Appeal from a judgment of the County Court of Albany County (Clyne, J.), rendered August 1,1983, upon a verdict convicting defendant of the crime of murder in the second degree.
On April 15, 1983, defendant and Catherine Price were arrested on a consрiracy charge unrelated to the instant case. During interrogation on that charge, it was discovered that defendant, Catherine Price, Kenneth Baird and Nettie Price were involved in the arson of a house on March 9,1983 in which a baby, Robert Hornsey, Jr., was tragically killed. Defendant’s conviction for second degree murder (felony murder), resulting from his alleged participation in the arson, is the subject of this appeal.
The events leading to the commission of the arson revolved around various problems between a daughter of Nettie Price and the children of a neighboring family in the City of Watervliet. After being advised of his rights, defendant signed a written confession wherein he stated, inter alia, that “[i]t was agreed upon that Ken Baird would set a small fire at the rear of the house and Cathy and Nettie Price would pay for the job in the amount of $50 to Ken”. To this end, defendant and Baird used a hose from a washing machine to siphon gаsoline from Catherine Price’s car. The gasoline was then mixed with lighter fluid in a vinegar bottle. Thereafter, defendant and Baird set out to start
Defendant, after denial of his motion for a severance, was tried together with Baird and convicted of murder in the second degree, the only count of the indictment submitted to the jury. Although Catherine Price was originаlly tried with defendant and Baird, midway through the trial she pleaded guilty to a charge of attempted murder in return for a reduced sentence and testified, without objection, for the People. Apparently, Nettie Price was grantеd a separate trial. Defendant was sentenced to an indeterminate sentence of 25 years to life. This appeal by defendant ensued.
Defendant’s first argument is that he was deprived of a fair trial by reason of the triаl court’s denial of his motion for a severance, “by reason of * * * People v LaBelle,
Where, as here, defendant’s and Baird’s confessions contain the same material facts, there is “no significant risk that either defendant would be improperly prejudiced by admission of his codefendant’s confession” (People v Safian,
The fact that defendant was not permitted to introduce two letters sent to the court by codefendant Baird, which tended to exculpate defendant, or that these letters were received by the Trial Judge, does not change the result. To accept defendant’s argument that the Trial Judge should have recusеd himself by reason of having received Baird’s letters directly would permit a defendant to remove judges at whim. Therefore, such a showing does not suffice to establish that a judge is interested in the case
As for precluding defendant from introducing Baird’s letters at trial, it is well established that declarations against penal interest are an exception to the hearsay rule (People v Brown,
Defendant next asserts that the trial court abused its discretion by denying his motion to extend the time to serve and file a notice of intent to proffer psychiatric evidence. In this regard, CPL 250.10 (2) provides that: “Psychiatric evidence is not admissible upon a trial unless the defendant serves upon the people and files with the сourt a written notice of his intention to present psychiatric evidence. Such notice must be served and filed before trial and not more than thirty days after entry of the plea of not guilty to the indictment. In the interest of justice and for good cause shown, however, the court may permit such service and filing to be made at any later time prior to the close of the evidence.” In this case, defendant pleaded not guilty on April 22, 1983 and did not serve and file a written notice of his intent to present psychiatric evidence at trial until July 11, 1983, the first day of trial. Accordingly, since the notice was not served and filed within 30 days of his plea of not guilty, the issue on appeal distills to a consideration of whether the trial court abused its discretion in denying defendant’s application to extend the time to serve and file his notice.
In his affidavit in support of defendant’s application, defendant’s attorney stated that his client’s mental condition did not become known to him until near the end of the suppression hearing, held on June 30 and July 1,1983. When asked by the trial court on July 11, 1983 if he actually had any psychiatric evidence which would support a defense basеd upon mental disease or defect, defense counsel stated that he did not. Counsel explained that he needed a subpoena to get defendant’s medical
After the Peоple had rested, defendant presented a report prepared by a psychiatrist, Dr. Peter Mansky, who stated that “it seems likely” defendant has one of several psychiatric illnesses.
Under the circumstances presented here, and particularly upon defendant’s failure to substantiate in any meaningful manner a defense based on mental disease or defect despite being given ample opportunity to do so, we are unable to find that the trial court abused its discretion in denying defеndant’s application. We note that in Ronson v Commissioner of Correction (
Defendant’s next and primary contention is that he was prejudiced by the plea bargain which took Cаtherine Price out of the case and required her to testify against him. This contention must be rejected.
Before Catherine Price testified, the trial court instructed the jury that she was “out of the case” and that “[y]ou were not to concern yourself with it further”. Defendant made no objection and did not request further instruction. Further, defendant
Defendant’s next contention is that the prosecutor’s cross-examination of him with respect to his experience in the Vietnam War with “fire bombs” exceeded the scope of direct and, as such, constituted reversible error. The record, however, reveals that the questions contested herein were not objected to at trial. Accordingly, a review of this issue on the law is foreclosed (People v Jones,
Turning to defendant’s assertion that the prosecutor’s remarks upon summation (i.e., referring to facts outside the record) constituted reversible еrror, we find that the trial court’s rulings, which sustained defendant’s objections, together with its instructions to the jury, ameliorated any prejudicial impact of the statements on defendant (see, People v Williams,
Finally, contrary to defendant’s assertion, we find that the felony murder charge was properly submitted to the jury. The People were not required to prove defendant’s intent to kill the Hornsey baby. Rather, all that was required was that the People prove that defendant aided Baird in setting fire to the house, thereby resulting in the death of the infant (Penal Law § 125.25 [3]; see, People v Miller,
Judgment affirmed. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.
Notes
Specifically, Dr. Mansky opined that: “Among the differential diagnosis would be (1) anti-sociаl personality disorder; (2) manic depressive illness with secondary anti-social disorder; (3) post traumatic stress syndrome. It cannot be ruled out that Mr. Miller has these disorders without examination of his psychiatric records and his present mental status.”