PEOPLE v. STENSON (2001)

 On appeal from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25[3] ) and other crimes, defendant contends that County Court erred in denying his request to offer expert testimony concerning the effect of cocaine on the victim.   The record contains no evidence that the victim was “exhibiting aberrant behavior sufficient to cause fear and to warrant a forceful response” (People v. Chevalier, 220 A.D.2d 114, 117, 644 N.Y.S.2d 508, affd. 89 N.Y.2d 1050, 659 N.Y.S.2d 846, 681 N.E.2d 1292).   Indeed, defendant testified that, once he pointed the gun at the victim, the victim raised his voice and waved his hands, attempting to grab the gun.   That behavior was not “aberrant”, given the circumstances (People v. Chevalier, supra, at 117, 644 N.Y.S.2d 508;  see also, People v. Guerrero-Rivera, 236 A.D.2d 837, 654 N.Y.S.2d 224).   In any event, the alleged error is harmless.   The evidence of defendant's guilt is overwhelming and there is no significant probability that defendant would have been acquitted but for the alleged error (see, People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Judgment unanimously affirmed.

MEMORANDUM: