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

461
KA 09-00461
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSEPH J. THOMAS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Thomas R.
Morse, A.J.), rendered December 19, 2008. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree,
assault in the third degree, aggravated criminal contempt and criminal
contempt in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of, inter alia, burglary in the second degree
(Penal Law § 140.25 [2]) and aggravated criminal contempt (§ 215.52
[1]), for forcing his way into the apartment of the victim’s mother
and beating the victim with his fists and a metal rod. At the time of
the offenses, there was a valid order of protection in effect
prohibiting defendant from having contact with the victim. Defendant
contends that he is entitled to a new trial because County Court erred
in refusing to allow defense counsel to cross-examine the victim and
her mother about their alleged bipolar disorder. We reject that
contention. It is well settled that, absent a sufficient offer of
proof, cross-examination of a witness concerning his or her mental
illness may properly be disallowed (see People v Barner, 30 AD3d 1091,
1092, lv denied 7 NY3d 809; People v Middlebrooks, 300 AD2d 1142,
1143, lv denied 99 NY2d 630). Here, when asked for an offer of proof,
defense counsel stated that it was his client’s “belief” that the two
witnesses each suffered from bipolar disorder. Defense counsel
offered no basis for his client’s belief, and he stated that he did
not intend to call an expert witness to testify that bipolar disorder
can affect a person’s credibility or ability to recall events (see
generally Barner, 30 AD3d at 1092; Middlebrooks, 300 AD2d at 1143).

     In any event, even assuming, arguendo, that the court erred in
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                                                        KA 09-00461

refusing to allow defense counsel to cross-examine the witnesses
concerning their alleged mental illness, we conclude that any error is
harmless (see generally People v Crimmins, 36 NY2d 230, 241-242). The
victim’s testimony was corroborated by that of her mother, who was
present when the crimes were committed, as well as that of the
superintendent of the apartment building, who lived directly adjacent
to the victim’s mother. The superintendent testified that, after
hearing screaming and banging noises, he stepped into the common
hallway where he observed defendant fleeing from the apartment in
which the victim was located. Upon entering the apartment, the
superintendent saw that the victim was bleeding from her head. In
addition, shortly after the attack, defendant pinned a note to the
victim’s door acknowledging his guilt and seeking her forgiveness, and
he also made an admission to the police following his arrest. The
evidence of guilt is thus overwhelming, and there is no significant
probability that defendant otherwise would have been acquitted (see
id.).




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
