PEOPLE v. HARDING (2018)

Judgment, Supreme Court, Bronx County (George Villegas, J.), rendered May 19, 2014, convicting defendant, after a nonjury trial, of murder in the second degree (two counts) and criminal possession of a weapon in the fourth degree, and sentencing him to an aggregate term of 50 years to life, unanimously affirmed.

Defense counsel did not render ineffective assistance when he declined to assert the affirmative defense of mental disease or defect in the face of defendant's opposition to presenting that defense, and the court correctly agreed that this decision was for defendant, not counsel, to make.  A defendant retains ultimate authority to decide whether to assert an insanity defense, like the closely related defense of extreme emotional disturbance (see People v. Petrovich, 87 N.Y.2d 961, 641 N.Y.S.2d 592, 664 N.E.2d 503 [1996]; People v. Thomas, 247 A.D.2d 284, 669 N.Y.S.2d 38 [1st Dept. 1998], lv denied 92 N.Y.2d 906, 680 N.Y.S.2d 71, 702 N.E.2d 856 [1998].

The court properly denied defendant's suppression motion.  The record supports the court's finding that defendant was not in custody when he made statements to the police (see People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969], cert denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 [1970];  People v. Dillhunt, 41 A.D.3d 216, 839 N.Y.S.2d 18 [1st Dept. 2007], lv denied10 N.Y.3d 764, 854 N.Y.S.2d 325, 883 N.E.2d 1260 [2008] ).  In any event, defendant's waiver of his Miranda rights was knowing, intelligent and voluntary, despite his mental infirmities (see People v. Williams, 62 N.Y.2d 285, 288–289, 476 N.Y.S.2d 788, 465 N.E.2d 327 [1984] ).