Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS052751
McAdams, J.
Defendant Houston was acquitted by a jury of misdemeanor battery but convicted of felony infliction of corporal injury on a spouse and felony assault (two counts). (Pen. Code §§ 242, 273.5, subd. (a), 245, subd. (a)(1).) The jury also made a special finding that the defendant used a knife in the commission of both assaults, and returned guilty verdicts on the lesser included offense of misdemeanor assault as to both of the felony assaults. (§ 240.) Defendant was placed on probation on various terms and conditions including service of a county jail sentence. On appeal, defendant contends that the trial court erroneously (1) denied her motions for funds to retain the services of a Battered Women’s Syndrome (BWS) expert; (2) denied her motion for a new trial on related grounds; (3) accepted verdicts on two counts of assault with a deadly weapon arising from a single incident; (4) stayed the convictions of the lesser included assault offenses instead of striking them; and (5) ordered her to pay the probation costs as a condition of probation. We modify the judgment to strike the convictions for the lesser included offenses and delete the probation condition that defendant pay for probation costs; however, we affirm the order that defendant pay such costs and affirm the judgment as modified.
Unless otherwise indicated, all statutory references are to the Penal Code.
STATEMENT OF FACTS
The Prosecution Case
At the time of trial, Noel Cosseboom, the complaining witness, and defendant were going through a divorce. On September 21, 2005, defendant, her daughter Amy Nunes, and Cosseboom were living in Salinas. On that day, Cosseboom had one beer with friends after work before heading home. Defendant called him while he was on his way home and he suspected from her tone of voice that she was under the influence of alcohol or drugs, even though she had been trying to stop using them. When Cosseboom arrived home he accused her of taking pills; this upset defendant, who denied it. Cosseboom was sitting at the dining room table changing his shoes and socks during this discussion when she attempted to hit Cosseboom on the head with a crystal fruit bowl. Cosseboom reached up and grabbed defendant’s wrists with his hands. He directed her momentum to the floor and held her down. Defendant was flailing and kicking, trying to hit him, so he held her by the neck to subdue her. Cosseboom was sitting on top of defendant. He begged her to stop fighting him, and she did. He got up and went to the bathroom.
Cosseboom washed his hands and tried to calm himself. He came out of the bathroom a minute later. Defendant came out of the kitchen with a knife in her fist held out in front of her. She jabbed at him with the knife as he backed away. She chased him around the dining room table and cut him on the hand as he tried to deflect her jabs. She also stabbed him once in the abdomen and then stopped. Cosseboom did not think “she really meant to stab me, just trying to make a point or something.” Then she went into their bedroom and started packing an overnight bag.
Cosseboom was bleeding but “[n]ot too bad.” He did not call the police; instead, he called Nunes. She arrived within five minutes. Nunes confronted her mother about a bottle of pills and tried to get the bottle away from her. The two wrestled and fell to the ground. At that point, Cosseboom called 911. Nunes succeeded in taking the bottle of pills away from her mother and the altercation stopped. Defendant grabbed the bag she had packed and left the house.
Cosseboom and Nunes stayed at the house to await the police. When the police arrived, Cosseboom gave a statement about the incident and was arrested. He was taken to the police station and then to the hospital where he underwent exploratory surgery for the stab wound.
Nunes confirmed that Cosseboom called her and that after she arrived she tried to take a bottle of pills away from her mother. They struggled with each other for control of the bottle. They fell over each other, and the struggle stopped. Cosseboom helped them get up.
Nunes noticed that Cosseboom was bleeding from the stomach. From what she could tell, Cosseboom had not been drinking.
Salinas Police Officer Valentin Paredez responded to the 911 call and spoke with Cosseboom and Nunes. In the bedroom, Cosseboom pointed out a steak knife, which Paredez collected as evidence.
Paredez came in contact with defendant on the streets of Salinas approximately one-half hour to one hour after he first contacted Cosseboom and Nunes. At that time, defendant appeared to be under the influence of alcohol. At Paredez’s direction, photos were taken of defendant. They showed red marks on defendant’s neck. Paredez saw no bruises in addition to the red marks. The photos also showed a minor scratch on defendant’s chin as well as bruises on the upper insides of defendant’s arms and in the wrist area. At that time, it appeared to him that defendant weighed about 100 pounds.
The Defense Case
Defendant testified on her own behalf. Defendant admitted that on September 21, 2005, between 3:00 and 3:30 p.m., just before Cosseboom came home, she consumed “probably three quarters of [a bottle of champagne] and three or four glasses.” The day before, she had taken a prescription medication for migraines, so that was “in [her] system” too. She had called Cosseboom at work, and they got into an argument on the phone because he could tell she had been drinking. When Cosseboom came home, he was “crazy angry” at her, and he looked like he had been drinking as well which was a “daily event.” He walked in the door yelling at her. She started “talking back” to him and he “sparked back.” The argument was about her drinking, the messy state of the house and her inability to hold down a job. She was sitting at the dining table and Cosseboom “just came for me. And he shoved me out of the chair.” She fell to the floor, taking a platter of avocados down with her. Cosseboom jumped on top of her, sat on her and put his hands around her neck with both hands and squeezed hard. She thought he was going to kill her. She had been married to Cosseboom for 10 years and she had never seen him look so scary. She was kicking and scratching at him because she couldn’t breathe. He was big and strong and she weighed 115 pounds. She started to black out and stopped kicking. Then Cosseboom got off her.
She panicked and ran into the kitchen. She was afraid for her life. There was a knife on the counter and she grabbed it because she was afraid. She held it out in front of her and swung it while Cosseboom yelled at her and reached for her. She thought he was going to try to grab her by the throat again and she cut his hand. Cosseboom grabbed a lawn chair cushion from the dining room and started for her again. She swung the knife around to keep him away from her and stuck him in the stomach. Cosseboom backed up then. She kept the knife and ran into the bedroom because there was a lock on the door. She put the knife down on the dresser or nightstand when she heard her daughter’s truck drive up, because she knew Cosseboom would not hurt her in front of her daughter. Defendant grabbed a bag that was still packed from a trip the weekend before. She also grabbed some money she had stashed in a jewelry box.
She was preparing to leave the house when Nunes “came running” into the bedroom. Cosseboom told Nunes that “I was crazy and I stuck him with a knife.” That “scared [Nunes] really bad.” Defendant had a bottle of pills for migraines in her hand and Nunes grabbed for it. Defendant surmised that Nunes was afraid defendant might take all of the pills to commit suicide. The two struggled over the bottle and then they both crashed to the floor. Defendant picked herself up and left the house. She walked down the street, called the police and was arrested.
Rebuttal
Officer Paredez testified in rebuttal that defendant told him she drank a bottle of champagne, not part of one. She also told him that Cosseboom choked her and then released her. She had started to clean up the broken bowl when Cosseboom began choking her again. She did not tell Paredez that she nearly lost consciousness or had difficulty breathing. When Cosseboom let her go a second time, she ran into the kitchen, grabbed a knife, tried to stab Cosseboom, and cut him on the hand, before Cosseboom went outside to get a cushion. Cosseboom came back into the house and said something like “[C]ome on.” She then stabbed him in the stomach. She also told Paredez that she struggled with Nunes for possession of the pill bottle and that Cosseboom separated the two of them. She then left the residence.
DISCUSSION
Failure to Appoint Defense Expert
Defendant contends the trial court abused its discretion when it failed to appoint an expert on “domestic violence/battered women’s syndrome” pursuant to its authority under Evidence Code section 730. She argues that her motions should have been granted because she showed she had been previously abused by her husband, who was the putative victim in this case; she was indigent; and the expert’s testimony was relevant to her claim of self defense. Before addressing the merits of her claim we summarize the content of defendant’s motions and the relevant legal principles involved.
a. Background
Prior to trial, retained counsel made three ex parte motions for funds to hire Dr. Linda S. Barnard to testify at trial as an expert on domestic violence. In his first motion he alleged: “Mr. Cosseboom has abused his wife for years. Ms. Houston is prepared to testify to the abuse as is her mother. Mr. Cosseboom is the actual aggressor in this case.” He summarized the facts, referencing the police report, the preliminary hearing, and photos of defendant’s and Cosseboom’s injuries. He argued in his memorandum of points and authorities that the “[d]efense need only [show] that defendant and victim were involved in a cycle of violence, even if that cycle of violence did not escalate into actual violence until the charged offense.” He asked for $5,000, calculated at Dr. Barnard’s regular rate of $250 per hour, for her to travel from Sacramento, interview defendant, consult with counsel, prepare a report and testify for one day. He attached her curriculum vitae to the motion. The motion was denied.
In his declaration in support of appointment of counsel on appeal, defense counsel averred under penalty of perjury that his law office “was retained for all pretrial and trial assistance. This law office handled Ms. Houston’s case at all stages.”
Counsel brought a subsequent motion to reconsider the denial of his motion for compensation of a defense expert witness. In this motion, retained counsel alleged that defendant had “absolutely no funds to hire her own expert,” as evidenced by the fact that she had no job, had been denied spousal support, and depended on her mother’s generosity for rent-free housing and money. Counsel attached defendant’s income and expense declaration, filed May 31, 2006, in the pending divorce action, to show that defendant “is an unemployed homemaker with an income of 0” who was “handling her own divorce pro per.” Defense counsel also alleged that Dr. Barnard’s testimony in a local case, which he named, “was instrumental in a not guilty result.” This motion was also denied.
Defense counsel next filed a “supplemental motion to reconsider” the denial of his motion for compensation of a defense expert. To this he attached a copy of a civil complaint filed by Mr. Cosseboom seeking damages, which he assumed “she will attempt to defend herself [against] without an attorney.” This motion was also denied. Defense counsel’s motion for funds to compensate him for filing a writ to challenge the court’s denials was also denied.
Finally, defense counsel filed a motion for new trial on the ground that defendant was denied a complete defense by the trial court’s denial of his motions to hire “a domestic violence expert.” The court denied this motion as well.
b. Relevant Legal Principles
Evidence Code section 730 provides: “When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required. The court may fix the compensation for these services, if any, rendered by any person appointed under this section, in addition to any service as a witness, at the amount as seems reasonable to the court.” Thus, pursuant to this section, the trial court has the power to appoint experts to investigate, report and testify. In criminal actions, the court must also order the county to pay the court-ordered expert’s fees. (Evid. Code § 731, subd. (a).)
Evidence Code sections 730 and 731 implement an indigent defendant’s due process right to any ancillary services that are reasonably necessary “to assure that the defendant has a fair opportunity to present his defense.” (Ake v. Oklahoma (1985) 470 U.S. 68, 76; Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319 (Corenevsky).) Equal protection also “ ‘demands that in a proper factual situation a court must appoint an expert that is needed to assist an indigent defendant in his [or her] defense.’ ” (People v. Gunnerson (1977) 74 Cal.App.3d 370, 379.)
To obtain county payment of ancillary defense services, a defendant represented by retained counsel must make a two-part showing. First, he or she must demonstrate indigency. (People v. Worthy (1980) 109 Cal.App.3d 514 (Worthy); Tran v. Superior Court (2001) 92 Cal.App.4th 1149 (Tran).) Second, he or she must demonstrate a reasonable need for such services. (People v. Young (1987) 189 Cal.App.3d 891, 902 (Young).)
“[T]he test of indigency for the purpose of funding investigators and experts is financial means to secure these services.” (Worthy, supra, 109 Cal.App.3d at p. 520, internal quotations omitted.) “[T]he fact that relatives hired counsel for the defendant or gave him money to do so would be relevant in determining his indigency.” (Tran, supra, 92 Cal.App.4th at p. 1155.) Such a payment is a “part of the inquiry to determine whether the defendant had other assets with which to secure ancillary services.” (Ibid., fn. omitted.)
As for reasonable necessity, the defendant must demonstrate “the need for such services by reference to the general lines of inquiry he wishes to pursue, being as specific as possible.” (Corenevsky, supra, 36 Cal.3d at p. 320.) And, because “necessary” services do not include all services that an indigent defendant’s “wealthier counterpart might buy” (Young, supra, 189 Cal.App.3d at p. 903), counsel also must explain why other procedures available to the defense, such as cross-examination, will not be adequate to obtain the necessary information or properly defend the accused. (See People v. Hurley (1979) 95 Cal.App.3d 895, 899-900 (Hurley), disapproved on another point in People v. Wright (1987) 43 Cal.3d 399, 414 & fn. 18.)
We review the trial court’s decision on the need for the appointment of an expert for abuse of discretion. (Hurley, supra, 95 Cal.App.3d at p. 899; Corenevsky, supra, 36 Cal.3d at p. 321.) “An order is presumed correct; all intendments are indulged in support of it on matters to which the record is silent, and error must be affirmatively shown.” (Ibid.) We also review a trial court’s ruling on a motion for a new trial for abuse of discretion. (People v. Navarette (2003) 30 Cal.4th 458, 526.)
c. Analysis
The trial court did not state its reasons for denying defendant’s pretrial motions. Applying Corenevsky’s deferential standard of review, we now consider whether defendant has demonstrated that the trial court abused its discretion in impliedly finding that defendant’s motions had not shown reasonable necessity, or indigency.
First, we examine the nature of the defense for which the expert testimony was sought. Pursuant to Evidence Code section 1107, subdivision (a), “[i]n a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.” Subdivision (b) of section 1107 deems the foundation sufficient for admission of such evidence “if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness.”
Battered Women’s Syndrome (BWS) “has been defined as ‘a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives.’ ” (People v. Romero (1994) 8 Cal.4th 728, 735, fn. 1.) Evidence of BWS is generally relevant to the reasonableness, as well as the subjective existence, of defendant’s belief in the need for self defense. (People v. Humphrey (1996) 13 Cal.4th 1073, 1076 (Humphrey).) If the defendant testifies, it is also relevant to her credibility because it may dispel many of the commonly held misconceptions about battered women, such as “the ordinary lay person’s perception that a woman in a battering relationship is free to leave at any time” or the “common sense conclusions by the jury that if the beatings were really that bad the woman would have left her husband much earlier.” (Id. at p. 1087, internal quotation marks omitted.)
In this case, we question whether defense counsel’s motion set forth an adequate demonstration of the need for the services of an expert on BWS. His motion did not reference any “general lines of inquiry he wishe[d] to pursue, being as specific as possible.” (Corenevsky, supra, 36 Cal.3d at p. 320.) Nor did it explain why other means would not achieve the same end. (Hurley, supra, 95 Cal.App.3d at p. 899.) In other words, defense counsel failed to establish how such an expert’s testimony would be relevant at trial. For example, he did not say that defendant might testify, and that if she did, her credibility should be evaluated in light of expert testimony dispelling commonly held misconceptions about why battered women act or fail to act in expected ways. He did not say that the reasonableness of her belief in self defense – or even the fact of her belief in self defense – would be a disputed issue in the trial, and that the expert’s testimony would shed light on one or both of those issues. At best, defendant’s motion left it for the court to infer, from counsel’s assertion that defendant had been abused “for years” by her husband and from his citations to case law, that defendant was entitled to an expert who would testify that she was a battered woman who stabbed her husband in self defense. The factual premise for this argument was not even supported by a declaration. More importantly, the legal argument presupposed that BWS is always relevant when one spouse injures another and there are years of “abuse.” However, Humphrey does not so hold, and the trial court was not compelled to grant defendant’s relief on such a showing.
However, even if we assume that defendant’s showing was sufficient to establish a reasonable necessity for a BWS expert, counsel’s initial motion made no showing whatsoever of indigency. Thus, the court was required to deny it for that reason alone.
Defense counsel’s subsequent attempts to remedy that situation also fell short. Nowhere in his motions for reconsideration did counsel explain the basis of his retention by the defendant. The court was not required to infer from a month-old income and expense statement that postdated his retainer, or from the fact that defendant was acting in pro per on civil matters, that she was financially unable to pay for an expert, or that friends and family had paid counsel’s retainer. While it is clear from Worthy and Tran that the trial court may not deny ancillary services because family or friends have retained counsel for the defendant, it is also clear from those cases that a defendant represented by retained counsel who asks for county-funded ancillary services must explain to the court why he or she can afford one but not the other, and that the circumstances of counsel’s retention are relevant to the court’s inquiry into defendant’s assertion of indigency. In our view, defendant has not demonstrated that the trial court abused its discretion by declining to fund an expert witness on this showing of indigency.
So far as the appellate record shows, defense counsel was retained at least as of December 12, 2005. The income and expense declaration in the family law matter was filed and dated May 31, 2006.
We also find that the trial court did not abuse its discretion in denying defendant’s motion for a new trial for lack of an expert. Having reviewed the testimony at trial, we find that defendant was not prejudiced by the court’s rulings on defendant’s pretrial motions for funds to hire a “domestic violence expert.” Although defendant and her husband both testified at trial, neither was asked about any prior abuse in the relationship. The only evidence on that point was defendant’s testimony that in 10 years of marriage, the events in question constituted the first time she had ever seen her husband look so scary. Thus, the factual premise for a BWS expert – some testimony from someone about prior abuse, or at least about “a cycle of violence” that culminated in the charged offense – was utterly absent. Without such facts, no rational jury could infer that defendant’s actions were fueled by BWS or that her credibility should be evaluated in terms of BWS. Under these circumstances, no abuse of discretion has been shown.
Multiple Assault Convictions
Relying on People v. Bevan (1989) 208 Cal.App.3d 393 (Bevan), defendant complains that she should not have been convicted of two counts of assault with a deadly weapon, one based on the cut to Cosseboom’s hand and one based on the stab to his stomach. In Bevan, the defendant was convicted by a jury of three separate violations of section 288, subdivision (a) for kissing a 12-year-old girl, touching her breasts under her bra, and putting her hand on his penis, all within the space of a few minutes. Reasoning that “fragmenting a single, brief course of lewd and lascivious conduct into separate offenses could lead to absurd results” if each touch of various parts of a child’s body by the offender “could result in a separate charge, resulting in dozens of charges from a momentary single contact with the minor,” the Bevan court ruled that application of “the doctrine of fragmentation” to defendant’s case required reversal of two of defendant’s three convictions. (Bevan, at p. 403.) Drawing an analogy to an example used in prior cases, the Bevan court noted that “there are not two separate crimes of battery if the actor throws a right-hand punch to his victim and immediately follows it with a left-hand punch.” (Id. at p. 401, internal quotation marks omitted.)
In People v. Scott (1994) 9 Cal.4th 331, Bevan and several of the cases cited by Bevan were expressly disapproved, and the reasoning on which those cases relied was discussed and discredited by our Supreme Court. (Scott, at pp. 347-348; see also fns. 9 & 10.) The prevailing rule is that a defendant may be convicted of any number of lewd acts committed in the course of a single episode of molestation, so long as sufficient evidence supports them. (Id. at p. 348.) He may also be punished for each of them. (People v. Harrison (1989) 48 Cal.3d 321, 334-338 [§ 654 no bar to multiple sex crimes committed in one episode].)
Nevertheless, defendant argues that the language of section 245, subdivision (a) is like the language of section 288, subdivision (a), in that it covers a wide range of potentially criminal conduct that can be alleged in identical counts, and she therefore urges us to apply Bevan’s reasoning here. We decline to do so. As noted, that reasoning has been discredited by our Supreme Court, and we reject defendant’s suggestion that the court’s disapproval applies “specifically as it relates to multiple sex offenses” and not to other types of offenses. Furthermore, unlike the hypothetical right swing-left swing scenario posited in Bevan, here each count of assault reflected the infliction of a discrete injury, each of which constituted a completed assaultive act, not a single continuous assault consisting of multiple blows. In this respect, each of the assaults charged here is more analogous to the discrete injuries charged as separate counts of corporal injury on a spouse in People v. Johnson (2007) 150 Cal.App.4th 1467. In Johnson, this court found that conviction for each count was proper. We likewise find that multiple convictions were proper here as well.
Multiple Convictions for Greater and Lesser Offenses
On each of the two charged felony assaults (§ 245, subd. (a)), the jury returned guilty verdicts not only on the greater charged offense, but also on the lesser included offense of misdemeanor assault (§ 240). Defendant contends that the trial court erred by staying, rather than striking, the convictions for the lesser offenses. In People v. Medina (2007) 41 Cal.4th 685, our Supreme Court reaffirmed the principle that a defendant cannot stand convicted of both the greater and the lesser included offense, and that the proper procedure is to strike the conviction for the lesser offense. “There is no reason to permit two convictions for the lesser offense. [Citation.] There is also no prejudice to the People if a court strikes, rather than stays, the conviction. If a greater offense is reversed on appeal, the lesser included offense may be revived by operation of law.” (Id. at p. 702, internal quotation marks omitted.) Accordingly, we will modify the judgment by striking the convictions for violation of section 240 in counts 2 and 3.
Probation Costs
Defendant also contends that the trial court improperly ordered her to pay for the cost of the probation report and supervised probation as a condition of probation. The Attorney General concedes that caselaw holds it is improper to order a defendant to pay probation costs as a condition of probation, but argues that this court need not take any action to correct the error because (1) defendant waived it by not objecting below; (2) it is not certain the trial court made payment of probation costs a condition of probation.
Section 1203.1b, subdivision (a), provides that a defendant may be ordered to pay “all or a portion of the reasonable cost of any probation supervision,” depending upon the defendant’s ability to pay. However, section 1203.1b does not authorize payment of either costs or fees as a condition of probation. “These costs are collectible as civil judgments; neither contempt nor revocation of probation may be utilized as a remedy for failure to pay. (… § 1203.1b, subd. (d).)” (People v. Washington (2002) 100 Cal.App.4th 590, 592.) Thus, it is well established that the trial court may not require, as a condition of probation, payment of the cost of preparation of the probation report or the costs incurred in probation supervision. (People v. Hart (1998) 65 Cal.App.4th 902.)
Section 1203.1b, subdivision (a), provides in pertinent part, “In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, and in any case in which a defendant is granted probation or given a conditional sentence, the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision or a conditional sentence, of conducting any preplea investigation and preparing any preplea report....”
Section 1203.1b, subdivision (d), provides in pertinent part, “Execution may be issued on the order issued pursuant to this section in the same manner as a judgment in a civil action. The order to pay all or part of the costs shall not be enforced by contempt.”
It follows that if the court imposed the payment of probation costs as a condition of probation, its order was to that extent unauthorized by statute. An unauthorized sentence may be corrected any time it is brought to the attention of the court, and the failure to object below does not forfeit appellate review of the error. (People v. Smith (2001) 24 Cal.4th 849.)
The Attorney General accurately summarizes the record as follows. “The court stated that it was suspending imposition of sentence ‘on the following terms and conditions.’ At the end of a lengthy list, the court ordered appellant to pay $644 for the cost of preparation of the probation report and $41 per month for the cost of supervised probation, in accordance with her ability to pay. The court then concluded by asking appellant ‘do you accept probation under those terms and conditions?’ Appellant [replied] in the affirmative.”
The Attorney General argues that the record is ambiguous as to whether the court intended to impose payment of these costs as a term of probation or as a condition of probation. We need not resolve this ambiguity. In our view, to the extent that the record can be interpreted as conditioning defendant’s probation upon payment of probation costs, modification of the conditions of probation to strike those costs is appropriate. Accordingly, we will modify the probation order by striking those conditions from the order granting probation; however, we will also affirm the order that defendant pay such costs. (§ 1203.1b, subd. (a); People v. Hart, supra, 65 Cal.App.4th at p. 907.)
DISPOSITION
The judgment is modified to strike the convictions in counts 2 and 3 for violations of section 240. The conditions of probation are modified to delete the requirement that defendant pay for the cost of preparing the probation report and probation supervision; however, the order pursuant to section 1203.1b, subdivision (a) requiring defendant to pay such costs is affirmed. As modified, the judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.