PEOPLE v. COBO (1997)

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered January 23, 1995, convicting defendant, after a jury trial, of seven counts of murder in the second degree, and eight counts of robbery in the first degree, and sentencing him to four consecutive terms of 25 years to life, to run concurrently with three concurrent terms of 25 years to life and eight concurrent terms of 12 1/2 to 25 years, unanimously affirmed.

 Defendant's severance motion was properly denied.   The charges were properly joinable under CPL 200.20(2)(c) on the ground that the crimes charged, although based on separate criminal transactions, are defined by the same or similar statutory provisions, as well as under CPL 200.20(2)(b), which mandates the joint trial of separate crimes where, as herein, proof of one crime would be material and admissible as evidence in chief upon a trial of the other crime.

 Under the totality of the circumstances, defendant was properly impeached by means of statements he made to psychologists.   We do not read CPL 60.55(2) as precluding any use of such statements in the absence of an insanity defense pursuant to Penal Law § 40.15. Here, defendant instituted the procedures for a proposed psychiatric defense under CPL 250.10 and, in his opening statement and his testimony, raised a defense involving a claim of battered spouse or domestic partner syndrome falling within the scope of a “mental disease or defect” defense contemplated by CPL 250.10 (People v. Herrera, 219 A.D.2d 511, 512, 631 N.Y.S.2d 660, lv. denied 87 N.Y.2d 847, 638 N.Y.S.2d 605, 661 N.E.2d 1387;  see also, People v. Dawn Maria C., 105 A.D.2d 325, 484 N.Y.S.2d 328, affd. 67 N.Y.2d 625, 499 N.Y.S.2d 663, 490 N.E.2d 530;  People v. Al-Kanani, 33 N.Y.2d 260, 351 N.Y.S.2d 969, 307 N.E.2d 43, cert. denied 417 U.S. 916, 94 S.Ct. 2619, 41 L.Ed.2d 220).

 The trial court appropriately exercised its discretion in modifying its Sandoval ruling to permit limited inquiry into the underlying facts of a prior robbery conviction since defendant's contradictory testimony regarding the nature of those underlying facts affected essential credibility issues (People v. Fardan, 82 N.Y.2d 638, 646, 607 N.Y.S.2d 220, 628 N.E.2d 41;  People v. Santiago, 169 A.D.2d 557, 564 N.Y.S.2d 412, lv. denied 77 N.Y.2d 1000, 571 N.Y.S.2d 926, 575 N.E.2d 412).

 Defendant did not preserve his current claims of error regarding questions posed to him by the prosecutor on cross-examination that allegedly suggested tailored testimony (CPL 470.05[2];  People v. Sims, 232 A.D.2d 237, 648 N.Y.S.2d 542, lv. denied 89 N.Y.2d 929, 654 N.Y.S.2d 732, 677 N.E.2d 304).   In any event, the questioning was proper to show that inconsistencies between defendant's prior statements and his trial testimony were not, as defendant testified, attributable to mistakes or omissions in the recording of his prior statements, but rather were the result of an effort by defendant to harmonize his trial testimony with forensic evidence presented by the People.   In the particular circumstances presented, the challenged questioning was not “of such a character as would naturally and reasonably be interpreted by the jury as penalizing the defendant for exercising his right to testify, or to confront the People's witnesses” (People v. Sims, supra, at 238, 648 N.Y.S.2d 542, citing People v. Wirts, 178 A.D.2d 165, 166, 577 N.Y.S.2d 24, lv. denied 79 N.Y.2d 924, 582 N.Y.S.2d 84, 590 N.E.2d 1212).

In light of the overwhelming evidence against defendant, the prosecutor's summation comments complained of by defendant did not deprive defendant of a fair trial, particularly in light of the court's instructions to the jurors that sympathy or prejudice had no place in their deliberations (see, People v. D'Alessandro, 184 A.D.2d 114, 591 N.Y.S.2d 1001, lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977).

MEMORANDUM DECISION.