        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

752
KA 10-01591
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARYL HAMM, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered July 16, 2010. The judgment convicted
defendant, upon a nonjury verdict, of assault in the first degree and
assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating that part convicting
defendant of assault in the second degree and dismissing count three
of the indictment and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
following a nonjury trial, of assault in the first degree (Penal Law §
120.10 [1]) and assault in the second degree (§ 120.05 [1]). We
reject defendant’s contention that certain evidentiary rulings made by
Supreme Court deprived him of the right to present a defense and the
right to a fair trial. The court did not abuse its discretion in
determining that defendant’s proposed cross-examination of the
victim’s father “was too speculative to establish a motive for
fabrication” (People v Poole, 55 AD3d 1349, 1350, lv denied 11 NY3d
929). Nor did the court improperly curtail the cross-examination of
another prosecution witness with respect to the sworn statement made
by her the day after the assault. That statement was not inconsistent
with her trial testimony, and thus there was no basis for impeachment
of her trial testimony based on that statement (see People v Wise, 176
AD2d 595, 596, lv denied 79 NY2d 866; People v Jones, 136 AD2d 740,
741, lv denied 71 NY2d 969).

     Defendant further contends that the verdict is against the weight
of the evidence because the court erred in rejecting his affirmative
defense that he lacked criminal responsibility by reason of mental
disease or defect (see Penal Law § 40.15). We reject that contention.
“Where, as here, there was conflicting expert testimony on the issue
                                 -2-                          752
                                                        KA 10-01591

of defendant’s mental condition, the determination of the trier of
fact to accept or reject the opinion of an expert, in whole or in
part, is entitled to deference” (People v Amin, 294 AD2d 863, 863, lv
denied 98 NY2d 672, 674; see People v Stoffel, 17 AD3d 992, 993, lv
denied 5 NY3d 795).

     As the People correctly concede, however, assault in the second
degree under Penal Law § 120.05 (1) is a lesser included offense of
assault in the first degree under Penal Law § 120.10 (1) (see People v
Basciano, 54 AD3d 637), and thus should have been considered only in
the alternative as a lesser inclusory concurrent count of assault in
the first degree (see CPL 300.40 [3] [b]; People v Johnson, 81 AD3d
1428, 1429, lv denied 16 NY3d 896). We therefore modify the judgment
accordingly. The sentence is not otherwise unduly harsh or severe.




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
