Citation Numbers: 46 A.D.3d 574, 846 N.Y.S.2d 371
Filed Date: 12/4/2007
Status: Precedential
Modified Date: 1/12/2022
Ordered that the judgment is modified, on the law, by directing that the term of imprisonment imposed on the conviction of criminal possession of a weapon in the third degree shall run concurrently with the term of imprisonment imposed on the conviction of murder in the second degree; as so modified, the judgment is affirmed.
Under the totality of the circumstances, we find no reason to disturb the hearing court’s findings that the defendant who, upon testing, was determined to be mildly retarded, knowingly, voluntarily, and intelligently waived his Miranda rights (see Miranda v Arizona, 384 US 436 [1966]). “An effective waiver of Miranda rights may be made by an accused of subnormal intelligence so long as it is established that he or she understood the immediate meaning of the warnings” (People v Williams, 62 NY2d 285, 287 [1984]; see People v Jones, 41 AD3d 736 [2007], lv denied 9 NY3d 877 [2007]; People v Marx, 305 AD2d 726, 728 [2003]). Since the evidence supported a finding that the defen
In addition, the County Court did not err in precluding expert testimony proffered by the defendant concerning his performance on a battery of tests, known as the “Grisso instrument,” which is intended to assess a person’s ability to knowingly and intelligently waive Miranda rights. The tests have not been generally accepted by New York courts and, assuming that their general acceptance among forensic psychologists has been established for purposes of Frye v United States (293 F 1013 [1923]), the defense failed to establish a foundation for admissibility by demonstrating the “specific reliability of the procedures followed to generate the evidence proffered” by the proposed expert (People v Wesley, 83 NY2d 417, 429 [1994]; see Parker v Mobil Oil Corp., 7 NY3d 434, 447 [2006]; People v Cole, 24 AD3d 1021, 1024 [2005]). Among other things, the validity of the test result was undermined by significant differences between the vocabulary used in the test and that used in the actual warnings given to the defendant, and the defendant’s expert did not administer other tests which normally are considered necessary in order to render a reliable opinion. The expert was permitted to testify concerning, inter alia, the defendant’s mental retardation and studies concerning the effect that condition has on a person’s ability to make an intelligent waiver of Miranda rights.
The jury determination that the defendant failed to prove by a preponderance of the evidence that he was “act[ing] under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” when he stabbed and killed the victim was based on legally sufficient evidence and was not against the weight of the evidence (Penal Law § 125.25 [1] [a]; see People v Roche, 98 NY2d 70, 75 [2002]). “[W]here conflicting expert testimony is presented, the question of whether or not the defendant suffered from a mental disease or defect at the time of the commission of the crime is primarily for the trier of fact, who has the right to accept or reject the opinion of any expert” (People v Bernstein, 255 AD2d 388, 388 [1998]; see People v Ayala, 221 AD2d 457, 458 [1995]). The jury reasonably could have concluded that the defendant’s conduct, including secreting a kitchen knife in a bedroom hours prior to the stabbing, was inconsistent with the loss of control associated with extreme emotional disturbance (see People v Roche, 98 NY2d at 75-76; People v Ayala, 221 AD2d at 457).
However, the County Court erred in ordering that the term of