People v. StantonPeople v. Stanton
Calendar Date: October 21, 2021
Before: Garry, P.J., Egan Jr., Aarons, Pritzker and Colangelo, JJ.
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.
OPINION
Garry, P.J.
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
Defendant was charged in a 15-count indictment with various crimes after hе 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, defendаnt 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
“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 NY3d 510, 517 [2011] [citations omitted]). The trial court must аssess 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 AD3d 1099, 1100 [2017]). We cannot conclude that Supreme Court abused its discretion in finding defendant competеnt 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 nоt competent (see People v Phillips, 16 NY3d at 518-519; People v Frazier, 16 NY3d 36, 42 [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 NY3d 127, 140 [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 рhone call from defendant in which he threatened to
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, аmong 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 оffense (see People v Phillips, 256 AD2d 733, 735 [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 AD3d 1378, 1379 [2014] [internal quotation marks, brackets and citations omitted]; People v Anatriello, 161 AD3d 1383, 1387 [2018], lv denied 31 NY3d 1144 [2018]). As it is impоssible 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 (
Defendant argues that he was denied meaningful representation due to trial counsel‘s failure to cross-examine most of the People‘s witnesses and to object to admission of the written statements that his parents signed for the police in November 2016. “To establish a claim of ineffective assistance of counsel, a defendant is required to demonstrate that he or she was not provided meaningful representation and that there is an absеnce of strategic or other legitimate explanations for counsel‘s allegedly deficient conduct” (People v Bowen, 185 AD3d 1219, 1221 [2020] [internal quotation marks and citations omitted]). The People had moved for a Sirois hearing, alleging that defendant had made his parents unavailable to testify by threatening them (see generally People v Geraci, 85 NY2d 359, 363 n 1 [1995]). It appears that counsel — as a way of limiting the revelation of negative information about defendant — may have agreed to allow the parents’ writtеn statements into evidence without objecting or demanding that they be called to testify. Although trial counsel did not cross-examine many of the law enforcement officers or medical providers who testified at trial, counsel did cross-examine the People‘s expert psychologist and a police officer who observed defendant at the time of his arrest, the latter of whom testified that defendant was “hysterical.” Defendant has failed to establish that trial counsel‘s actions were not part of a legitimate trial strategy — i.e., to accept that the assaults occurred but assert that defendant was not guilty because he committed them due to a mental disease or defect (see People v May, 188 AD3d 1309, 1312 [2020], lv denied 36 NY3d 974 [2020]; People v Yarber, 122 AD2d 433, 434 [1986]; compare People v Taylor, 156 AD3d 86, 93 [2017], lv denied 30 NY3d 1120 [2018]). Toward that end, counsel moved pretrial to challenge defendant‘s competency
Defendant further argues that Supreme Court erred in denying his motion to vacate the judgment of conviction. As provided in
As part оf the motion papers, defendant submitted affidavits from each of his parents, signed in July 2019, averring that the contents of their November 2016 statements to the police were false and were written by police officers who threatened them with jail time for lying, and that they were forced to sign those statements before the mother was permitted to be transported to the hospital for medical care. The parents had each signed an affidavit in September 2017 that contained similar information. Considering those earlier affidavits and that the parents attended every court appearance in support of defendant, as well as filed a motion to vacate the orders of protection, defendant has not demonstrated that he could not, with due diligence, have obtained this information from his parents prior to trial. Thus, his parents’ latest affidavits cannot be considеred newly discovered evidence pursuant to
At trial, multiple law enforcement officers testified as to their observations and dealings with the parents on the night of the November 2016 assault. None of those witnesses describеd any
We have reviewed defendant‘s remaining contentions and find them to be without merit.
Egan Jr., Aarons, Pritzker and Colangelo, JJ., concur.
ORDERED that the judgment and order are affirmed.