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People v. Sanabria

Supreme Court of New York, First Department

June 1, 2017

The People of the State of New York, Respondent,
Rafael Sanabria, Defendant-Appellant.

          Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E. Knight of counsel), for appellant.

          Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole of counsel), for respondent.

          Acosta, P.J., Richter, Manzanet-Daniels, Gische, Webber, JJ.

         Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered November 1, 2013, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 10 years, affirmed.

         In 2011, defendant followed the victim, who did not recognize defendant, into a building and demanded money. Defendant pulled out a kitchen knife about seven inches long, stated he would not hurt her, and told her to give him $12. The victim handed him a $20 bill, which prompted defendant to ask for another, and she complied. Defendant ran out of the building and ended up at a Duane Reade store. The victim told a bystander what occurred, and several bystanders found defendant in the Duane Reade and waited for him to exit. As defendant exited and attempted to flee, several bystanders tackled him. Defendant was held down by two men, and one bystander saw a small kitchen steak knife on the ground. When two police officers arrived, they stood up defendant and transported him to the stationhouse. During processing, the officers recovered two packs of cigarettes from defendant, and he told an officer that he robbed a woman with a knife because he needed cigarettes.

         During trial, defendant raised a defense of lack of criminal responsibility by mental disease or defect. Defendant's expert, Dr. Eric Goldsmith, reviewed documents, including the criminal complaint, indictment, voluntary disclosure form, and defendant's medical records. In addition, Dr. Goldsmith interviewed defendant several times and interviewed his family members. Dr. Goldsmith opined that defendant was experiencing schizophrenic conditions, including loud voices that told him he should do what he needed to get cigarettes, and that defendant believed something bad would happen if he did not follow the voice's command. Specifically, Dr. Goldsmith opined that defendant could not determine whether what he actually did was wrong or against commonly held moral principles. Dr. Goldsmith's conclusions were largely based on self-reporting by defendant, such as defendant stating that he had used a butter knife during the robbery, he only asked for $20, and he walked away after taking the money. Dr. Goldsmith also concluded that a violent act was uncharacteristic of defendant because defendant had stated he had no history of violence.

         The People's expert, Dr. Jason Hershberger, reviewed the complaint, the knife, defendant's medical records, and Dr. Goldsmith's report. He interviewed defendant and conducted a mental status exam, and concluded that at the time of the robbery, defendant did not suffer from any delusions and that his memory was fine. Dr. Hershberger noted that medical records from just after the arrest showed defendant was not suffering from delusions or hearing any voices, which was unusual because in his expert opinion, delusions do not come and go that fast. Dr. Hershberger stated that it strained medical believability that defendant would experience such intense and controlling delusions, but not suffer from any psychotic delusions 10 days before or 2 days after the robbery. Dr. Hershberger also stated that defendant's account attempted to minimize the crime and evade responsibility. Moreover, Dr. Hershberger contended that defendant knew his actions were wrong, because defendant "hid the weapon under his clothes" as he was walking, revealing it only after he was alone with the victim, and that he ran away afterwards.

         The court properly exercised its discretion in admitting evidence that defendant had been released from prison a few months before the robbery, and denying counsel's request to redact that information from defendant's medical records. In support of the defense of lack of criminal responsibility by reason of mental disease or defect, the defense psychiatric expert testified that defendant had been stable throughout his years in custody, when he received proper treatment for his schizophrenia. However, after he was released, he no longer received treatment, he became unstable, he began hearing voices, and he committed the robbery a few months later. Evidence of defendant's confinement in prison was "inextricably interwoven" with the expert's testimony and conclusion (People v Ventimiglia, 52 N.Y.2d 350, 361 [1981]). The court minimized the possible prejudice by excluding evidence of defendant's underlying conviction and only admitted references to his imprisonment.

         The court properly rejected defendant's suggested use of terms such as "institution" or "facility, " rather than "prison, " because such terms might have confused the jury, or led it to speculate on the circumstances surrounding his confinement. Moreover, the court instructed the jury that the evidence was admitted solely for the purpose of evaluating the expert's opinion. Thus, the probative value of the evidence outweighed any prejudicial effect, which was avoided by the court's thorough limiting instructions (see generally People v Bradley, 20 N.Y.3d 128, 133 [2012]).

         The dissent claims that the trial court infringed on defendant's ability to present a defense when the court prevented defendant's expert from expanding on his answers provided during cross-examination about defendant's prior violent act. Defendant did not preserve his claim regarding the alleged limitations on his expert's testimony, and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal.

         At trial, the People asked Dr. Goldsmith if he was aware that defendant had committed a serious violent crime in his past. Dr. Goldsmith answered that he was aware defendant was "convicted of a serious violent act, which was later overturned on appeal, which he later then took a plea to, an Alford plea." The People asked to strike the answer, requesting Dr. Goldsmith answer with a yes or no to the question. After defense counsel's objection, the court stated the People's question stands, and that Dr. Goldsmith's previous answer would be stricken. Further, the court informed the jury that the question was being asked not for the truth of the statement, but whether or not it would have influenced the doctor's conclusion if he knew of certain facts. In response to the question, Dr. Goldsmith stated, "I don't know." The People then asked that if he was aware that defendant had put a pillow over a woman's face and choked her, whether "that would be a violent act, right?" Dr. Goldsmith answered it "would be a violent act." Dr. Goldsmith then stated that he was aware there was an allegation that defendant had committed a violent crime in the past. The People asked, "[I]t's fair to say then that when the defendant tells you he has absolutely no violence in his past that's not a completely accurate statement, correct?, " to which Dr. Goldsmith responded, "[I]ncorrect." [1] Dr. Goldsmith then answered that it was still his opinion that this robbery was out of character for defendant.

         The dissent states that because the court struck Dr. Goldsmith's answer and instructed him to answer in a "yes or no or I don't know" capacity, the court infringed on counsel's ability to present a defense. The doctor's reference to an Alford plea went beyond the People's question. Further, defense counsel failed to revisit this issue on redirect by exploring the basis of Dr. Goldsmith's response that his opinion was unchanged [2]. In any event, Dr. Goldsmith did not change his conclusion, and ultimately his answer was "I don't know, " which required no further explanation.

         Moreover, the court gave curative instructions as to why these questions were being asked, and repeatedly instructed the jury during this exchange that the questions were only to determine whether the doctor's conclusion would have been influenced based on these facts. Finally, during the jury charge, the court again explained that the information that defendant was in a institution or was in prison was not introduced to show the jury that he committed this particular crime or that he has a propensity to commit crimes, but was submitted only for the jury to assess the basis of the experts' opinions and the accuracy of information the experts relied upon. Even if the court had allowed Dr. Goldsmith to discuss the Alford plea in his answer, there is no reason to assume that would change the verdict.

         Many of the facts that Dr. Goldsmith relied on were refuted by evidence in the record, which showed defendant was not being truthful. Thus, there was an ample basis in the record for the jury to reject Dr. Goldsmith's conclusion. For example, defendant reported to Dr. Goldsmith that he had walked away after the robbery, but witnesses saw defendant run away. Defendant also misinformed Dr. Goldsmith that he asked for $20, when in reality he had asked for exactly $12. Further, defendant told Dr. Goldsmith he had used a butter knife in the robbery, but Dr. Goldsmith discovered from other sources that defendant had used a serrated steak knife to threaten the victim.

         Defendant has not made a CPL 440.10 motion, and his ineffectiveness claim cannot be resolved based on the current record on appeal (see generally People v Rivera, 71 N.Y.2d 705, 709 [1988]). In the alternative, to the extent the record permits review, we conclude that defendant received effective assistance of counsel (see People v Benevento, 91 N.Y.2d 708, 713-714 [1998]; Strickland v Washington, 466 U.S. 668');">466 U.S. 668 [1984]). Defendant has not shown that any of counsel's alleged deficiencies fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived defendant of a fair trial or affected the outcome.

         The only issue at trial was whether defendant proved his affirmative defense under Penal Law § 40.15 by establishing that he did not appreciate the wrongfulness of the robbery he committed. Defendant has not shown that any of counsel's alleged errors and omissions had any effect on the jury's decision to credit the ...

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