Richard M. Greenberg, Office of the Appellate Defender, New
York (Margaret E. Knight of counsel), for appellant.
R. Vance, Jr., District Attorney, New York (Dana Poole of
counsel), for respondent.
Acosta, P.J., Richter, Manzanet-Daniels, Gische, Webber, JJ.
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,
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.
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.
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.
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 ). The court
minimized the possible prejudice by excluding evidence of
defendant's underlying conviction and only admitted
references to his imprisonment.
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 ).
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.
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."  Dr. Goldsmith then answered that it
was still his opinion that this robbery was out of character
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
. In any event, Dr. Goldsmith did not
change his conclusion, and ultimately his answer was "I
don't know, " which required no further explanation.
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.
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.
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 ). 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 ; Strickland
v Washington, 466 U.S. 668');">466 U.S. 668 ). 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.
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 ...