Opinion
December 19, 1994
Appeal from the Supreme Court, Queens County (Rotker, J.).
Ordered that the judgment is modified, on the law, by providing that the sentence imposed upon the conviction for criminal possession of a weapon in the second degree shall run concurrently with the consecutive terms imposed upon the convictions for manslaughter in the first degree; as so modified, the judgment is affirmed.
The defendant's conviction arose from a barroom fight wherein he shot two men in the head, killing them. Contrary to his contention on appeal, we find no error in the trial court's ruling precluding inquiry into the reputation of one of the victims as a bar brawler. Evidence of a victim's quarrelsome or violent nature is admissible only to support a justification defense where the defendant is aware of the reputation (see, People v Miller, 39 N.Y.2d 543; People v Rodawald, 177 N.Y. 408). Here, the defendant did not present a justification defense (see, People v Napolitano, 173 A.D.2d 648; People v Jones, 140 A.D.2d 627) and the victim's reputation was not relevant to his defenses of insanity or extreme emotional disturbance. In any event, there was no evidence that the defendant was aware of the victim's reputation (see, People v Pizzaro, 184 A.D.2d 448; People v Hutchinson, 141 A.D.2d 762). Indeed, the defendant testified that he did not know the victims prior to this incident.
The defendant also claims he was denied a fair trial when the court permitted the People's expert psychiatric witness to render an opinion as to the defendant's credibility. However, we find that the court properly "balance[d] the jury's need to be informed of the basis for the expert's opinion against the prejudice to defendant resulting from expert testimony that defendant was not credible" (People v Braun, 199 A.D.2d 993; cf., People v Graydon, 43 A.D.2d 842). The psychiatrist's "opinion testimony" was limited to his own perception of the truthfulness of the information the defendant provided at the psychiatric interview and was not a statement of the defendant's general credibility. It was therefore admissible to explain the psychiatrist's diagnosis and opinion as to the defendant's mental condition at the time of the crime (see, CPL 60.55; Matter of Lee v County Ct., 27 N.Y.2d 432). Furthermore, the court instructed the jury that the psychiatrist's testimony related only to the issue of the insanity defense (see, CPL 60.55) and that they were the sole arbiters of the credibility of all witnesses, including the defendant (see, People v Ciaccio, 47 N.Y.2d 431).
The sentence imposed upon conviction for criminal possession of a weapon in the second degree must run concurrently with the sentences imposed upon the manslaughter convictions since the defendant's possession of the gun and his shooting of each victim were committed through a single act (see, Penal Law § 70.25; People v Condon, 202 A.D.2d 515; People v Jenkins, 176 A.D.2d 348). The sentence is modified accordingly.
The defendant's remaining contentions are without merit. Mangano, P.J., Thompson, Bracken and Altman, JJ., concur.