PEOPLE v. McGRADY (2007)

 Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ).   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 A.D.2d 822, 593 N.Y.S.2d 837, lv. denied 81 N.Y.2d 1017, 600 N.Y.S.2d 205, 616 N.E.2d 862;  see People v. Roche, 98 N.Y.2d 70, 76-77, 745 N.Y.S.2d 775, 772 N.E.2d 1133;  People v. Barber, 2 A.D.3d 1290, 1292, 770 N.Y.S.2d 537, lv. denied 2 N.Y.3d 761, 778 N.Y.S.2d 779, 811 N.E.2d 41;  People v. Zamora, 309 A.D.2d 957, 766 N.Y.S.2d 850, lv. denied 1 N.Y.3d 583, 775 N.Y.S.2d 798, 807 N.E.2d 912), 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 N.Y.2d 900, 902-903, 581 N.Y.S.2d 651, 590 N.E.2d 236).   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 N.Y.2d 91, 100, 463 N.Y.S.2d 394, 450 N.E.2d 200;  People v. Martin, 39 A.D.3d 1213, 833 N.Y.S.2d 805, lv. denied 9 N.Y.3d 878, 842 N.Y.S.2d 790, 874 N.E.2d 757), 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 N.Y.3d 383, 413-414, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Coleman, 306 A.D.2d 941, 760 N.Y.S.2d 797, lv. denied 1 N.Y.3d 596, 776 N.Y.S.2d 228, 808 N.E.2d 364).   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 A.D.2d 1069, 1070, 735 N.Y.S.2d 680, lv. denied 97 N.Y.2d 732, 740 N.Y.S.2d 706, 767 N.E.2d 163, quoting People v. Parks, 41 N.Y.2d 36, 46, 390 N.Y.S.2d 848, 359 N.E.2d 358).   Here, there was no clear abuse of discretion.   Finally, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: