People v. Jones

• Decision Date: 07 May 1999
• Parties: 1999 N.Y. Slip Op. 4151 PEOPLE of the State of New York, Plaintiff-Respondent, v. Benjamin C. JONES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 366

690 N.Y.S.2d 366

1999 N.Y. Slip Op. 4151

PEOPLE of the State of New York, Plaintiff-Respondent, v. Benjamin C. JONES, Defendant-Appellant.

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

May 7, 1999.

Mary Good, Buffalo, for defendant-appellant.

Donna Milling, Buffalo, for plaintiff-respondent.

PRESENT: GREEN, J.P., LAWTON, WISNER, SCUDDER and CALLAHAN, JJ.

MEMORANDUM:

Defendant failed to preserve for our review his contention that County Court erred in admitting the testimony of the prosecution's expert witness (see, CPL 470.05 ). In any event, the testimony of the expert witness was "limited to his own perception of the truthfulness of the information the defendant provided * * * and was not a statement of the defendant's general credibility" (People v. Doczy, 210 A.D.2d 425, 426, 620 N.Y.S.2d 408, lv. denied 85 N.Y.2d 937, 627 N.Y.S.2d 999, 651 N.E.2d 924; cf., People v. Braun, 199 A.D.2d 993, 606 N.Y.S.2d 469, lv. denied 83 N.Y.2d 849, 612 N.Y.S.2d 381, 634 N.E.2d 982). Where, as here, there was conflicting expert evidence concerning criminal responsibility, the jury was free to accept or reject in whole or in part the opinion of any expert (see, People v. Irizarry, 238 A.D.2d 940, 941, 661 N.Y.S.2d 147, lv. denied 90 N.Y.2d 894, 662 N.Y.S.2d 437, 685 N.E.2d 218; People v. Smith, 217 A.D.2d 221, 234-235, 635 N.Y.S.2d 824, lv. denied 87 N.Y.2d 977, 642 N.Y.S.2d 207, 664 N.E.2d 1270). Thus, contrary to the contention of defendant, the verdict rejecting his defense that he suffered from a mental disease or defect is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672; People v. Irizarry, supra, at 940-941, 661 N.Y.S.2d 147).

The court properly denied defendant's pro se motion to set aside the verdict (see, CPL 330.30). Upon our review of the record, we conclude that defense counsel, who had no duty to support a motion that he determined to be without merit (see, People v. Vasquez, 70 N.Y.2d 1, 4, 516 N.Y.S.2d 921, 509 N.E.2d 934, rearg. denied 70 N.Y.2d 748, 519 N.Y.S.2d 1034, 514 N.E.2d 392), did not take a position adverse to his client. Thus, defendant was not entitled to the assignment of new counsel for the motion (cf., People v. Burton, 251 A.D.2d 1020, 674 N.Y.S.2d 560; People v. Chrysler, 233 A.D.2d 928, 649 N.Y.S.2d 566; People v. Singletary, 233 A.D.2d 849, 649 N.Y.S.2d 567). Furthermore, defendant was not denied effective assistance of counsel (see, People v. Flores, 84 N.Y.2d 184, 186-187, 615 N.Y.S.2d 662, 639 N.E.2d 19; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

We modify the judgment, however, by reducing the minimum term of incarceration from 7 1/2 to 5 years on each count to comply with Penal Law § 70.02 as it provided...