                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 24, 2014                      104644
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

ADAM M. HADFIELD,
                    Appellant.
________________________________


Calendar Date:   May 30, 2014

Before:   Stein, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.

                              __________


     John A. Cirando, Syracuse, for appellant.

      Alexander Lesyk, Special Prosecutor, Norwood, for
respondent.

                              __________


Egan Jr., J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered October 7, 2011, upon a verdict
convicting defendant of the crimes of criminal sexual act in the
first degree (five counts), unlawful imprisonment in the first
degree, menacing in the second degree, criminal mischief in the
fourth degree, kidnapping in the second degree, sexual abuse in
the first degree, rape in the first degree and driving while
intoxicated.

      Defendant was charged in a 13-count indictment with
criminal sexual act in the first degree (five counts), unlawful
imprisonment in the first degree, menacing in the second degree,
reckless endangerment in the first degree, criminal mischief in
the fourth degree, kidnapping in the second degree, sexual abuse
                               -2-                104644

in the first degree, rape in the first degree and driving while
intoxicated. Count 1 of the indictment – charging criminal
sexual act in the first degree – pertained to defendant's sexual
contact with victim A in March 2008; the remaining counts of the
indictment related to defendant's conduct with respect to victim
B in July 2009. The matter proceeded to trial in July 2011 and,
during the course thereof, defendant tendered proof in support of
his affirmative defense of not guilty by reason of mental disease
or defect. Upon defense counsel's motion at the close of the
People's case, County Court dismissed the reckless endangerment
count and, at the close of all proof, the jury returned a verdict
finding defendant guilty of the remaining charges. Defendant
thereafter was sentenced to an aggregate prison term of 53 years
to be followed by a lengthy period of postrelease supervision.1
This appeal ensued.2

      We affirm. Initially, we reject defendant's assertion that
County Court erred in finding that he was competent to stand
trial. "The key inquiry in determining whether a criminal
defendant is fit for trial is 'whether he [or she] has sufficient
present ability to consult with his [or her] lawyer with a
reasonable degree of rational understanding – and whether he [or
she] has a rational as well as factual understanding of the
proceedings against him [or her]'" (People v Phillips, 16 NY3d
510, 516 [2011], quoting Dusky v United States, 362 US 402, 402
[1960]; see CPL 730.10 [1]). The People bear the burden of
proving a defendant's competency by a preponderance of the
evidence (see People v Surdis, 77 AD3d 1018, 1018 [2010], lv
denied 16 NY3d 800 [2011]), and the trial court's determination
in this regard "is accorded considerable deference" (People v


     1
        Defendant's maximum term of imprisonment was reduced by
operation of law to 50 years.
     2
        While incarcerated at the St. Lawrence County
Correctional Facility awaiting trial in this matter, defendant
assaulted another inmate. Following a nonjury trial, defendant
was convicted of assault in the second degree and, upon appeal,
this Court has affirmed the judgment of conviction (People v
Hadfield, ___ AD3d ___ [appeal No. 104645, decided herewith]).
                               -3-                104644

Kendall, 91 AD3d 1191, 1192 [2012]; see People v Phillips, 16
NY3d at 517; People v Brown, 110 AD3d 481, 482 [2013], lv denied
22 NY3d 1039 [2013]). Notably, the mere fact that a defendant
may suffer a memory loss does not automatically trigger a finding
of incompetency (see People v Bates, 83 AD3d 1110, 1112 [2011],
lv denied 21 NY3d 1072 [2013]; People v Surdis, 77 AD3d at 1018 n
1).

      Here, defendant was evaluated by two psychiatrists
(testifying on behalf of the People) and one psychologist
(testifying on behalf of defendant). All three evaluators found
that defendant appreciated the nature and severity of the charges
against him and understood the roles of the trial judge, the
jury, the prosecutor and defense counsel. As for defendant's
ability to consult with his attorney, one of the People's experts
acknowledged that defendant's claimed memory lapses "would make
[assisting in his own defense] more difficult," and the
psychologist who testified on behalf of defendant opined that
defendant's asserted "lack of recollection [might] compromise his
ability to testify relevantly or realistically challenge
prosecution witnesses."3 Despite these concerns, two of the
three experts found defendant to be competent to stand trial, and
having reviewed the evaluators' respective reports and
conflicting testimony, we discern no basis upon which to disturb
County Court's finding that defendant indeed was fit for trial.

      Defendant next contends that his convictions are not
supported by legally sufficient evidence and, further, are
against the weight of the evidence. Again, we disagree. Insofar
as is relevant here, count 1 of the indictment required the
People to establish that defendant engaged in anal sexual conduct
with victim A by forcible compulsion (see Penal Law § 130.50
[1]). Victim A, who had been dating defendant for three or four
months at the time the incident occurred in March 2008, testified
that she awoke on the morning in question to find defendant
attempting to have sex with her. When victim A refused his


     3
        The psychologist conceded, however, that there were
"other ways in which [defendant] could assist counsel in
challenging statements made by a witness."
                              -4-                104644

advances, defendant pinned her arms above her head, removed her
underwear and, despite her continued protests, engaged in anal
sex with her. Victim A further testified that, during this
encounter, defendant's hand or body pushed her head into her
pillow, making it difficult for her to breathe. Such testimony,
in our view, was sufficient to establish the element of forcible
compulsion (see Penal Law § 130.00 [8] [a], [b]), as well as the
remaining elements of the crime. To the extent that defendant
now deems victim A's account of this incident to be dubious –
citing, among other things, her delay in reporting the crime –
these issues were fully explored at trial, and we defer to the
jury's resolution of the underlying credibility issues (see
People v Littebrant, 55 AD3d 1151, 1154-1155 [2008], lv denied 12
NY3d 818 [2009]).

      With respect to the counts pertaining to victim B (counts
2-3 and 5-13), victim B testified that she and defendant began
dating in May 2009. On the evening of July 14, 2009, she and
defendant went to a local bar – known as the Trackside – around
10:00 p.m., where they remained for approximately 90 minutes.
During this time period, defendant consumed "quite a few" beers
and/or mixed drinks and "a lot of shots" of alcohol. Defendant
and victim B then left the Trackside, purchased a quantity of
beer and went to a birthday party for her ex-boyfriend. During
the early morning hours of July 15, 2009, defendant and victim B,
both of whom had continued to drink at the birthday party,
returned to the Trackside, where they remained until closing.

      Although defendant and victim B apparently had enjoyed a
cordial evening up until this point, the two began to argue upon
returning to victim B's residence in the Town of Pitcairn, St.
Lawrence County. When victim B indicated that she was going to
sleep on the couch, defendant became upset, prompting victim B to
decide to leave the premises. Defendant, however, would not
allow victim B to leave; after blocking her exit, taking her cell
phone and shoving her, defendant pinned victim B to the ground
with his knees against her shoulders, took out a pocket knife and
dragged the blade across her face – all before pressing the blade
to her throat and informing her that she "[had] to die" and that
"he was going to kill [her]." Eventually, victim B persuaded
defendant to release her so that she could let her animals
                              -5-                104644

outside to relieve themselves. After expressing concern over the
welfare of one of her dogs, victim B convinced defendant to allow
her to venture outside as well, whereupon she managed to get to
her vehicle and flee. Defendant gave chase, however, and – once
he caught up with victim B – rammed her vehicle with his truck
and forced her off the road. Defendant then punched out the
driver's side window of victim B's vehicle, pulled her out of the
car and "[t]ossed" her into the front passenger seat of his
truck.

      After reentering the truck, defendant reclined the front
seat and pinned victim B down by placing his elbow to her
collarbone. Following a brief struggle over the knife, which
victim B succeeded in tossing out of the window of the truck,
defendant began driving. Approximately 10 minutes later, victim
B was allowed to sit up, at which point she recognized landmarks
that placed her whereabouts in St. Lawrence County. As defendant
continued to drive, they passed another motorist, who victim B
recognized as a friend, prompting her to launch her hands and
face out of the driver's side window and yell for help; defendant
responded, "Great, now the cops are going to be called."
Although victim B's friend turned around and began to follow
defendant's truck, defendant "started driving faster" and the
other vehicle faded from sight. As victim B pleaded for
defendant to take her home, they approached an intersection with
a stop sign, and victim B used this opportunity to "kick the
shifter [lever] out of gear," exit the vehicle and begin running.
After only "two or three steps," however, defendant caught up
with victim B, informing her that "now [she was] really going to
have to die." Defendant then dragged victim B back the truck and
again began driving.

      Eventually, defendant pulled over and announced that he
wanted to get some sleep. Despite his stated intention,
defendant thereafter grabbed victim B's breast before straddling
her, pinning her down to the passenger seat and attempting to
persuade her to perform oral sex. When victim B refused,
defendant – on three separate occasions — placed his hands around
victim B's throat and choked her; each time that victim B would
gasp for air, defendant would force his penis into her mouth.
Defendant then removed victim B's pants and forcibly engaged in
                                  -6-             104644

vaginal and anal sex with her.4

      In the interim, victim B gained access to her cell phone
and surreptitiously placed a call to 911. Eventually, victim B
was able to provide clues as to her location, and defendant was
successfully pulled over and apprehended by State Trooper
Christopher Sharpe between the Towns of Fowler and Gouverneur in
St. Lawrence County. Sharpe testified that he smelled alcohol
"[a]s soon as [he] opened the door" to defendant's truck, State
Trooper Michael Tyler testified that he observed two empty beer
bottles — one next to and one inside of defendant's truck — and
State Trooper Scott Freeman observed that defendant had "glassy
eyes," a red face, impaired motor coordination and "a strong odor
of alcohol emanating from him." Once back at the station,
defendant did not respond to a request to submit to a chemical
test. According to the experts who testified on defendant's
behalf, defendant had a well-documented history of both alcohol
abuse and alcohol-induced blackouts.

      The foregoing proof, in our view, is legally sufficient to
sustain defendant's conviction of each of the charged crimes.
Although defendant specifically takes issue with the
jurisdictional element of counts 7 through 12 – contending that
there is insufficient proof to establish that the subject crimes
occurred in St. Lawrence County – we disagree. CPL 20.40 (4) (g)
provides that "[a]n offense committed in a private vehicle during
a trip thereof extending through more than one county may be
prosecuted in any county through which such vehicle passed in the
course of such trip." Inasmuch as the record establishes that
the events in question began and ended in St. Lawrence County,
venue was properly established by a preponderance of the evidence
(see People v MacDonald, 63 AD3d 1520, 1521-1522 [2009], lv
denied 13 NY3d 746 [2009]; People v Buccina, 62 AD3d 1252, 1253-
1254 [2009], lv denied 12 NY3d 913 [2009]; People v Curtis, 286
AD2d 901, 902 [2001], lv denied 97 NY2d 728 [2002]).




     4
        Subsequent DNA testing found evidence of defendant's
sperm in victim B's anus and vagina.
                              -7-                104644

      As for defendant's weight of the evidence claim, although
defendant contends that he carried his burden of establishing
that he was not guilty by reason of mental disease or defect (see
Penal Law §§ 25.00 [2]; 40.15), the case law makes clear that
"[w]here conflicting expert testimony is presented, the question
[of] whether the defendant suffered from a mental disease or
defect at the time of the commission of the crime is for the fact
finder, who may accept or reject the opinion of any expert"
(People v Capela, 97 AD3d 760, 761 [2012], lvs denied 19 NY3d
1024 [2012] [internal quotation marks and citation omitted]; see
People v Demagall, 114 AD3d 189, 192 [2014]). Here, the People
and defendant each presented experts who, in turn, offered
conflicting testimony as to defendant's mental health status and
his capacity to comprehend the nature and consequences of his
actions with respect to the incident involving victim B. In this
regard, defendant's expert opined that defendant suffers from a
borderline personality disorder and, when confronted with intense
stress, will experience disassociative episodes, i.e., he will
become "more than one person," during which time "[h]e doesn't
know what he's doing." According to defendant's expert,
defendant was experiencing such an episode during the early
morning hours of July 15, 2009 when he abducted and brutalized
victim B and, therefore, defendant "did not have the ability to
comprehend the nature and consequences of his behavior or [to
know] that it was wrong."

      The People's expert, however, although acknowledging that
defendant has certain mental health issues, primarily focused
upon defendant's well-documented history of alcohol and/or
substance abuse, noting that defendant's underlying anger
management and impulse control issues are exacerbated by his
drinking. Based upon his interview with defendant, the People's
expert concluded that defendant did not experience disassociative
episodes except in relationship to alcohol-induced blackouts.
Thus, even assuming that defendant's professed memory loss on the
morning in question was genuine, the People's expert attributed
such memory impairment to defendant's level of intoxication – as
opposed to a true disassociative episode. Further, defendant's
underlying history, coupled with his conduct immediately
                              -8-                104644

preceding and following his apprehension,5 led the People's
expert to conclude that defendant "had substantial capacity to
know what he was doing[,] . . . knew the nature and consequences
of his action[s] . . . [and] also had substantial capacity to
appreciate the wrongfulness of his action[s]." As we discern no
"serious flaw" in the opinion offered by the People's expert, we
are unable to conclude that the jury, in crediting such
testimony, "failed to give the evidence the weight it should be
accorded" (People v Tillman, 260 AD2d 656, 657 [1999] [internal
quotation marks and citation omitted]).

      Defendant's remaining contentions do not warrant extended
discussion. Although defendant asserts that County Court erred
in allowing two of the troopers to testify as to their prior law
enforcement encounters with defendant, we note that the testimony
attributable to State Trooper Dean White was elicited by defense
counsel on cross-examination. As to the testimony given by
Sharpe, defense counsel promptly objected and County Court, in
turn, sustained the objection and issued an appropriate curative
instruction. Under these circumstances, we do not find that the
claimed evidentiary errors deprived defendant of a fair trial.

      Nor are we persuaded that defendant was denied the
effective assistance of counsel. The claimed error with respect
to eliciting White's testimony is insufficient to demonstrate
that counsel was ineffective and, to our analysis, the record
discloses valid strategic reasons for not requesting a severance
of the counts set forth in the indictment. Not only would such a
motion likely have been futile but, by trying the offenses as to
victims A and B together, defendant was able to assert his
affirmative defense of not guilty by mental disease or defect as
to both the 2008 and 2009 offenses – notwithstanding the virtual
absence of testimony regarding his mental state at the time he
committed the crime against victim A in 2008. Defendant's


    5
        After defendant was apprehended, defendant was observed
banging his head against the side of his truck and attempting to
bite a dog. According to the People's expert, this "overly
dramatic" behavior was defendant's attempt at "trying to look
crazy."
                              -9-                  104644

remaining arguments on this point, as well as his claim that the
sentence imposed was harsh and excessive, have been examined and
found to be lacking in merit.

     Stein, J.P., McCarthy, Lynch and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
