The opinion of the court was delivered by: Lahtinen, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Calendar Date: February 11, 2009
Before: Mercure, J.P., Rose, Lahtinen, Malone Jr. and Kavanagh, JJ.
Appeal from a judgment of the County Court of Columbia County (Czajka, J.), rendered March 21, 2007, upon a verdict convicting defendant of the crime of murder in the second degree.
In this murder case, defendant asserted insanity as his defense. Defendant had a three-year history of severe psychiatric problems that had been manifested in a variety of bizarre actions and resulted in him being placed several times in a secure psychiatric facility in Massachusetts. He was at that facility when, on February 9, 2006, he escaped. He claimed to have received a vision from God directing him to kill the victim, a person with whom he had a brief encounter a couple of weeks earlier and whom he believed provided drugs to minors. Defendant entered the victim's home in Columbia County on the morning of February 11, 2006, where he killed him by stabbing him over 30 times and repeatedly striking him with a paperweight that he had placed in a sock. Defendant piled various items around the victim's body and set the pile on fire. He took a few items from the home and then left the premises.
Following the killing, defendant was accused of an unrelated minor matter, which resulted in his being held briefly at the Rensselaer County Jail. As he was exiting the jail on February 15, 2006, he was approached by Kevin Skype, an investigator from the Columbia County Sheriff's Department, and Mark Marino, an agent with the Bureau of Alcohol, Tobacco and Firearms. After brief questioning, defendant admitted his involvement in killing the victim. The law enforcement officers transported defendant to Marino's office in the City of Albany, where he received Miranda warnings and then gave a detailed 11-page statement.
He was indicted on two counts of murder in the second degree, robbery in the first degree and arson in the second degree. The People withdrew all counts except one count of murder in the second degree. Based upon the forensic psychiatric report of Stuart Kleinman that was prepared at the People's request, the People consented to defendant's entry of a plea of not responsible by reason of mental disease or defect (see CPL 220.15; Penal Law § 40.15). County Court, however, rejected the plea. The matter proceeded to trial, where the insanity defense was urged by defendant. Rejecting the defense, the jury convicted defendant of the murder count. Defendant thereafter moved to set aside the verdict and County Court denied the motion without a hearing. Defendant was sentenced to a prison term of 25 years to life. Defendant appeals.
Defendant initially contends that County Court erred in declining to accept his plea, made pursuant to CPL 220.15, of not responsible by reason of mental disease or defect. "[A] trial court is not required to accept every offer of a plea merely because the defendant wishes to enter a plea and may reject a plea offer in the exercise of sound judicial discretion" (People v Washington, 229 AD2d 726, 727 , lv denied 88 NY2d 1025 ). Before accepting a plea of not responsible by reason of mental disease or defect, the court must, among other things, be satisfied that the defense would be proven by defendant by a preponderance of the evidence at trial (see CPL 220.15  [b]). To establish the affirmative defense, defendant must show that at the time the crime was committed, defendant "lacked substantial capacity to know or appreciate either . . . [t]he nature and consequences of such conduct; or . . . [t]hat such conduct was wrong" (Penal Law § 40.15).
Kleinman opined in his forensic psychiatric evaluation that defendant had the capacity to know that killing was illegal, but he did not appreciate that doing so was wrong. County Court rejected this opinion based upon its interpretation of the law as providing that, if defendant knew his conduct was illegal, then he necessarily knew it was wrong. As described by Judge Cardozo in detail in People v Schmidt (216 NY 324, 335-340 ), the law, albeit nuanced, does not compel the conclusion that knowledge of wrong necessarily follows knowledge of illegality (see People v Wood, 12 NY2d 69, 76 ; CJI2d[NY] Penal Law § 40.15; Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 40.15, at 297-299). Notwithstanding County Court's misapprehension of the law, reversal is not required for its refusal to accept the plea. It is apparent from its written decision that the court was unpersuaded by some of the evidence accepted by Kleinman in his analysis, and the court also supported its rejection of the plea by its own observation of defendant's demeanor. Moreover, "defendant was not unduly prejudiced since he was allowed to present his defense to the jury which could have found him not criminally responsible by reason of mental disease or defect" (People v Washington, 229 AD2d at 728). Nevertheless, we find that County Court's misapprehension of the law contributed to a prejudicial error at trial regarding defendant's efforts to comment on the failure of the People to produce Kleinman at trial.
Before addressing that issue, we will address defendant's argument that the jury's verdict was against the weight of the evidence, an issue that would require dismissal of the indictment if found persuasive (see CPL 470.20 ). Where, as here, a different verdict would not have been unreasonable, our weight of the evidence review includes weighing conflicting testimony, reviewing rational inferences that may be drawn from the evidence and evaluating the strength thereof (see People v Danielson, 9 NY3d 342, 348 ; People v Bleakley, 69 NY2d 490, 495 ). Deference is accorded the jury's credibility determinations since it has the benefit of seeing the witnesses and observing their demeanor (see People v Romero, 7 NY3d 633, 644 ; People v Washington, 229 AD2d at 728).
Defendant produced two experts who gave detailed explanations as to why defendant's actions were consistent with acute mental infirmities. Defendant's diagnosis included schizophrenia, paranoid type. He was also delusional, having believed that he was, variously, among others, Robin Hood, Merlin and Sir Galahad of the Arthurian legends, a ninja, and the slayer of the white stag. Numerous other examples of unusual behavior such as living for a while in a cave despite having a home were set forth. Defendant's experts opined that defendant lacked capacity to know or appreciate that his conduct was wrong.
On rebuttal, the People produced psychiatrist Alan Tuckman, who opined to a reasonable degree of medical certainty that defendant appreciated both that he was killing another individual and that such conduct was wrong. He found support for his conclusion that defendant knew his conduct was wrong in acts he interpreted as being calculated to cover up the crime, including, among many others, setting the house on fire, stealing items from the house, locking and barricading doors, and giving a false name when initially approached by police. A review of the record, while revealing a difficult issue regarding defendant's sanity, does not persuade us that the jury's assessment of credibility and its ultimate determination were against the weight of the evidence (see People v Lombard, 258 AD2d 476, 476 , lv denied 93 NY2d 973 ).
However, for the reasons that follow, we do find merit in defendant's argument that reversible error occurred as a result of County Court's handling of the People's decision not to produce Kleinman, who was the first expert they retained to examine defendant. Defendant asserts three interrelated and escalating errors: County Court refused to give a missing witness charge; the court directed defense counsel that he could not urge the jury in summation to draw an inference from the People's failure to call Kleinman; and, when the jury sent a note ...