The People of the State of New York, Respondent, v. Albert Polizinski, Jr., Appellant

The People of the State of New York, Respondent, v Albert Polizinski, Jr., Appellant. [671 NYS2d 1019] [MAJORITY] —Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rotker, J.), rendered March 7, 1988, convicting him of murder in the second degree (two counts) and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence. Ordered that the judgment is affirmed. After the defendant was found fit to stand trial, there was no evidence of changed circumstances to indicate that his mental status had deteriorated. Therefore, the trial court did not improvidently exercise its discretion in denying the defendant’s application for a further psychiatric examination pursuant to CPL article 730 to ascertain his competency (see, People v Mokrzycki, 216 AD2d 493; People v Greco, 177 AD2d 648; People v Savona, 176 AD2d 362). We do not agree with the defendant’s contention that the People did not prove his sanity beyond a reasonable doubt. At the time the instant offense was committed, the burden was on the People to disprove the defense of mental defect beyond a reasonable doubt (see, Penal Law former § 30.05, repealed by L 1984, ch 668; see also, People v McMillian, 174 AD2d 759). Where conflicting testimony is presented, the question of sanity is for the trier of fact, who has the right to accept or reject the opinion of any expert (see, People v Hicks, 125 AD2d 332, 333). Here, the trier of fact could have properly inferred from the conflicting evidence that the defendant was criminally responsible for his conduct when the crime in question was committed. Where, as here, there is an absence of a serious flaw in the testimony of the People’s expert, the determination of the trier of fact on the issue of sanity will not be disturbed (see, People v Hicks, supra). ■ The defendant’s remaining contentions, including those raised in his pro se supplemental brief, are either unpreserved for appellate review, based on matter dehors the record, or without merit. O’Brien, J. P., Sullivan, Pizzuto and Krausman, JJ., concur.