Opinion
April 10, 1989
Appeal from the County Court, Suffolk County (Seidell, J.).
Ordered that the judgment is affirmed.
The court properly found that the defendant's competency to stand trial was established by a preponderance of the evidence (see, People v. Young, 116 A.D.2d 680, lv denied 67 N.Y.2d 953). Although a psychologist found that the defendant was not competent, that fact is not dispositive of the issue as it was the opinion of 3 psychiatrists, including 1 retained by the defendant, that he was competent (see, People v. Owens, 111 A.D.2d 274, lv denied 66 N.Y.2d 617).
We also find that the defendant failed to prove by a preponderance of the evidence that he shot his wife while acting under the influence of extreme emotional disturbance (see, People v. Casassa, 49 N.Y.2d 668).
The denial of the defendant's motion to suppress certain statements made to law enforcement authorities was proper. The defendant's testimony that he told the police that he had counsel and would rather not speak, directly contradicted the testimony of the police and presented a question of credibility which was resolved against the defendant by the trier of fact. As this determination is supported by the record, it will not be disturbed on appeal (see, People v. Garafolo, 44 A.D.2d 86, 88).
We note that the sentence imposed was a proper exercise of discretion and was not excessive (see, People v. Suitte, 90 A.D.2d 80).
We have examined the defendant's remaining contentions and find them to be without merit. Kunzeman, J.P., Kooper, Sullivan and Balletta, JJ., concur.