| People v Inesti |
| 2012 NY Slip Op 03959 [95 AD3d 690] |
| May 22, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v MarkInesti, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Britta Gilmore of counsel), forrespondent.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered February 25,2010, convicting defendant, after a nonjury trial, of robbery in the first degree (two counts),robbery in the second degree, assault in the second degree (two counts) and criminal possessionof a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to anaggregate term of 20 years to life, unanimously affirmed.
Defendant did not preserve his challenges to the sufficiency of the evidence, and we declineto review them in the interest of justice. As an alternative holding, we find that the verdict wasbased on legally sufficient evidence. We further find that the verdict was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]).
The court, sitting as trier of fact, properly rejected defendant's psychiatric defense, in whichhe asserted that, as the result of mental illness, he lacked the intent to commit robbery. Althoughdefendant had a background of psychiatric treatment, he had a history of feigning or exaggeratingpsychiatric symptoms. Defendant's expert psychologist was thoroughly impeached, and the courthad ample basis upon which to reject his testimony. Furthermore, although defendant testifiedthat at the time of the crime he was fleeing from men with firearms and from demons, andperforming rituals with a knife to ward the demons off, none of the eyewitnesses to the crimedescribed any bizarre behavior by defendant, and defendant never reported this version of theincident to his own expert psychologist. Accordingly, nothing in the record casts doubt ondefendant's ability to form the intent to commit robbery.
Defendant's other challenges to the sufficiency and weight of the evidence are unavailing.The trier of fact could have reasonably concluded that when defendant fled with a bag of stolenmerchandise, stopped, turned around, opened a gravity knife, and said to the pursuing storemanager, "Come on, come on," defendant threatened the use of a dangerous instrument (see People v Boisseau, 33 AD3d568 [2006], lv denied 8 NY3d 844 [2007]), thus supporting the first-degree robberyconviction (see Penal Law § 160.15 [3]). Defendant's alternative explanation ofthis behavior is without merit. With respect to the convictions requiring proof of physical injury,there was ample evidence to support the conclusion that the police lieutenant's injury caused him"more than slight or trivial pain" (Peoplev Chiddick, 8 NY3d 445, 447[*2][2007]).
The court correctly permitted the People to rebut defendant's psychiatric defense byintroducing tape recordings of telephone calls made by defendant while incarcerated, in which hedid not exhibit any indicia of mental illness. These conversations were relevant and tended todisprove the psychiatric defense, particularly since an important basis for defendant's expert'sopinion was the expert's examination of defendant during the same time period as the phonecalls. The possibility that defendant's mental condition might vary from time to time went to theweight to be accorded the rebuttal evidence, rather than its admissibility.
Defendant's constitutional challenge to his sentencing as a persistent violent felony offenderis without merit (see People v Bell,15 NY3d 935 [2010], cert denied 563 US —, 131 S Ct 2885 [2011]).Concur—Tom, J.P., Sweeny, Renwick, Freedman and Abdus-Salaam, JJ.