Opinion
No. KA 05-01444.
November 9, 2007.
Appeal from a judgment of the Monroe County Court (Frank E Geraci, Jr., J.), rendered June 1, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (PATRICK H. FIERRO OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Hurlbutt, Smith, Fahey and Pine, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25). Contrary to defendant's contention, County Court properly refused to charge the affirmative defense of extreme emotional disturbance. "[Defendant's] behavior immediately before and after the killing was inconsistent with the loss of control associated with the affirmative defense" ( People v Murden, 190 AD2d 822, 822, lv denied 81 NY2d 1017; see People v Roche, 98 NY2d 70, 76-77; People v Barber, 2 AD3d 1290, 1292, lv denied 2 NY3d 761; People v Zamora, 309 AD2d 957, lv denied 1 NY3d 583), nor was there otherwise the requisite "sufficient credible evidence . . . presented for the jury to find, by a preponderance of the evidence, that the elements of the affirmative defense [had] been established" ( People v White, 79 NY2d 900, 902-903). We reject the contention of defendant that he was deprived of his right to counsel when the police refused to allow him to contact his father before interviewing him ( see People v Fuschino, 59 NY2d 91, 100; People v Martin, 39 AD3d 1213, lv denied 9 NY3d 878), and we conclude that the record of the suppression hearing supports the court's determination that defendant's statements to the police were voluntarily made ( see People v Mateo, 2 NY3d 383, 413-414, cert denied 542 US 946; People v Coleman, 306 AD2d 941, lv denied 1 NY3d 596). Also contrary to the contention of defendant, the court properly refused to allow his five-year-old sister to testify on his behalf in view of the ambiguities in her statements concerning her understanding of the difference between the truth and a lie. "`The resolution of the issue of witness competency is exclusively the responsibility of the trial court, subject to limited appellate review,' and should not be disturbed absent a clear abuse of discretion" ( People v Rising, 289 AD2d 1069, 1070, lv denied 97 NY2d 732, quoting People v Parks, 41 NY2d 36, 46). Here, there was no clear abuse of discretion. Finally, we conclude that defendant received meaningful representation ( see generally People v Baldi, 54 NY2d 137, 147), and the sentence is not unduly harsh or severe.