Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered August 22, 2007. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.
Decided on February 10, 2011 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on February 10, 2011
PRESENT: SCUDDER, P.J., SMITH, GREEN, PINE, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 ). Contrary to defendant's contention, County Court properly refused to charge the affirmative defense of extreme emotional disturbance. Such a charge is not appropriate where, as here, the defendant's conduct before, during and after the offense is "inconsistent with the loss of self-control associated with the defense" (People v Roche, 98 NY2d 70, 77; see People v Smith, 1 NY3d 610, 612). Viewing the evidence in the light most favorable to defendant, we conclude that there was not the requisite "sufficient credible evidence . . . presented for the jury to find, by a preponderance of the evidence, that the elements of the affirmative defense [had] been established" (People v White, 79 NY2d 900, 902-903), particularly in view of the conflicting reasons given by defendant for his actions.
Contrary to defendant's further contention, the sentence is not unduly harsh or severe. Entered: February 10, 2011 Patricia L. Morgan Clerk of the Court
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