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judgment of the County Court of Franklin

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State of New York;Supreme Court, Appellate Division;Third Judicial Department;Decided and Entered: June 14, 2012;THE PEOPLE OF THE STATE OF;NEW YORK;Respondent;v;103494;MEMORANDUM AND ORDER;DONALD L. McCRAY;Appellant.;Calendar Date;Before;April 19, 2012;Lahtinen, J.P., Spain, Malone Jr., Kavanagh and;McCarthy, JJ.;Alexander Lesyk, Norwood, for appellant, and appellant;pro se.;Derek P. Champagne, District Attorney, Malone (Glenn;MacNeill of counsel), for respondent.;Malone Jr., J.;Appeal from a judgment of the County Court of Franklin;County (Main Jr., J.), rendered June 7, 2010, upon a verdict;convicting defendant of the crimes of assault on a police officer;and criminal use of a firearm in the second degree.;In August 2008, defendant alerted the Sunmount;Developmental Disabilities Office and Franklin County Emergency;Services entities that he was armed and intended to commit;suicide. Defendant was eventually located by members of various;police agencies, including State Troopers and officers from the;Department of Environmental Conservation, in a canoe on the;Raquette River. After several hours of a stand-off, during which;-2-;103494;defendant maintained aim at himself with a loaded shotgun, a;State Trooper seized an opportunity to grab the gun and, along;with a Department of Environmental Conservation officer;struggled to take it away from defendant. As the three;struggled, the gun discharged, causing massive injuries to the;Trooper's hand. As a result of this incident, defendant was;charged by indictment with assault on a police officer and;criminal use of a firearm in the second degree. Following a;trial, defendant was convicted as charged and subsequently;sentenced to an aggregate prison term of 15 years, with five;years of postrelease supervision. Defendant appeals.;Initially, defendant contends that, although the People;proved at trial that by attempting to take the gun away from him;the Trooper was engaged in a lawful duty pursuant to Mental;Hygiene Law 9.41,1 defendant intentionally attempted to prevent;the Trooper from performing that duty and the Trooper was;seriously injured as a result (see Penal Law 120.08), he was;nevertheless improperly convicted of assault on a police officer;because applying that strict liability statute to arrests made;pursuant to Mental Hygiene Law 9.41 impermissibly criminalizes;a defendant's mental illness. We disagree. Although Penal Law;120.08 imposes strict liability with respect to the serious;injury aspect of the crime, the People are still required to;prove the element of intent with respect to a defendant's action;in preventing a police officer from performing a lawful duty (see;People v Campbell, 72 NY2d 602, 604 [1988]). Inasmuch as;evidence of mental illness may "negate a specific intent;necessary to establish guilt" (People v Almonor, 93 NY2d 571, 580;[1999], see People v Segal, 54 NY2d 58, 66 [1981]), it is;possible for an individual charged with assault on a police;officer to present evidence at trial that he or she was mentally;ill at the time of the incident and, thus, did not possess the;requisite intent to commit the crime. Accordingly, when applied;1;As is relevant here, Mental Hygiene Law 9.41 permits a;State Trooper to "take into custody any person who appears to be;mentally ill and is conducting himself or herself in a manner;which is likely to result in serious harm to the person or;others.;-3-;103494;to detentions made pursuant to Mental Hygiene Law 9.41, Penal;Law 120.08 does not necessarily criminalize a defendant's;mental illness, contrary to defendant's contention.;Next, we are not persuaded that defendant received;ineffective assistance of counsel. Initially, the facts;underlying many of defendant's contentions in this regard;including his claim that counsel failed to discuss the case with;him, failed to investigate the charges and failed to investigate;his mental health history and possible defenses fall outside;the record and, as such, would be more appropriately raised in a;motion pursuant to CPL article 440 (see People v Terry, 85 AD3d;1485, 1488 [2011], lv denied 17 NY3d 862 [2011], People v;Pendelton, 81 AD3d 1037, 1038-1039 [2011], lv denied 16 NY3d 898;[2011], People v Varmette, 70 AD3d 1167, 1172 [2010], lv denied;14 NY3d 845 [2010]). Otherwise, "viewed in totality and as of;the time of the representation," we find that "the evidence, the;law, and the circumstances of [this] particular case... reveal;that the attorney provided meaningful representation" (People v;Baldi, 54 NY2d 137, 147 [1981]).;Nor are we persuaded that the sentence imposed by County;Court was harsh or excessive. Contrary to defendant's;contention, the fact that he was offered a pretrial plea deal;whereby he would have received only five years in prison, as;opposed to the aggregate sentence of 15 years that was imposed;after trial, does not indicate that he was penalized for;exercising his constitutional right to a jury trial (see People v;Souffrant, 93 AD3d 885, 887 [2012]). Considering defendant's;lengthy criminal history, which dates back to 1987 and includes;several prior firearm-related convictions, and the circumstances;of this case, we do not find that County Court abused its;discretion in sentencing defendant to the maximum available;sentence, nor do we find that extraordinary circumstances exist;that warrant a reduction of the sentence in the interest of;justice (see People v Arbas, 85 AD3d 1320 [2011], lv denied 17;NY3d 913 [2011]).;Defendant's remaining contentions were not preserved for;our review.;-4-;103494;Lahtinen, J.P., Spain, Kavanagh and McCarthy, JJ., concur.;ORDERED that the judgment is affirmed.;ENTER;Robert D. Mayberger;Clerk of the Court;Additional Requirements;Min Pages: 2;Max Pages: 4;Level of Detail: Only answer needed

 

Paper#17824 | Written in 18-Jul-2015

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