People v. Braun

• Decision Date: 29 December 1993
• Parties: PEOPLE of the State of New York, Respondent, v. Charles BRAUN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 469

606 N.Y.S.2d 469

199 A.D.2d 993

PEOPLE of the State of New York, Respondent, v. Charles BRAUN, Appellant.

Supreme Court, Appellate Division Fourth Department.

Dec. 29, 1993.

Linda S. Reynolds by Kristin Preve, Buffalo, for appellant.

Kevin M. Dillon by J. Michael Marion, Buffalo, for respondent.

Before PINE, J.P., and BALIO, DOERR and BOEHM, JJ.

MEMORANDUM:

The court erred in allowing the People's expert psychiatric witness to testify at length that, in his opinion, defendant had not been truthful when he told the psychiatrist about the same incidents to which defendant had testified to the jury. The basis for the psychiatrist's opinion is an important factor in the jury's evaluation of his expert opinion (see, Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 441, 318 N.Y.S.2d 705, 267 N.E.2d 452). The court, however, had to balance the jury's need to be informed of the basis for the expert's opinion against the prejudice to defendant resulting from expert testimony that defendant was not credible. In this case, the detailed testimony of the psychiatrist exceeded the foundation necessary to establish the basis for the expert's opinion and invaded the province of the jury to determine defendant's credibility (see, e.g., People v. Ciaccio, 47 N.Y.2d 431, 439, 418 N.Y.S.2d 371, 391 N.E.2d 1347). The court's admonition to the jury was insufficient to correct the error. That error was harmless, however, because, in light of the strength of the People's case, "there is no significant probability * * * that the jury would have acquitted the defendant had it not been for the error * * * which occurred" (People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Defendant's right of confrontation was violated when the same psychiatric witness was permitted to testify, based on statements in an investigator's report, about alleged incidents of violence committed by defendant against three women. None of those women was interviewed by the witness and neither the woman nor the investigator testified at trial. Although the court erred in admitting that testimony (see, People v. Sugden, 35 N.Y.2d 453, 460, 363 N.Y.S.2d 923, 323 N.E.2d 169), the error was harmless (see, People v. Crimmins, supra, 36 N.Y.2d at 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).

We reject defendant's contention that his conviction for attempted murder was against the weight of the evidence. It was defendant's burden to establish the affirmative defense of extreme emotional disturbance by a preponderance of the evidence (Penal Law § 25.00 [2]; People v. Patterson, 39 N.Y.2d 288, 301, 383 N.Y.S.2d 573, 347 N.E.2d 898 affd. 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281). The verdict, which reflects that he did not meet that burden, is in...