State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 5, 2015 103759 

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________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

BLAZEJ J. KOT,

Appellant.

________________________________

Calendar Date: January 12, 2015

Before: McCarthy, J.P., Lynch, Devine and Clark, JJ.

__________

Margaret McCarthy, Ithaca, for appellant.

Gwen Wilkinson, District Attorney, Ithaca (Andrew J.

Bonavia of counsel), for respondent.

__________

McCarthy, J.P.

Appeals (1) from a judgment of the County Court of Tompkins

County (Rowley, J.), rendered June 16, 2010, upon a verdict

convicting defendant of the crimes of murder in the second

degree, arson in the third degree and tampering with physical

evidence, (2) by permission, from an order of said court, entered

August 21, 2013, which partially denied defendant's motion

pursuant to, among other things, CPL 440.10 to vacate the

judgment of conviction, without a hearing, and (3) from a

judgment of said court, rendered October 18, 2013, which

resentenced defendant. 
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Defendant was indicted in June 2009 on charges of murder in

the second degree, arson in the third degree and tampering with

physical evidence after he murdered his wife while they were out

jogging by cutting her throat with a box cutter and then returned

to their apartment and attempted to set it on fire. Only weeks

before, defendant and the victim had returned from a honeymoon

trip to Costa Rica. During the evening following the murder, the

police found defendant alone in his car in a parking lot of a

state park. When the officer approached the car, he observed

dried blood on defendant's sleeve and asked him to lower his

window. Defendant instead put the car into gear and led police

on a high-speed chase that ended when he drove off the road. 

When the police got to the car, defendant was unconscious and

wearing only a bathrobe; his neck was lacerated and he had a

bloodied knife in his hand. 

At the jury trial in April 2010, County Court instructed

the jury to consider the affirmative defense of extreme emotional

disturbance (see Penal Law § 125.25 [1] [a]). Ultimately, the

jury convicted defendant on all three counts and the court

sentenced him to a prison term of 25 years to life on the seconddegree murder conviction and to lesser, concurrent terms on the

arson and tampering with physical evidence convictions. 

Defendant thereafter moved pursuant to CPL 440.10 and 440.20 to

vacate the judgment of conviction and the sentence. Without

holding a hearing, County Court denied that part of the motion to

vacate the judgment of conviction pursuant to CPL 440.10. 

Finding that defendant received an unauthorized sentence on the

arson and tampering convictions, however, the court determined

that he should be resentenced on said convictions, which it did

in a separate judgment. Defendant now appeals from the judgment

of conviction, the judgment resentencing him and, with the

permission of this Court, from the order partially denying his

CPL article 440 motion. 

Initially, we reject defendant's claim that County Court

erred by failing to order, sua sponte, a competency hearing

pursuant to CPL 730.30. Generally, a defendant is presumed to be

competent to stand trial (see People v Tortorici, 92 NY2d 757,
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765 [1999], cert denied 528 US 834 [1999]). If, during a

criminal action, the court "has a reasonable ground for believing

that a defendant is in such a state of [mental disease or defect]

that he [or she] is incapable of understanding the charge,

indictment or proceedings or of making his [or her] defense, it

is the duty of the court to direct him [or her] to be examined in

these respects" (id. [internal quotation marks and citations

omitted]; see CPL 730.10 [1]; People v Yu-Jen Chang, 92 AD3d

1132, 1134 [2012]). On this appeal, we consider whether the

court abused its discretion (see People v Tortorici, 92 NY2d at

766; People v Duffy, 119 AD3d 1231, 1233 [2014], lv denied 24

NY3d 1043 [2014]). 

Even if, as defendant now claims, the full extent of his

illness was not known because he did not receive adequate medical

care until after the trial, a history of mental illness and/or

suicide attempts does not compel a finding of incompetency or

necessarily require a competency hearing (see People v Duffy, 119

AD3d at 1233; People v Tafari, 90 AD3d 1341, 1342-1343 [2011], lv

denied 19 NY3d 977 [2012]; People v Andrews, 78 AD3d 1229, 1232

[2010], lv denied 16 NY3d 827 [2011] [although the defendant held

delusional ideas he was competent to stand trial]; People v

Clickner, 128 AD2d 917, 918 [1987], lv denied 70 NY2d 644 [1987]

[the trial court did not err in declining to order competency

evaluation when the defendant attempted suicide while awaiting

sentencing]). Although defendant claims that County Court did

not make sufficient inquiry with regard to his competency, it is

not disputed that the court was able to observe defendant's

behavior and demeanor in the courtroom throughout the trial, as

well as in video excerpts from his discussions with Rory

Houghtalen, the forensic psychiatrist retained to examine him

(see People v Bolarinwa, 258 AD2d 827, 831 [1999], lv denied 93

NY2d 1014 [1999]). During the trial, Houghtalen did not opine

that defendant was incompetent, and defense counsel at no point

requested a competency hearing. Notably, during a sidebar,

defendant himself requested to be excused from the courtroom as

the People were about to introduce photographs of the victim's

body, and he made statements at sentencing expressing regret over

killing his wife. Based on the available information, we cannot
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say that County Court abused its discretion in not, sua sponte,

ordering a competency hearing (see People v Duffy, 119 AD3d at

1233; People v Yu-Jen Chang, 92 AD3d at 1135). For the same

reasons, we find without merit defendant's contention that he was

deprived of the effective assistance of counsel due to counsel's

failure to request a competency hearing or to present an insanity

defense (see People v Hennessey, 111 AD3d 1166, 1169 [2013]). 

County Court did not err in denying, without a hearing,

defendant's CPL 440.10 motion to vacate the judgment of

conviction based on Houghtalen's revised evaluation of what he

believes defendant's mental capacity was at the time of the

trial. Defendant argues that he was entitled to a hearing on his

CPL 440.10 motion as to whether he was capable of understanding

and participating in his trial (see CPL 440.10 [1] [e]) and as to

whether purportedly newly discovered evidence concerning his

mental health would have, if received at trial, resulted in a

verdict more favorable to him (see CPL 440.10 [1] [g]). On a

motion to vacate, a hearing is required if the submissions "show

that the nonrecord facts sought to be established are material

and would entitle [the defendant] to relief" (People v

Satterfield, 66 NY2d 796, 799 [1985]; see CPL 440.30 [5]; People

v Hennessey, 111 AD3d at 1168-1169). 

The record here contains numerous facts undercutting any

assertion that defendant, at the time of his trial and the

pretrial proceedings, was suffering from any mental condition

that left him "incapable of understanding or participating in

such proceedings" (CPL 440.10 [1] [e]). Up to and throughout the

trial, defendant continuously exhibited an awareness of the

nuances of the criminal justice process, including, as is

pertinent to this discussion, the crucial role that Houghtalen,

as his forensic psychiatric expert, would play in his defense. 

Defendant's forthright disclosures to Houghtalen concerning the

dysfunction he observed in his family during his youth, and the

mental health symptoms he reportedly experienced in the days and

months leading up to his crime, support the conclusion that any

psychiatric conditions from which he might have been suffering

over the course of the instant criminal action did not prevent
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him from recognizing that providing Houghtalen with details of

his mental health history would bolster his defense, nor from

actually supplying such information to Houghtalen. 

County Court was aware from the outset of its oversight of

this case that defendant's mental health would be the focus of

the litigation (compare People v Hennessey, 111 AD3d at 1167-

1168). The court had ample opportunity to observe defendant's

demeanor in court and in his videotaped interviews with

Houghtalen, and the court received "extensive written

submissions" from Houghtalen and defendant in support of

defendant's postconviction claim pursuant to CPL 440.10 (1) (e)

(People v Sheppard, 107 AD3d 1237, 1239 [2013], lv denied 22 NY3d

1203 [2014]). Therefore, County Court did not err in rejecting

without a hearing (see CPL 440.30 [1] [a]) so much of defendant's

CPL 440.10 motion as suggested that, at the time of these

proceedings, defendant's judgment was so clouded by mental

disease or defect that he was unable or unwilling to play any

part in defending against the charges (compare People v

Hennessey, 111 AD3d at 1167-1169; People v Fixter, 79 AD2d 861,

861 [1980]). Even accepting as true Houghtalen's determination

that defendant, at the time of his trial, believed his attorney

and Houghtalen to be part of a conspiracy against him, there is

no proof that such delusion rendered defendant unable to

appreciate the nature of these proceedings, or caused him to

refuse to participate in them.

As for defendant's claim under CPL 440.10 (1) (g), even if

it can be said that Houghtalen's recent reevaluation of

defendant's mental health history amounts to newly discovered

evidence, it cannot be said that such evidence "could not have

been produced . . . at the trial . . . with due diligence" (CPL

440.10 [1] [g]). Defendant informed Houghtalen during a midtrial

interview that he believed that Houghtalen and his trial counsel

were part of a conspiracy against him. No reasonable explanation

has been provided for the failure to reassess defendant's mental

health – or the defense's trial strategy – in light of this

disclosure. This is not a situation in which, for example, the

People ignored their obligation to thoroughly investigate the
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crime allegedly committed by a defendant whose trial attorney

lacked the resources necessary to mount a viable defense (compare

People v Hildenbrandt, 125 AD2d 819, 821-822 [1986], lv denied 69

NY2d 881 [1987]). Rather, the findings of Houghtalen's

reevaluation are "not 'newly discovered' within the meaning of

CPL 440.10 (1) (g) since, with the exercise of due diligence,

[they] could have been discovered before [the conclusion of the]

trial" (People v Chaney, 298 AD2d 617, 620 [2002], lv dismissed

and denied 100 NY2d 537 [2003]). 

Turning to the question of whether the findings of

Houghtalen's reevaluation were, as a substantive matter, "of such

character as to create a probability that[,] had such evidence

been received at the trial[,] the verdict would have been more

favorable to [] defendant" (CPL 440.10 [1] [g]), County Court did

not abuse its discretion in concluding that no hearing was

necessary to assess the probative value of Houghtalen's recent

findings and their likely impact on the verdict (compare People v

Page, 115 AD3d 1067, 1069 [2014], lv denied 23 NY3d 966 [2014]). 

Because defendant's CPL 440.10 motion was supported by affidavits

from defendant, his trial counsel and Houghtalen, County Court

was not faced with a situation in which it had been presented

with potentially exculpatory statements by individuals whose

credibility it had not had the opportunity to assess in person

during the trial (compare id. at 1067-1069; People v

Hildenbrandt, 125 AD2d at 821-822). In addition, County Court

observed the jury in this case as it heard Houghtalen testify in

support of the defense's theory of extreme emotional disturbance

pursuant to Penal Law § 125.25 (1) (a), and heard the People's

expert psychiatrist present a theory of malingering and

suggestibility. Ultimately, the jury chose to reject the

defense's extreme emotional disturbance defense. Thus, it cannot

be said that there is a "reasonable probability" (People v

McKnight, 306 AD2d 546, 548 [2003], lvs denied 100 NY2d 593, 596,

599 [2003]) that the jury, had it heard Houghtalen testify in

support of a theory of insanity under Penal Law § 40.15, would

have instead rejected the People's expert's theory of malingering

and suggestibility, and returned a verdict more favorable to

defendant. As such, County Court did not abuse its discretion in
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determining that it did not need to hold a hearing to explore

what effect, if any, the findings of Houghtalen's reevaluation

would have had upon the verdict had the jury been privy to them. 

Defendant's myriad claims of prosecutorial misconduct

during the People's opening and closings arguments were not

preserved for our review (see People v Studstill, 27 AD3d 833,

835 [2006], lv denied 6 NY3d 898 [2006]). Defendant's remaining

arguments, including his claim that the People elicited

inadmissible testimony from certain expert witnesses, have been

considered and are without merit.

Devine and Clark, JJ., concur.

Lynch, J. (concurring in part and dissenting in part).

I respectfully dissent only from that part of the

majority's conclusion that County Court properly denied

defendant's CPL 440.10 motion to vacate the judgment of

conviction without a hearing.

On a motion to vacate, a hearing is required if the

submissions "show that the nonrecord facts sought to be

established are material and would entitle [the defendant] to

relief" (People v Satterfield, 66 NY2d 796, 799 [1985]; see CPL

440.30 [5]; People v Hennessey, 111 AD3d 1166, 1168-1169 [2013]). 

Here, in addressing the motion, County Court determined that its

review was limited to facts known to the court at the time of

trial, and it noted that neither Rory Houghtalen nor defendant's

counsel requested a competency hearing. The CPL article 440

review, however, is not so limited and must account for any new,

material information outside the trial record. 

Here, defendant's submissions reveal that, in July 2010,

after sentencing and while in state custody, defendant again

attempted suicide and consequently was involuntarily admitted to

a psychiatric center, where he received mental health treatment

until he was discharged in August 2011. While Houghtalen
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initially had determined that defendant was competent to stand

trial, he now concludes in an affidavit that, upon review of

defendant's medical records – including those generated while he

was treated at the psychiatric center – and after meeting with

defendant for an unspecified period of time at the state facility

in October 2012, County Court should have evaluated defendant to

determine whether he was competent to stand trial. Houghtalen

explains that, as a result of the treatment received, defendant

is now able to fully explain the extent and duration of his

psychosis, providing information that he did not disclose prior

to trial. Based on what he has learned posttrial, Houghtalen

believes that defendant, a "quietly psychotic" individual, would

have qualified for an insanity defense (see Penal Law § 40.15). 

According to Houghtalen, defendant was "morbidly depressed 

and . . . quite paranoid" during the trial, and his condition

interfered with his ability to participate in his defense

because, principally, he believed that both his attorney and

Houghtalen were part of a larger conspiracy against him. 

Houghtalen candidly acknowledged that defendant shared this

concern during their last interview while the trial was underway,

but explains that he did not appreciate the extent of defendant's

mental illness. Correspondingly, defendant explains in an

affidavit that it was not until he received treatment, and was

diagnosed and given antipsychotic medication, that he was

"relieved of much of the paranoid and delusional thinking that 

[he] struggled with every day of [his] life, . . . since [he] was

eight to ten years old." I note that, although defendant

received a standard mental health assessment while in custody

before trial, he did not receive any treatment until after his

second suicide attempt. 

I am mindful that Houghtalen initially conducted a thorough

records review, interviewed defendant at length prior to trial

and formulated an opinion to support a defense of extreme

emotional disturbance, while ruling out an insanity defense. As

such, if this were a matter of an expert witness merely secondguessing himself after a conviction, I would see little, if any,

merit to the application. The operative facts here, however, are

more compelling. In my view, Houghtalen's affidavit, together
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with the supporting affidavit of trial counsel and defendant's

own affidavit, were sufficient to warrant a hearing as to whether

defendant was competent to participate at his trial, and as to

whether such proof creates a probability that the verdict would

have been more favorable to defendant (see CPL 440.10 [1] [e],

[g]; 440.30 [5]; People v Hennessey, 111 AD3d at 1168-1169;

People v Nau, 21 AD3d 568, 568-569 [2005], lv denied 5 NY3d 855

[2005]; People v Fixter, 79 AD2d 861, 861 [1980]). 

ORDERED that the judgments and order are affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court