Opinion
April 26, 1993
Appeal from the Supreme Court, Kings County (Feldman J.).
Ordered that the judgment is affirmed.
It is well established that where conflicting expert testimony is presented, the question of the defendant's sanity rests with the trier of fact, which may accept or reject the opinion of the expert witness and, in the absence of a serious flaw in the testimony of the People's expert, the fact finding of sanity will not be disturbed (see, People v Hull, 162 A.D.2d 550; People v Ludwigsen, 159 A.D.2d 591; People v Enchautegui, 156 A.D.2d 461; People v Briecke, 143 A.D.2d 1025; People v Bruetsch, 137 A.D.2d 823; People v Hicks, 125 A.D.2d 332; People v Amaya, 122 A.D.2d 888). In the case at bar, no such flaw exists and we find that the jury's verdict should not be disturbed.
The defendant also contends that it was reversible error for the trial court to submit a verdict sheet which indicated the order in which the jury was to deliberate and which included the names of the victims on the various kidnapping charges. As the defendant's only objection was to the parenthetical phrases "felony murder" and "depraved indifference", which references were removed before the verdict sheet was given to the jury, the defendant has not preserved this issue for appellate review (see, People v Hernandez, 172 A.D.2d 560; People v Ribowsky, 156 A.D.2d 726, affd 77 N.Y.2d 284; People v Gray, 154 A.D.2d 478; People v Mathis, 150 A.D.2d 613; People v Lugo, 150 A.D.2d 502; People v Rodriguez, 144 A.D.2d 598; People v Decambre, 143 A.D.2d 927; People v Battles, 141 A.D.2d 748; People v Williams, 138 A.D.2d 430; People v Monroe, 135 A.D.2d 741). We decline to review the propriety of the verdict sheet in the exercise of our interest of justice jurisdiction.
We further find that the court properly declined to charge criminally negligent homicide as a lesser-included offense of manslaughter in the second degree, since there is no reasonable view of the evidence which would support a finding that the defendant was not aware of the substantial and unjustifiable risk of death attendant in holding a loaded and cocked gun to the victim's neck (see, CPL 300.50).
We have examined the defendant's remaining contentions and find them to be unpreserved for appellate review or without merit. Sullivan, J.P., Balletta, Lawrence and Eiber, JJ., concur.