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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Eric E. STOFFEL, Defendant-Appellant.

Decided: April 29, 2005

PRESENT:  GREEN, J.P., SCUDDER, GORSKI, MARTOCHE, AND PINE, JJ. Ronald C. Valentine, Public Defender, Lyons (Peter J. Pullano of Counsel), for Defendant-Appellant. Richard M. Healy, District Attorney, Lyons (Melvin Bressler of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05[3] ), reckless endangerment in the first degree (§ 120.25) and criminal mischief in the second degree (§ 145.10).   Defendant asserted the affirmative defense of insanity, claiming that, because of his delusional disorder and paranoid schizophrenia, he lacked substantial capacity to know that his conduct was wrong (see § 40.15).   Although defendant offered substantial proof that he had suffered from a delusional disorder for years, and defendant presented proof from an expert psychiatrist that he was delusional on the night that he committed the crimes underlying his conviction, we nonetheless reject defendant's contention that the verdict is against the weight of the evidence.   The People presented expert proof that, despite operating under delusions when he fired 59 shots at the police and his neighbors, defendant was able to understand that he was shooting at police and that his conduct was wrong.   The “resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the trier of fact, who saw and heard the witnesses[,] ․ [and][i]ts determination should be accorded great weight on appeal” (People v. Davis, 191 A.D.2d 705, 706, 595 N.Y.S.2d 792;  see People v. Walker, 191 A.D.2d 603, 604, 595 N.Y.S.2d 213, lv. denied 81 N.Y.2d 1021, 1022, 600 N.Y.S.2d 210, 616 N.E.2d 867;  see also People v. Williams, 291 A.D.2d 897, 898, 737 N.Y.S.2d 737, lv. denied 97 N.Y.2d 763, 742 N.Y.S.2d 624, 769 N.E.2d 370;  People v. Hernandez, 288 A.D.2d 489, 490, 733 N.Y.S.2d 886, lv. denied 97 N.Y.2d 729, 740 N.Y.S.2d 702, 767 N.E.2d 159).  “ Where, as here, there is conflicting expert testimony, the question of sanity is for the trier of fact, which has the right to accept or reject, in whole or in part, the opinion of any expert” (People v. Justice, 173 A.D.2d 144, 146, 579 N.Y.S.2d 502).

 We also reject the contention of defendant that County Court erred in denying his motion to suppress the statements he made to police after he was advised of his Miranda rights.   Because defendant's mental health was in question, the inquiry is whether defendant could understand the Miranda warnings and make a knowing, voluntary and intelligent waiver of his rights (see People v. Pond, 217 A.D.2d 721, 722, 629 N.Y.S.2d 111).   The answers given by defendant to the questions the police asked him indicated that he understood his rights and intended to waive them.   Under the circumstances, the court did not err in denying the suppression motion (see id. at 722-723, 629 N.Y.S.2d 111).

 Defendant did not preserve for our review his contention that the court's instruction to the jury regarding the insanity defense was improper (see CPL 470.05[2];  People v. Robinson, 88 N.Y.2d 1001, 1002, 648 N.Y.S.2d 869, 671 N.E.2d 1266).   In any event, because the instruction placed a burden of proof on the People rather than on defendant (cf. generally Penal Law § 40.15), the error is harmless (see People v. Crimmins, 38 N.Y.2d 407, 411-412, 381 N.Y.S.2d 1, 343 N.E.2d 719).

The sentence imposed is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.