Opinion
Argued January 10, 1985
Decided February 7, 1985
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Thomas Dickens, J.
Mark J. Elder and Mary Rowen Obelkevich for appellant.
Robert M. Morgenthau, District Attorney ( Anne Beane Rudman and Mark Dwyer of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant held three people hostage in an apartment building lobby by threatening them with a large knife while demanding that the police secure him transportation to Puerto Rico where his mother lived. While this behavior may have been bizarre and unlikely to succeed, the jury could still conclude based on Dr. Herman's testimony, beyond a reasonable doubt, that defendant had substantial capacity to know or appreciate the nature and consequences of his conduct and that the conduct was wrong ( cf. People v Wofford, 46 N.Y.2d 962).
Additionally we cannot conclude that defendant did not receive the effective assistance of counsel. Defendant asserts that there were several errors in the court's charge with respect to his insanity defense to which his trial counsel failed to object. Beyond the fact that defendant failed to raise this claim in a posttrial motion (CPL 440.10), the assertion ignores the finding of fact made by the trial court in settling the transcript, and affirmed by the Appellate Division, that the critical errors revealed by the transcript were the result of a stenographer's mistakes and were not actually in the court's charge. Defendant's further contention that his lawyer should not have relied almost exclusively on an insanity defense is merely an attempt to second-guess what may have been a sound strategy, even if unsuccessful, in light of the clear proof with respect to all the elements of kidnapping and unlawful imprisonment ( see, People v Baldi, 54 N.Y.2d 137).
Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE and ALEXANDER concur.
Order affirmed in a memorandum.