People v. Davis

38 A.D.2d 579, 328 N.Y.S.2d 332, 1971 N.Y. App. Div. LEXIS 2729

Opinion

Appeal by defendant from two judgments of the County Court, Nassau County both rendered May 4, 1970, one convicting him of sodomy in the first degree (on indictment No. 27851) and the other convicting him of rape in the first degree and other related crimes (on indictment No. 27932), upon a jury verdict (the two eases were tried together and separate concurrent sentences were imposed). Judgments affirmed. In our opinion the evidence adduced at the trial was sufficient to sustain the finding, implicit in the jury’s verdict of guilty, that the defense of insanity was disproved beyond a reasonable doubt. In view of defendant’s refusal to co-operate with the psychiatrist retained by the People to examine him with respect to his mental state at the time of the commission of the acts charged, we do not consider the consequent failure of the People to offer expert testimony to be fatal to the convictions. Since such testimony was not offered and since no apparent use was made by the People, at the trial, of the results of that abortive examination, we do not deem the denial of defense counsel's request to he present at such examination to be prejudicial to defendant (see Matter of Lee v. County Ct. of Erie County, 27 N Y 2d 432, 443-444). Martuscello, Acting P. J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.