People v. Briecke

• Citation: 143 A.D.2d 1025,533 N.Y.S.2d 584
• Court: New York Supreme Court Appellate Division
• Decision Date: 31 October 1988
• Parties: The PEOPLE, etc., Respondent, v. Stephen BRIECKE, Appellant.

Page 584

533 N.Y.S.2d 584

143 A.D.2d 1025

The PEOPLE, etc., Respondent, v. Stephen BRIECKE, Appellant.

Supreme Court, Appellate Division,

Second Department.

Oct. 31, 1988.

Carlucci & Legum, Mineola (Robert J. Carlucci, of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Demetri M. Jones, of counsel; Thomas M. Sweeney, Jr., on the brief), for respondent.

Before EIBER, J.P., KOOPER, SPATT and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Vaughn, J.), rendered June 3, 1985, convicting him of burglary in the first degree, assault in the first degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15[5] ). The People proved the defendant's criminal responsibility for the crimes for which he was convicted (see, Penal Law former § 30.05, now § 40.15; see also, Penal Law § 25.00). Generally, where conflicting expert testimony is presented, the question of sanity is primarily for the jury (see, People v. Wood, 12 N.Y.2d 69, 77, 236 N.Y.S.2d 44, 187 N.E.2d 116; People v. Buthy, 38 A.D.2d 10, 12-13, 326 N.Y.S.2d 512). The jury has the right to accept or reject the opinion of any expert and where, as here, there is an absence of a serious flaw in the testimony of the People's expert, the jury's resolution of the issue of sanity will not be disturbed (see, People v. Markowitz, 133 A.D.2d 379, 519 N.Y.S.2d 376, lv. denied 70 N.Y.2d 934, 524 N.Y.S.2d 686, 519 N.E.2d 632; People v. Hicks, 125 A.D.2d 332, 509 N.Y.S.2d 62, lv. denied 69 N.Y.2d 881, 515 N.Y.S.2d 1029, 507 N.E.2d 1099; People v. Jandelli, 118 A.D.2d 656, 499 N.Y.S.2d 962, lv. denied 68 N.Y.2d 668, 505 N.Y.S.2d 1034, 496 N.E.2d 692).

The trial court's decision to make the term of imprisonment for the conviction for grand larceny in the third degree consecutive to the concurrent terms imposed for the convictions of burglary in the first degree and assault in the first degree was proper. At bar, the People relied upon the assault and not the grand larceny offense to provide a material element of the burglary conviction (see, Penal Law § 140.30[2] ). Thus even though all the crimes occurred during a continuous course of activity, the burglary and grand larceny offenses constituted separate and distinct acts, and...