        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

407
KA 15-00129
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES D. MINCKLER, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (COURTNEY E. HAVILAND OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (James M.
Metcalf, A.J.), rendered March 7, 2014. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, a new trial is granted, and the
matter is remitted to Oswego County Court for further proceedings in
accordance with the following memorandum: Defendant appeals from a
judgment convicting him, upon a jury verdict, of burglary in the
second degree (Penal Law § 140.25 [2]). The conviction arises from
the victims’ report that they returned to their home one night and saw
a pickup truck backed into their driveway, defendant standing on the
back deck of the home, and another individual exiting the home. At
trial, the victims testified that they did not see defendant in the
house and that nothing was stolen.

     Defendant failed to preserve for our review his contention that
the conviction is not supported by legally sufficient evidence
inasmuch as he failed to make a sufficiently specific motion for a
trial order of dismissal at the close of the People’s case (see People
v Gray, 86 NY2d 10, 19). In any event, that contention is without
merit (see generally People v Bleakley, 69 NY2d 490, 495). Viewing
the evidence in light of the elements of the crime as charged to the
jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495). The jury was entitled to resolve issues of
credibility in favor of the People, and we see no reason to disturb
the jury’s resolution of such issues (see People v Henley, 145 AD3d
1578, 1579).

     We agree with defendant, however, that he was denied his right to
counsel when County Court permitted him, rather than defense counsel,
                                 -2-                           407
                                                         KA 15-00129

to decide whether to request a jury charge on a lesser included
offense. “It is well established that a defendant, ‘having accepted
the assistance of counsel, retains authority only over certain
fundamental decisions regarding the case’ such as ‘whether to plead
guilty, waive a jury trial, testify in his or her own behalf or take
an appeal’ ” (People v Colon, 90 NY2d 824, 825-826; see Henley, 145
AD3d at 1580; People v McKenzie, 142 AD3d 1279, 1280). “[D]efense
counsel has ultimate decision-making authority over matters of
strategy and trial tactics, such as whether to seek a jury charge on a
lesser included offense” (Henley, 145 AD3d at 1580; see People v
Colville, 20 NY3d 20, 23). Here, defense counsel requested a charge
on the lesser included offense of criminal trespass. After defendant
stated that he did not want such a charge, the court noted that
defendant’s consent was not required. Nevertheless, defense counsel
stated that he was not requesting the charge based on defendant’s
decision not to follow his advice. Although defense counsel
unequivocally and repeatedly stated that the charge was in defendant’s
best interest, and indicated that defendant was declining the charge
against defense counsel’s advice, the court abided defendant’s choice
and thus “denied [defendant] the expert judgment of counsel to which
the Sixth Amendment entitles him” (Colville, 20 NY3d at 32; see People
v Brown, 117 AD3d 1536, 1536-1537). Moreover, the error is not
harmless beyond a reasonable doubt (see Colville, 20 NY3d at 32-33).
Viewing the evidence in the light most favorable to defendant (see
People v Martin, 59 NY2d 704, 705), there is a reasonable view of the
evidence to support a finding that defendant was guilty of criminal
trespass, and not burglary in the second degree (see id.). We
therefore reverse the judgment and grant defendant a new trial on the
indictment (see generally Colville, 20 NY3d at 32-33; Brown, 117 AD3d
at 1537-1538).

     We further agree with defendant that the court erred in failing
to order an examination pursuant to CPL article 730 to determine
defendant’s competency. Throughout the proceedings, including during
jury selection, trial, and various hearings and conferences, defendant
made numerous interjections and inappropriate outbursts pertaining to,
among other things, a preoccupation with his codefendant’s case, his
belief that the government was infecting prisoners with MRSA and other
diseases, his belief that his life was in danger from “rainbow
hunters,” a preoccupation with radiation leaking from a nearby power
plant, and his belief that he was Santa Claus. Although a defendant
is presumed to be competent (see People v Tortorici, 92 NY2d 757, 765,
cert denied 528 US 834), whenever a court has a “ ‘reasonable ground
for believing that a defendant is in such state of idiocy, imbecility
or insanity that he is incapable of understanding the charge,
indictment or proceedings or of making his defense, it is the duty of
the court to direct him to be examined in these respects’ ” (id.).
Here, in light of the nature and frequency of defendant’s outbursts,
and the People’s expressed concern about defendant’s competency prior
to trial, we conclude that the court abused its discretion in failing
to insure that defendant was competent to stand trial (see People v
Moore, 101 AD3d 1780, 1781; People v Galea, 54 AD3d 686, 687, lv
denied 11 NY3d 854; see generally Tortorici, 92 NY2d at 765). We
                                 -3-                           407
                                                         KA 15-00129

therefore remit the matter to County Court to direct that, prior to a
new trial on the indictment, defendant be examined pursuant to CPL
article 730 to determine whether he is presently competent to stand
trial.

     In light of our determination, we do not address defendant’s
remaining contentions.




Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
