PEOPLE v. NOLAN (2018)

Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered July 27, 2016, convicting defendant, after a jury trial, of attempted murder in the second degree, burglary in the first degree (two counts) and attempted assault in the first and second degrees, and sentencing him to an aggregate term of 9 1/212 years, unanimously affirmed.

The court properly permitted the People to introduce portions of their psychiatric expert's videotaped interview of defendant.  Although defendant did not assert an affirmative psychiatric defense such as insanity, he presented psychiatric evidence in an effort to negate the element of intent.  This opened the door to the receipt, for limited purposes, of evidence of the People's expert's examination (see generally People v. Segal, 54 N.Y.2d 58, 444 N.Y.S.2d 588, 429 N.E.2d 107 [1981] ).  To the extent that defendant argues that CPL 60.55 limits the admissibility of this type of evidence to cases involving affirmative psychiatric defenses, that claim is unpreserved, and without merit in any event (see People v. Cobo, 245 A.D.2d 72, 666 N.Y.S.2d 123 [1st Dept. 1997], lv denied 91 N.Y.2d 1006, 676 N.Y.S.2d 134, 698 N.E.2d 963 [1998] ).  The interview did not improperly introduce new facts as evidence, and the People did not misuse the interview in their summation or otherwise.  Furthermore, this evidence could not have caused defendant any prejudice, particularly in light of the court's thorough limiting instructions, which the jury is presumed to have followed (see People v. Davis, 58 N.Y.2d 1102, 1104, 462 N.Y.S.2d 816, 449 N.E.2d 710 [1983] ).

The court providently exercised its discretion in precluding defendant from cross-examining the People's expert about his ability to form a legal conclusion as to whether defendant's cousin was criminally involved in the crimes at issue, in which defendant attacked his cousin's ex-husband.  This line of questioning was too remote from the issue of the expert's bias to warrant its admission (see People v. Thomas, 46 N.Y.2d 100, 105, 412 N.Y.S.2d 845, 385 N.E.2d 584 [1978], appeal dismissed 444 U.S. 891, 100 S.Ct. 197, 62 L.Ed.2d 127 [1979] ),

Defendant's constitutional arguments relating to the above-discussed issues, and all of his remaining claims of trial error, are unpreserved and we decline to review them in the interest of justice.  As an alternative holding, we also reject them on the merits.  We have also considered and rejected defendant's ineffective assistance of counsel claims relating to the issues we have found to be unpreserved (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

We perceive no basis for reducing the sentence.

We find no basis for enlarging the record to include matters relating to the recently commenced prosecution of defendant's cousin for her alleged role in this crime.  These matters are irrelevant to the issues raised on defendant's appeal.