TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRIDGET L.
FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
MARCELLUS W. TIMMONS, DEFENDANT-APPELLANT PRO SE.
DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND
from a judgment of the Monroe County Court (Douglas A.
Randall, J.), rendered November 4, 2013. The judgment
convicted defendant, upon a jury verdict, of murder in the
hereby ORDERED that the judgment so appealed from is
Defendant appeals from a judgment convicting him, upon a jury
verdict, of murder in the second degree (Penal Law §
125.25 ). Defendant testified in his own defense, and
admitted to stabbing, strangling, and beating the victim to
death at the conclusion of a night at the victim's
apartment. Defendant was sentenced to an indeterminate prison
term of 22 years to life.
Court properly denied defendant's request for a jury
charge on extreme emotional disturbance (EED). "[A]
defendant is precluded from raising any defense predicated on
a mental infirmity, including [EED], if the defendant fails
to file and serve a timely notice of intent to present
psychiatric evidence" (People v Diaz, 15 N.Y.3d
40, 45; see CPL 250.10 ), which is "broadly
construed to encompass any' mental health evidence
offered by a defendant, includ[ing] lay testimony"
(Diaz, 15 N.Y.3d at 47). Although "a defendant
can choose to testify in his own defense to explain his
actions without triggering the notice requirement of CPL
250.10 (2), ... he would not be entitled to a jury
instruction on [EED] pursuant to Penal Law § 125.25 (1)
(a)" (id.). It is undisputed that defendant
gave no notice pursuant to CPL 250.10.
challenge to the legal sufficiency of the evidence disproving
justification is unpreserved for our review because it was
not raised in his motion for a trial order of dismissal
(see People v Fafone, 129 A.D.3d 1667, 1668, lv
denied 26 N.Y.3d 1039). Defendant's challenge to the
legal sufficiency of the evidence of his intent to kill the
victim is without merit inasmuch as he admitted that he
stabbed the victim in the neck with a screwdriver and
strangled him (see generally People v Ross, 270
A.D.2d 36, 36, lv denied 95 N.Y.2d 803; People v
Keller, 246 A.D.2d 828, 829, lv denied 91
N.Y.2d 1009; People v Wallace, 217 A.D.2d 918,
918-919, lv denied 86 N.Y.2d 847).
the evidence in light of the elements of the crime as charged
to the jury (see People v Danielson, 9 N.Y.3d 342,
349), we reject defendant's contention that the verdict
is against the weight of the evidence because his own
testimony raised a justification defense (see generally
People v Bleakley, 69 N.Y.2d 490, 495). "Great
deference is accorded to the fact-finder's opportunity to
view the witnesses, hear the testimony and observe
demeanor" (Bleakley, 69 N.Y.2d at 495), and
"the jury was free to reject all of defendant's
testimony or to selectively credit any part that [it] deemed
worthy of belief and reject the rest" (People v
Rose, 215 A.D.2d 875, 876, lv denied 86 N.Y.2d
801). We likewise reject defendant's contention that the
court's Sandoval ruling was an abuse of
discretion. By precluding the People from questioning
defendant concerning four convictions and limiting
questioning about two others, the court's ruling
reasonably "limited both the number of convictions and
the scope of permissible cross-examination" (People
v Hayes, 97 N.Y.2d 203, 208).
as defendant's claims of ineffective assistance of
counsel are based on matters outside the record, the proper
avenue for those claims is a CPL article 440 motion (see
People v Jones, 63 A.D.3d 1582, 1583, lv denied
13 N.Y.3d 797). Those claims of ineffective assistance that
are properly before us are without merit, because they relate
to defense counsel's failure to make certain motions and
objections, none of which was likely to succeed (see
People v Patterson, 115 A.D.3d 1174, 1175-1176, lv
denied 23 N.Y.3d 1066). Viewing the evidence, the law,
and the circumstances of this case, in totality and as of the
time of the representation, we conclude that defense counsel
provided meaningful representation (see generally People
v Baldi, 54 N.Y.2d 137, 147).
we reject defendant's challenge to the severity of the
sentence, including his challenge to the seven-year increase
from the People's pretrial plea offer (see generally