PEOPLE v. WALL (2008)

On appeal from a judgment convicting him, after a nonjury trial, of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ), defendant contends that the verdict is against the weight of the evidence based on the affirmative defense of extreme emotional disturbance (see § 125.25[1][a];  see generally People v. Moye, 66 N.Y.2d 887, 889-890, 498 N.Y.S.2d 767, 489 N.E.2d 736).   We reject that contention inasmuch as defendant failed to establish that affirmative defense by a preponderance of the evidence (see People v. Smith, 1 N.Y.3d 610, 612, 776 N.Y.S.2d 198, 808 N.E.2d 333;  see generally People v. White, 79 N.Y.2d 900, 902-903, 581 N.Y.S.2d 651, 590 N.E.2d 236;  Moye, 66 N.Y.2d at 890, 498 N.Y.S.2d 767, 489 N.E.2d 736).   Defendant made three conflicting statements to the police, each describing his violent encounter with the victim in a different manner, and at least one of those statements was inconsistent with the affirmative defense of extreme emotional disturbance.   The record also contains physical and medical evidence from which County Court was entitled to infer that defendant acted intentionally and did not experience the sudden loss of control associated with an extreme emotional disturbance (see People v. Feris, 144 A.D.2d 691, 692, 535 N.Y.S.2d 17;  People v. Knights, 109 A.D.2d 910, 911, 486 N.Y.S.2d 377).   Although defendant contends that “the testimony of his expert witness was sufficient to establish the affirmative defense of extreme emotional disturbance, his expert's conclusions were rebutted by the People's expert witness[ ]” (People v. Finney, 181 A.D.2d 789, 790, 581 N.Y.S.2d 247, lv. denied 79 N.Y.2d 1049, 584 N.Y.S.2d 1016, 596 N.E.2d 414).  “The verdict in this nonjury trial is based largely on credibility determinations by the court that are entitled to great deference” (People v. Coleman, 305 A.D.2d 1031, 758 N.Y.S.2d 878, lv. denied 100 N.Y.2d 579, 764 N.Y.S.2d 389, 796 N.E.2d 481).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: