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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. John JACKSON, Defendant-Appellant.

Decided: March 31, 2009

SAXE, J.P., BUCKLEY, McGUIRE, DeGRASSE, FREEDMAN, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Alexandra Keeling of counsel), for appellant. John Jackson, appellant pro se. Robert M. Morgenthau, District Attorney, New York (David M. Cohn of counsel), for respondent.

Judgment, Supreme Court, New York County (Jeffrey M. Atlas, J. at competency hearing;  Michael J. Obus, J. at jury trial and sentence), rendered January 18, 2006, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

 The hearing court properly found that defendant was competent to stand trial since he was able to “consult with his lawyer with a reasonable degree of rational understanding” and had a “rational as well as factual understanding of the proceedings against him” (People v. Francabandera, 33 N.Y.2d 429, 436, 354 N.Y.S.2d 609, 310 N.E.2d 292 [1974], quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 [1960][internal quotation marks omitted];  see CPL 730.10[1] ).   Although two psychiatric examiners opined that defendant was not competent because he insisted on pursuing a defense of posthypnotic suggestion derived from his delusions, the ultimate determination of whether a defendant is an incapacitated person is a judicial, not a medical, one (see People v. Tortorici, 249 A.D.2d 588, 589, 671 N.Y.S.2d 162 [1998], affd. 92 N.Y.2d 757, 686 N.Y.S.2d 346, 709 N.E.2d 87 [1999], cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 [1999];  CPL 730.30[2] ).   Defendant expressed a rational understanding of the judicial proceedings, the charges against him, the choices available to him, and the consequences of his decision to pursue a hypnosis defense rather than an insanity defense (see People v. Ward, 261 A.D.2d 171, 690 N.Y.S.2d 533 [1999] ).   The court could also rely on defense counsel's view that the defendant was able to rationally assist in his own defense (see Tortorici, 92 N.Y.2d at 766-67, 686 N.Y.S.2d 346, 709 N.E.2d 87).   The record establishes that defendant had a rational basis for deciding to pursue the defense.

 The trial court properly determined that defendant was competent to represent himself, since he had been found competent to stand trial (People v. Reason, 37 N.Y.2d 351, 353-54, 372 N.Y.S.2d 614, 334 N.E.2d 572 [1975];  People v. Schoolfield, 196 A.D.2d 111, 116, 608 N.Y.S.2d 413 [1994], lv. denied 83 N.Y.2d 915, 614 N.Y.S.2d 397, 637 N.E.2d 288 [1994] ).   The court, following a thorough inquiry, properly determined that defendant made a knowing and voluntary waiver of the right to counsel (see People v. Smith, 92 N.Y.2d 516, 683 N.Y.S.2d 164, 705 N.E.2d 1205 [1999] ).

 The trial court did not err in failing to order a further psychiatric examination or competency hearing, since there was no change in defendant's functioning (see People v. Morgan, 87 N.Y.2d 878, 638 N.Y.S.2d 942, 662 N.E.2d 260 [1995] ).   Defendant's legal advisor raised no concern about defendant's continued competence, and the court was able to interact with defendant and observe his participation in the case (see People v. Snyder, 29 A.D.3d 310, 813 N.Y.S.2d 433 [2006], lv. denied, 7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809 [2006] ).

 Defendant's challenges to the prosecutor's summation are unpreserved, and we decline to review them in the interest of justice.   As an alternative holding, we also reject them on the merits.   The challenged remarks did not misstate the applicable law and were fair comment on the evidence (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ).

We perceive no basis for reducing the sentence.

We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.