State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 24, 2014 105511
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
LOUIS M. DUFFY,
Appellant.
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Calendar Date: June 2, 2014
Before: Stein, J.P., McCarthy, Garry, Lynch and Devine, JJ.
__________
Donna C. Chin, Ithaca, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John R.
Thweatt of counsel), for respondent.
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McCarthy, J.
Appeal from a judgment of the County Court of Chemung
County (Buckley, J.), rendered January 12, 2012, upon a verdict
convicting defendant of the crimes of murder in the second degree
and criminal possession of a weapon in the second degree (two
counts).
At approximately 1:15 a.m., defendant went to a nightclub
that catered to the gay community and was managed by the victim.
Defendant had agreed to perform construction work for the victim
later that day and to spend the night at the victim's house
before working. Although defendant knew that the victim was gay
and had reason to expect that the victim would make sexual
advances toward him, he informed his friends that he would kill
the victim if the victim touched him. Shortly after arriving at
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the nightclub, defendant and the victim walked across the street
to the victim's residence where the two had consensual sex in a
bedroom. At approximately 3:20 a.m., defendant shot the victim
in the head and ran out of the house immediately afterward.
When police arrived, they found the victim lying on his
stomach in bed, under covers, bleeding from a gunshot wound to
his left temple. The victim died shortly thereafter. Defendant
was taken into custody and gave a written statement indicating
that he shot the victim because, when defendant tried to leave
the victim's house, the victim told him that their sexual
relationship was going to continue and then grabbed him by the
throat. Defendant was thereafter charged in an indictment with
murder in the second degree and two counts of criminal possession
of a weapon in the second degree. At trial, defendant asserted
the affirmative defense of extreme emotional disturbance (see
Penal Law § 125.25 [1] [a]), presenting testimony that his
interactions with the victim had caused a "flashback" to his
childhood sexual abuse at the hands of his step-grandfather.
Nevertheless, the jury convicted defendant as charged, and County
Court sentenced him to an aggregate prison term of 25 years to
life. Defendant appeals.
Initially, defendant argues that County Court erred in
failing to order, sua sponte, a competency hearing pursuant to
CPL 730.30. "[A] defendant is presumed to be competent, and
. . . is not entitled, as a matter of right, to have the question
of his [or her] capacity to stand trial passed upon before the
commencement of the trial, if the court is satisfied from the
available information that there is no proper basis for
questioning the defendant's sanity" (People v Tortorici, 92 NY2d
757, 765 [1999], cert denied 528 US 834 [1999] [internal
quotation marks and citations omitted]; see People v Morgan, 87
NY2d 878, 880 [1995]; People v Yu-Jen Chang, 92 AD3d 1132, 1134
[2012]). A history of mental illness and drug abuse "does not in
itself call into question [a] defendant's competence to stand
trial" (People v Tortorici, 92 NY2d at 765); rather, "a [t]rial
[j]udge determining whether a competency hearing is necessary may
also consider expert medical proof . . ., coupled with all other
evidence and his [or her] own observations of the defendant" (id.
at 766 [internal quotations marks and citation omitted]; see
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People v Morgan, 87 NY2d at 880-881; People v Poquee, 9 AD3d 781,
783 [2004], lv denied 3 NY3d 741 [2004]). In reviewing whether a
trial court erred in not ordering a competency hearing, the
critical question is whether the court abused its discretion (see
People v Tortorici, 92 NY2d at 766; People v Kulakov, 72 AD3d
1271, 1272 [2010], lv denied 15 NY3d 775 [2010], lv dismissed 16
NY3d 896 [2011]).
Notwithstanding defendant's psychiatric diagnoses, drug use
and emotional turmoil shortly after his arrest, defendant's own
expert psychologist concluded that defendant was sufficiently
competent to participate in his own defense. In addition, County
Court had the opportunity to observe defendant during his
numerous pretrial appearances and lengthy testimony. Defendant
actively participated in his defense, repeatedly expressed his
understanding of the progression of the case, and was clear and
rational during his lengthy testimony, explaining his history and
emotional state at the time of the incident and during the months
and years leading up to the shooting. Under these circumstances,
a competency hearing was not required, especially where no
hearing was requested, and County Court did not abuse its
discretion (see People v Tortorici, 92 NY2d at 767; People v Yu-
Jen Chang, 92 AD3d at 1135; People v Kulakov, 72 AD3d at 1272-
1273; People v Poquee, 9 AD3d at 783).
Defendant next argues that the jury should have been given
an intoxication charge because his alcohol, marihuana and cocaine
use on the night of the shooting was relevant to negate an
element of murder in the second degree, i.e., intent (see Penal
Law §§ 15.25, 125.25 [1]). While defendant concedes that the
issue is not preserved for this Court's review, he argues that
there was no strategic reason not to request the charge and,
thus, he was denied the effective assistance of counsel. In the
alternative, he asserts that County Court should have given the
charge sua sponte, and urges this Court to reverse in the
interest of justice.
Generally, "[a] charge on intoxication should be given if
there is sufficient evidence of intoxication in the record for a
reasonable person to entertain a doubt as to the element of
intent on that basis" (People v Rodriguez, 76 NY2d 918, 920
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[1990] [internal quotation marks and citation omitted]; see
People v Sirico, 17 NY3d 744, 745 [2011]; People v Lynch, 92 AD3d
805, 805 [2012], lv denied 18 NY3d 995 [2012]). Nevertheless,
"[a]lthough a relatively low threshold exists to demonstrate
entitlement to an intoxication charge, bare assertions by a
defendant concerning his [or her] intoxication, standing alone,
are insufficient" (People v Sirico, 17 NY3d at 745 [internal
quotation marks and citation omitted]). Moreover, to succeed on
a claim of ineffective assistance of counsel, "it is incumbent on
defendant to demonstrate the absence of strategic or other
legitimate explanations for counsel's alleged shortcomings"
(People v Benevento, 91 NY2d 708, 712 [1998] [internal quotation
marks and citation omitted]; see People v Underdue, 89 AD3d 1132,
1134 [2011], lv denied 19 NY3d 969 [2012]).
Assuming that testimony from defendant's friend – that
defendant was moderately drunk when he left to meet the victim –
was sufficient, along with defendant's testimony, to warrant an
intoxication charge, counsel was not necessarily ineffective for
failing to request such a charge. Defendant bore the burden of
proof on his affirmative defense, requiring him to demonstrate
that he was influenced by an extreme emotional disturbance at the
time of the shooting and that there was a reasonable explanation
or excuse for that disturbance (see People v Roche, 98 NY2d 70,
75-76 [2002]; People v Wells, 101 AD3d 1250, 1252 [2012], lv
denied 20 NY3d 1066 [2013]). Defendant and the victim were alone
at the time of the shooting, so only defendant could describe the
circumstances and his mental state at that time. While a request
for an intoxication instruction is not legally inconsistent with
an extreme emotional disturbance defense (see People v Knights,
109 AD2d 910, 911 [1985]), counsel could have strategically
determined that such a request would have undermined his
affirmative defense in this particular case. An intoxication
instruction could reasonably be seen as inconsistent with
defendant's assertion that his "head [was] clear enough to have
coherent thoughts" in the moments before the victim's alleged
attack, thereby undermining his credibility and, as a result, his
extreme emotional disturbance defense. Regardless of whether an
intoxication charge would have been proper, defendant has not
demonstrated the "absence of strategic or other legitimate
explanations for counsel's allegedly deficient conduct" (People v
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Hammond, 107 AD3d 1156, 1156 [2013] [internal quotation marks and
citations omitted]). Accordingly, defendant's claims that he
received the ineffective assistance of counsel and that reversal
is warranted in the interest of justice are lacking in merit.
Defendant's remaining argument, that his sentence was harsh
and excessive, has been considered and rejected.
Stein, J.P., Garry, Lynch and Devine, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court