State of New York Supreme Court, Appellate Division Third Judicial Department
October 14, 2010
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
KRISTOFER J. SURDIS, APPELLANT.
The opinion of the court was delivered by: McCarthy, J.
MEMORANDUM AND ORDER
Calendar Date: September 15, 2010
Before: Mercure, J.P., Malone Jr., McCarthy, Garry and Egan Jr., JJ.
Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered November 24, 2008, convicting defendant upon his plea of guilty of the crime of falsely reporting an incident in the first degree (two counts).
Defendant was charged in an indictment with five counts of falsely reporting an incident in the first degree arising out of bomb threats made to several grocery stores. Following a mental competency hearing conducted pursuant to CPL 730.30, County Court determined that defendant was fit to proceed to trial. Thereafter, defendant pleaded guilty to the first two counts in the indictment and was sentenced, as agreed, to concurrent prison terms of seven years followed by five years of postrelease supervision. Defendant appeals.
Defendant first argues that County Court erred in finding him competent to stand trial. In that regard, the burden is on the prosecution to prove a defendant's competence by a preponderance of the evidence (see People v Mendez, 1 NY3d 15, 19 ). Here, defendant was examined by three certified psychologists, two of whom concluded that he possessed the capacity to understand the proceedings against him and that he was capable of assisting in his own defense (see CPL 730.10 ). To the extent that the third psychologist reached a different conclusion,*fn1 we note only that a hearing court's competency ruling is accorded considerable deference, particularly given the existence of conflicting proof (see People v Johnson, 52 AD3d 1040, 1042 , lv denied 11 NY3d 833 ; People v Campbell, 279 AD2d 797, 798 , lv denied 96 NY2d 826 ). Defendant's related claim that one of the credited witnesses was unqualified to provide expert testimony is similarly unavailing. Indeed, the admissibility of expert testimony lies within the sound discretion of the hearing court and, here, the witness possessed sufficient education, training and experience from which County Court could infer that her opinion would be reliable (see People v Geraci, 254 AD2d 522, 524 ).*fn2
Finally, given defendant's extensive criminal history, including the fact that he was under parole supervision for a similar crime when he committed the instant criminal offenses, we find no abuse of discretion nor do extraordinary circumstances exist to warrant the reduction of the agreed-upon sentence in the interest of justice (see People v Bridge, 69 AD3d 969, 970 ; People v Jackson, 67 AD3d 1067, 1069 , lv denied 14 NY3d 801 ).
Mercure, J.P., Malone Jr., Garry and Egan Jr., JJ., concur.
ORDERED that the judgment is affirmed.