People v. Bell

• Citation: 136 A.D.3d 838,26 N.Y.S.3d 88
• Parties: The PEOPLE, etc., respondent, v. Amar BELL, appellant.
• Decision Date: 10 February 2016
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 838
26 N.Y.S.3d 88

The PEOPLE, etc., respondent,
v.
Amar BELL, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 10, 2016.

26 N.Y.S.3d 89

Marianne Karas, Thornwood, N.Y., for appellant.

James A. McCarty, Acting District Attorney, White Plains, N.Y. (

26 N.Y.S.3d 90

Jennifer Spencer and Steven A. Bender of counsel), for respondent.

WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.

136 A.D.3d 838

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered February 25, 2014, convicting him of assault in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On April 12, 2011, at approximately 11:15 a.m., the defendant entered a cell phone and game store located in Yonkers and, following a dispute with a store employee over a recent cell phone purchase by the defendant's girlfriend, slashed the employee across the left side of his face with a knife. The incident was captured on the store's surveillance video. At trial, the defendant asserted the affirmative defense that he was not responsible by reason of mental disease or defect (see Penal Law § 40.15 ).

Contrary to the defendant's contention, under the circumstances presented, the trial court providently exercised its discretion and did not deprive him of the right to present a defense by denying his request to recall his own witness for further examination (see People v. Flowers, 102 A.D.3d 885, 958 N.Y.S.2d 206 ). The proffered testimony was collateral and cumulative in nature (see People v. Johnson, 158 A.D.2d 621, 551 N.Y.S.2d 591 ; People v. Mercado, 134 A.D.2d 292, 520 N.Y.S.2d 617 ).

The trial court providently exercised its discretion in precluding a portion of the defendant's psychiatric evidence because of his failure to provide timely and adequate notice of his intent to do so (see CPL 250.10[1][a], [c] ; [2];

136 A.D.3d 839

People v. Almonor, 93 N.Y.2d 571, 693 N.Y.S.2d 861, 715 N.E.2d 1054 ; People v. White, 75 A.D.3d 109, 901 N.Y.S.2d 346 ). Further, the trial court properly refused to charge assault in the third degree, or reckless assault (Penal Law § 120.00[2] ), as a lesser-included offense of assault in the first degree (Penal Law § 120.10 [2] ), since no reasonable view of the evidence would support a finding that the defendant consciously disregarded a known risk of physical injury (see Penal Law § 15.05[3] ), rather than possessed a conscious objective to disfigure the complainant seriously and permanently (see People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376 ; People v. Beckford, 49 A.D.3d 547, 853 N.Y.S.2d 582 ; People v. Funchess, 284 A.D.2d 478, 728 N.Y.S.2d 175 ; People v. House, 278 A.D.2d 244, 717...