Opinion
January 13, 1986
Appeal from the Supreme Court, Kings County (Ramirez, J.).
Judgment modified, on the law, by vacating the sentence and persistent violent felony offender adjudication with respect to the robbery count and substituting therefor an adjudication that defendant is a second violent felony offender. As so modified, judgment affirmed, and matter remitted to the Supreme Court, Kings County, for resentence on the robbery count.
The court did not abuse its discretion in refusing to admit certain expert psychiatric testimony (see, People v Cronin, 60 N.Y.2d 430, 433; Rodriquez v Board of Educ., 104 A.D.2d 978, 979). The expert's conclusion, upon an offer of proof, was merely that "[i]t is possible that [defendant] could have been acting under some illusion or delusion at the time" of the incident, and that this possibility was "more likely" if this had happened before (emphasis added). It is well settled that expert opinions which are "contingent, speculative, or merely possible" lack probative force and are, therefore, inadmissible (Matott v Ward, 48 N.Y.2d 455, 461; Strohm v New York, Lake Erie W.R.R. Co., 96 N.Y. 305, 306; see also, People v Bethune, 105 A.D.2d 262, 271). The proposed expert opinion did not reflect an acceptable degree of certainty (see, People v Allweiss, 48 N.Y.2d 40, 50; People v Bethune, supra). In any event, the expert's testimony would have been cumulative in nature (see, People v Kehn, 109 A.D.2d 912, 914).
The People concede, however, that defendant was improperly adjudicated a persistent violent felony offender with respect to the robbery count (Penal Law § 70.08), and that the matter should, therefore, be remitted for resentencing as indicated (see, People v Taylor, 103 A.D.2d 853, 854).
We have examined defendant's remaining contentions and find them to be without merit. Gibbons, J.P., Thompson, Brown and Eiber, JJ., concur.