Opinion
April 15, 1991
Appeal from the County Court, Westchester County (Lange, J.).
Ordered that the judgment is affirmed.
On April 3, 1986, the police observed the defendant sitting in an automobile, previously identified by make and license plate number as belonging to Jose Alfaro. Alfaro had been reported missing by his daughter two days earlier. The officers were aware that Alfaro had failed to report for work for two days, that he had failed to pick up a paycheck, and that his daughter had reported observing people she did not recognize driving his car. As the police approached the vehicle, the defendant exited. When the police told him to "hold it a second", he unsuccessfully attempted to flee. The blade of a screwdriver was protruding from the defendant's front pants pocket and an immediate frisk produced two screwdrivers and a knife which ultimately proved to belong to Alfaro. No ownership documentation for the vehicle was produced and the defendant was taken to the police station. After being advised of his Miranda rights, he claimed that he had bought the car from someone named "Charles". The defendant was issued summonses charging him with certain violations of the Vehicle and Traffic Law and then released.
The defendant was rearrested nine days later, on April 12, 1986, after Alfaro's body was found near the apartment of the defendant's long-time female companion. The defendant was again advised of his Miranda rights and he again repeated that he purchased Alfaro's car from Charles. However, when he was told that he had been seen driving Alfaro's vehicle several hours before he claimed to have purchased it, the defendant confessed to the police that he had killed Alfaro with a hammer on March 30, 1986, upon finding him in the bedroom with his long-time female companion. The defendant was charged, inter alia, with murder in the second degree. At trial, the defendant contended that he was laboring under extreme emotional disturbance at the time of the killing (see, Penal Law § 125.25 [a]).
Contrary to the defendant's contention, we conclude that denial of that branch of his omnibus motion which was for suppression of physical evidence seized during his encounter with the police on April 3, 1986, was proper. The police possessed grounds to stop the defendant and to make inquiry of him (see, CPL 140.50; People v. De Bour, 40 N.Y.2d 210) and his flight justified his temporary detention for the purposes of further inquiry (see, People v. Leung, 68 N.Y.2d 734, 736; People v. Chapman, 103 A.D.2d 494, 497). Moreover, the police officer's self-protective pat-down search for weapons was warranted under the circumstances (cf., CPL 140.50; see also, Terry v. Ohio, 392 U.S. 1). In any event, any error in admitting into evidence the statement made by the defendant on April 3, 1986, was rendered harmless by his repetition of that statement to the police, prior to his admission of guilt, when he was rearrested nine days later (cf., Chapman v. California, 386 U.S. 18; People v. Chapple, 38 N.Y.2d 112).
We also find that the trial court properly precluded the defense counsel from eliciting the defendant's psychiatric expert's opinion as to whether the defendant was capable of forming the intent to kill on the date of the crime. Whether the defendant intended to kill the victim was a question solely within the province of the jury (cf., People v. Cronin, 60 N.Y.2d 430). To the extent that it was relevant, the expert was permitted to testify at length concerning the defendant's emotional state (see, Penal Law § 125.25 [a]) at the time of the crime (see, People v. De Sarno, 121 A.D.2d 651). Additionally, the court's charge on reasonable doubt, which included the phrase "sound reason", conveyed to the jury the distinction between reasonable doubt and a vague or imaginary doubt and was not improper (see, People v. Malloy, 55 N.Y.2d 296, 303, cert denied 459 U.S. 847; People v. Jones, 27 N.Y.2d 222, 227; People v Baucom, 154 A.D.2d 688).
We have examined the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be either unpreserved for appellate review or without merit. Kooper, J.P., Lawrence, Harwood and Balletta, JJ., concur.