wrong, the law does not mean to permit the individual to be [her] own judge of what is right or wrong. It says that the individual has sufficient knowledge that an act was wrong if its perpetrator knows that [her] act is against the law and against the commonly accepted standards of morality and conduct which prevail in the community of mankind. [She] must know that [her] act was contrary to the laws of God and man’ ” (People v Wood,
Given the above, it seems quite clear that the defendant was legally sane at the time of the killing. Coupled with the testimony of the psychiatrists, that conclusion becomes inescapable. Defendant’s psychiatrist testified that he was not claiming that she was insane. The People’s psychiatrist testified, quite convincingly, that she was sane at the time of the killing. Frоm all of the above it appears clear that the defendant knew and appreciated the nature and consequences of her conduct and that such conduct was wrong. A contrary finding could not be reached on any fair interpretation of the evidence when viewed in the light most favorable to the defendant (People v Farnsworth,
Notes
While this factor is but one of many to be considered on the issue of competence, it strikes the court that certain defendants, e.g., ones suffering from schizophrenia with delusions of grandiosity or ones with a substantial cоgnitive deficit, may be legally competent and still not possess sufficient intelligence or sophistication to appreciate the many nuances of the criminal law and their pragmatic application to a particular case.