People v. Fish

• Decision Date: 02 January 1997
• Parties: The PEOPLE of the State of New York, Respondent, v. Mark D. FISH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 124

652 N.Y.S.2d 124

235 A.D.2d 578

The PEOPLE of the State of New York, Respondent, v. Mark D. FISH, Appellant.

Supreme Court, Appellate Division Third Department.

Jan. 2, 1997.

John Rowley, Ithaca, for appellant.

George M. Dentes, District Attorney, Ithaca, for respondent.

Before CARDONA, P.J., and MERCURE, CASEY, SPAIN and CARPINELLO, JJ.

CARPINELLO, Justice.

Appeal from a judgment of the County Court of Tompkins County (Barrett, J.), rendered April 11, 1995, upon a verdict convicting defendant of the crimes of kidnapping in the first degree, robbery in the first degree, sodomy in the first degree (four counts) and rape in the first degree (three counts).

Defendant was convicted of one count of kidnapping in the first degree, one count of robbery in the first degree, four counts of sodomy in the first degree and three counts of rape in the first degree. Upon his conviction, he was sentenced to prison terms of 20 years to life on the kidnapping charge and 5 to 10 years on each of the other charges. The sentences were to be served consecutively with the exception of counts 6 and 7 (sodomy in the first degree and rape in the first degree, respectively), which were to be served concurrently with each other and consecutively with all others, and counts 9 and 10 (sodomy in the first degree and rape in the first degree, respectively), which were to be served concurrently with each other and consecutively with all others.

The charges arise out of several incidents that occurred on September 17, 1994 and September 18, 1994 in and around the community of Jacksonville, Tompkins County, where the victim in this case resided. The victim and defendant were acquainted, as defendant had previously been married to the victim's close friend. Approximately one month before the alleged incidents, defendant had mowed the victim's lawn at his ex-wife's request.

According to the victim's trial testimony, defendant appeared at her home on the evening of September 17, 1994 and asked to use her phone, claiming that his car had broken down. After being admitted, defendant produced a knife, took the victim's car keys and money from her purse and ordered her upstairs, where he raped and sodomized her. The following day, he drove the victim in her own car to an area with which she was not familiar, periodically stopping the car to rape and sodomize her. At one point, defendant dragged the victim into the woods and choked her into unconsciousness. On the way back to the car, she lost her shoes and glasses. Later that morning, he again dragged her into the woods, this time tying her to a fallen tree with twine and duct tape. He also wrapped the duct tape around her head and mouth. Defendant returned only twice during the day. As it was growing dark, the victim, who suffers from a serious heart condition, eventually freed herself and walked barefoot to a nearby house. The police were called and defendant was apprehended at his house, in front of which the victim's car was parked. Defendant appeals from the judgment of conviction.

We reject defendant's argument that County Court should have permitted defendant's purported "alcoholism expert" to testify at trial. It is well established that the admissibility and scope of expert testimony is committed to the sound discretion of the trial court (see, People v. Mooney, 76 N.Y.2d 827, 828, 560 N.Y.S.2d 115, 559 N.E.2d 1274; People v. Cronin, 60 N.Y.2d 430, 433, 470 N.Y.S.2d 110, 458 N.E.2d 351). The trial court's decision will not be disturbed absent a showing of serious mistake, error of law or abuse of discretion (see, Werner v. Sun Oil Co., 65 N.Y.2d 839, 840, 493 N.Y.S.2d 125, 482 N.E.2d 921; People v. Page, 225 A.D.2d 831, 833-834, 638 N.Y.S.2d 985, 988, lv. denied 88 N.Y.2d 883, 645 N.Y.S.2d 457, 668 N.E.2d 428). There has been no such showing here. The effect of alcohol on an individual's mental state has been recognized as being within the ordinary ken of the average juror (see, People v. Kehn, 109 A.D.2d 912, 914, 486 N.Y.S.2d 380).

The victim's psychiatric records were properly excluded. We have conducted our own in camera review of these records and find that there is no evidence that the victim has a history of hallucinations, sexual fantasies or false reports of sexual attacks (see, People v. Smith, 192 A.D.2d 806, 808, 596 N.Y.S.2d 539, lv. denied 81 N.Y.2d 1080, 601 N.Y.S.2d 600, 619 N.E.2d 678; People v. Graham, 117 A.D.2d 832, 834, 498 N.Y.S.2d 730, lv. denied 68 N.Y.2d 770, 506 N.Y.S.2d 1054, 498 N.E.2d 156). Similarly, County Court did not err in questioning the victim's psychiatrist outside of defendant's presence, as this questioning did not constitute a material stage of defendant's trial and the victim's psychiatric history did not "involve[ ] factual matters about which defendant might have peculiar knowledge that would be useful in advancing the defendant's or countering the People's position" (People v. Dokes, 79 N.Y.2d 656, 660, 584...