People v. Nieves

Thompson, J. P.,

dissents and votes to affirm the judgment, with the following memorandum: Although I agree with my colleagues that the court improvidently exercised its discretion in permitting the prosecutor to inquire into the defendant’s psychiatric history, I nevertheless conclude that, on the record before us, there was no significant probability that had that evidence been excluded, the jury would have acquitted the defendant (see, People v Crimmins, 36 NY2d 230, 236; see also, People v Reddick, 65 NY2d 835; People v Gannaway, 170 AD2d 529). The record reveals that the defendant—who had been living with the complainant—accused the complainant of stealing her property, and then, after a verbal confrontation, attacked the complainant and the complainant’s companion with a kitchen knife. Both the complainant and her companion provided consistent, credible accounts of the incident. Moreover, the arresting officer’s description of the scene upon his arrival at the complainant’s apartment further corroborated the testimony offered by the People’s witnesses. While the prosecutor did inquire subsequently into the defendant’s psychiatric history, his inquiries were brief and elicited neither specific treatment histories nor the factual incidents underlying the defendant’s treatment. Further, the candid and forthright manner in which the defendant described her treatment as the product of a "violent household”, which she had now "put in the past”, buttressed her credibility and served to dilute the prejudice, if any, which the prosecutor’s examination might have produced. In light of the foregoing and considering the strength of the People’s case, I conclude that *281there was no significant probability that the errors affected the result at bar (see, People v Crimmins, supra, at 242).

Furthermore, contrary to the defendant’s contention, the court did not commit reversible error by failing to charge that, for purposes of her justification defense, she was under no duty to retreat if she was attacked in her own dwelling (see, Penal Law § 35.15 [1], [2]; People v White, 127 Misc 2d 219, 222). The defendant’s own testimony, the only evidence consistent with a justification defense, did not raise the issue of retreat and the People did not try to negate the defendant’s justification defense on any theory that she could have retreated in complete safety. Consequently, there was no significant probability that the jury improperly inferred a duty to retreat in the absence of a charge to the contrary (cf., People v O’Brien, 88 AD2d 1001; People v McCurdy, 86 AD2d 493, 497-498). It was not error, therefore, to deny the requested charge (see, 1 CJI[NY] 35.15 [2] [a], at 871, n).