Opinion
March 8, 1996
Appeal from the Onondaga County Court, Burke, J.
Present — Lawton, J.P., Fallon, Doerr, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment of conviction arising out of the shooting death of his estranged paramour. We reject his contention that County Court abused its discretion in denying his request, made on the eve of trial, for an adjournment for neurological testing to support his mental incapacity defenses ( see, People v Farmer, 198 A.D.2d 805, 807, lv denied 83 N.Y.2d 804; People v Mims, 156 A.D.2d 958, 959, lv denied 75 N.Y.2d 968). The court had previously granted adjournments for that purpose. Furthermore, defendant has not shown any prejudice resulting from the denial of his motion ( see, People v Mims, supra, at 959).
Defendant also contends that the court erred in precluding testimony concerning his mental state prior to the shooting; defendant offered that testimony to support his defense of extreme emotional disturbance. Because that testimony was cumulative, any error in precluding portions of it was harmless ( see, People v Bruner, 222 A.D.2d 738; People v Eldridge, 221 A.D.2d 966). In view of the conflicting expert testimony regarding the mental state of defendant at the time of the shooting, the jury's rejection of his defense of extreme emotional disturbance is not against the weight of the evidence ( see, People v Drake, 216 A.D.2d 873; People v Carr, 207 A.D.2d 1011, lv denied 84 N.Y.2d 1010). The court's refusal to charge the jury on the defense of justification was proper because there is no reasonable view of the evidence to support that defense ( see, People v Reynoso, 73 N.Y.2d 816, 818; People v Thompson, 224 A.D.2d 950).
We further reject defendant's contention that the court's charge on reasonable doubt impermissibly lowered the People's burden of proof ( cf., People v Branch, 224 A.D.2d 926; People v Moore 216 A.D.2d 902). In defining reasonable doubt, the court stated: "It's not an imaginary or unsubstantial doubt, it is a doubt based on a reason." Here, the court used the problematic phrase "substantial doubt" in the negative and as a contrast to "imaginary", and thus it permissibly "inform[ed] the jury only that a reasonable doubt is something more than a speculative one" ( Victor v Nebraska, 511 U.S. 1, 20, reh denied sub nom. Sandoval v California, 511 U.S. 1101).
Finally, we reject the contention that comments by the prosecutor on summation deprived defendant of a fair trial ( see, People v Galloway, 54 N.Y.2d 396, 401; People v Mott, 94 A.D.2d 415, 418-419).