State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 24, 2014 105511 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

LOUIS M. DUFFY,

Appellant.

________________________________

Calendar Date: June 2, 2014

Before: Stein, J.P., McCarthy, Garry, Lynch and Devine, JJ.

__________

Donna C. Chin, Ithaca, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (John R.

Thweatt of counsel), for respondent.

__________

McCarthy, J.

Appeal from a judgment of the County Court of Chemung

County (Buckley, J.), rendered January 12, 2012, upon a verdict

convicting defendant of the crimes of murder in the second degree

and criminal possession of a weapon in the second degree (two

counts).

At approximately 1:15 a.m., defendant went to a nightclub

that catered to the gay community and was managed by the victim. 

Defendant had agreed to perform construction work for the victim

later that day and to spend the night at the victim's house

before working. Although defendant knew that the victim was gay

and had reason to expect that the victim would make sexual

advances toward him, he informed his friends that he would kill

the victim if the victim touched him. Shortly after arriving at
-2- 105511 

the nightclub, defendant and the victim walked across the street

to the victim's residence where the two had consensual sex in a

bedroom. At approximately 3:20 a.m., defendant shot the victim

in the head and ran out of the house immediately afterward.

When police arrived, they found the victim lying on his

stomach in bed, under covers, bleeding from a gunshot wound to

his left temple. The victim died shortly thereafter. Defendant

was taken into custody and gave a written statement indicating

that he shot the victim because, when defendant tried to leave

the victim's house, the victim told him that their sexual

relationship was going to continue and then grabbed him by the

throat. Defendant was thereafter charged in an indictment with

murder in the second degree and two counts of criminal possession

of a weapon in the second degree. At trial, defendant asserted

the affirmative defense of extreme emotional disturbance (see

Penal Law § 125.25 [1] [a]), presenting testimony that his

interactions with the victim had caused a "flashback" to his

childhood sexual abuse at the hands of his step-grandfather. 

Nevertheless, the jury convicted defendant as charged, and County

Court sentenced him to an aggregate prison term of 25 years to

life. Defendant appeals.

Initially, defendant argues that County Court erred in

failing to order, sua sponte, a competency hearing pursuant to

CPL 730.30. "[A] defendant is presumed to be competent, and

. . . is not entitled, as a matter of right, to have the question

of his [or her] capacity to stand trial passed upon before the

commencement of the trial, if the court is satisfied from the

available information that there is no proper basis for

questioning the defendant's sanity" (People v Tortorici, 92 NY2d

757, 765 [1999], cert denied 528 US 834 [1999] [internal

quotation marks and citations omitted]; see People v Morgan, 87

NY2d 878, 880 [1995]; People v Yu-Jen Chang, 92 AD3d 1132, 1134

[2012]). A history of mental illness and drug abuse "does not in

itself call into question [a] defendant's competence to stand

trial" (People v Tortorici, 92 NY2d at 765); rather, "a [t]rial

[j]udge determining whether a competency hearing is necessary may

also consider expert medical proof . . ., coupled with all other

evidence and his [or her] own observations of the defendant" (id.

at 766 [internal quotations marks and citation omitted]; see
-3- 105511 

People v Morgan, 87 NY2d at 880-881; People v Poquee, 9 AD3d 781,

783 [2004], lv denied 3 NY3d 741 [2004]). In reviewing whether a

trial court erred in not ordering a competency hearing, the

critical question is whether the court abused its discretion (see

People v Tortorici, 92 NY2d at 766; People v Kulakov, 72 AD3d

1271, 1272 [2010], lv denied 15 NY3d 775 [2010], lv dismissed 16

NY3d 896 [2011]).

Notwithstanding defendant's psychiatric diagnoses, drug use

and emotional turmoil shortly after his arrest, defendant's own

expert psychologist concluded that defendant was sufficiently

competent to participate in his own defense. In addition, County

Court had the opportunity to observe defendant during his

numerous pretrial appearances and lengthy testimony. Defendant

actively participated in his defense, repeatedly expressed his

understanding of the progression of the case, and was clear and

rational during his lengthy testimony, explaining his history and

emotional state at the time of the incident and during the months

and years leading up to the shooting. Under these circumstances,

a competency hearing was not required, especially where no

hearing was requested, and County Court did not abuse its

discretion (see People v Tortorici, 92 NY2d at 767; People v YuJen Chang, 92 AD3d at 1135; People v Kulakov, 72 AD3d at 1272-

1273; People v Poquee, 9 AD3d at 783).

Defendant next argues that the jury should have been given

an intoxication charge because his alcohol, marihuana and cocaine

use on the night of the shooting was relevant to negate an

element of murder in the second degree, i.e., intent (see Penal

Law §§ 15.25, 125.25 [1]). While defendant concedes that the

issue is not preserved for this Court's review, he argues that

there was no strategic reason not to request the charge and,

thus, he was denied the effective assistance of counsel. In the

alternative, he asserts that County Court should have given the

charge sua sponte, and urges this Court to reverse in the

interest of justice.

Generally, "[a] charge on intoxication should be given if

there is sufficient evidence of intoxication in the record for a

reasonable person to entertain a doubt as to the element of

intent on that basis" (People v Rodriguez, 76 NY2d 918, 920
-4- 105511 

[1990] [internal quotation marks and citation omitted]; see

People v Sirico, 17 NY3d 744, 745 [2011]; People v Lynch, 92 AD3d

805, 805 [2012], lv denied 18 NY3d 995 [2012]). Nevertheless,

"[a]lthough a relatively low threshold exists to demonstrate

entitlement to an intoxication charge, bare assertions by a

defendant concerning his [or her] intoxication, standing alone,

are insufficient" (People v Sirico, 17 NY3d at 745 [internal

quotation marks and citation omitted]). Moreover, to succeed on

a claim of ineffective assistance of counsel, "it is incumbent on

defendant to demonstrate the absence of strategic or other

legitimate explanations for counsel's alleged shortcomings"

(People v Benevento, 91 NY2d 708, 712 [1998] [internal quotation

marks and citation omitted]; see People v Underdue, 89 AD3d 1132,

1134 [2011], lv denied 19 NY3d 969 [2012]).

Assuming that testimony from defendant's friend – that

defendant was moderately drunk when he left to meet the victim –

was sufficient, along with defendant's testimony, to warrant an

intoxication charge, counsel was not necessarily ineffective for

failing to request such a charge. Defendant bore the burden of

proof on his affirmative defense, requiring him to demonstrate

that he was influenced by an extreme emotional disturbance at the

time of the shooting and that there was a reasonable explanation

or excuse for that disturbance (see People v Roche, 98 NY2d 70,

75-76 [2002]; People v Wells, 101 AD3d 1250, 1252 [2012], lv

denied 20 NY3d 1066 [2013]). Defendant and the victim were alone

at the time of the shooting, so only defendant could describe the

circumstances and his mental state at that time. While a request

for an intoxication instruction is not legally inconsistent with

an extreme emotional disturbance defense (see People v Knights,

109 AD2d 910, 911 [1985]), counsel could have strategically

determined that such a request would have undermined his

affirmative defense in this particular case. An intoxication

instruction could reasonably be seen as inconsistent with

defendant's assertion that his "head [was] clear enough to have

coherent thoughts" in the moments before the victim's alleged

attack, thereby undermining his credibility and, as a result, his

extreme emotional disturbance defense. Regardless of whether an

intoxication charge would have been proper, defendant has not

demonstrated the "absence of strategic or other legitimate

explanations for counsel's allegedly deficient conduct" (People v
-5- 105511 

Hammond, 107 AD3d 1156, 1156 [2013] [internal quotation marks and

citations omitted]). Accordingly, defendant's claims that he

received the ineffective assistance of counsel and that reversal

is warranted in the interest of justice are lacking in merit.

Defendant's remaining argument, that his sentence was harsh

and excessive, has been considered and rejected.

Stein, J.P., Garry, Lynch and Devine, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court