PEOPLE v. RAMSEY (2009)

 Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (§ 265.03 [former (2) ] ).   Contrary to the contention of defendant, County Court properly denied his request to charge manslaughter in the first degree (§ 125.20[1], [2] ) as a lesser included offense of murder in the second degree.   With respect to Penal Law § 125.20(1), there is no reasonable view of the evidence that defendant intended to cause serious physical injury to another person but not to kill him or her (see CPL 300.50[1];  People v. Miller, 6 N.Y.3d 295, 302, 812 N.Y.S.2d 20, 845 N.E.2d 451;  People v. Cabassa, 79 N.Y.2d 722, 728-729, 586 N.Y.S.2d 234, 598 N.E.2d 1, cert. denied 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 563;  People v. Glover, 57 N.Y.2d 61, 63-64, 453 N.Y.S.2d 660, 439 N.E.2d 376).   Defendant testified that he shot the victim at close range four times, causing the victim to sustain fatal injuries to, inter alia, his heart and lungs (see People v. Tyler, 43 A.D.3d 633, 634, 841 N.Y.S.2d 193, lv. denied 9 N.Y.3d 1010, 850 N.Y.S.2d 398, 880 N.E.2d 884;  see generally People v. Payne, 3 N.Y.3d 266, 272, 786 N.Y.S.2d 116, 819 N.E.2d 634, rearg. denied 3 N.Y.3d 767, 788 N.Y.S.2d 670, 821 N.E.2d 975).   Moreover, there was no evidence of a struggle for the weapon (cf. People v. DeCapua, 37 A.D.3d 1189, 1190, 829 N.Y.S.2d 799, lv. denied 8 N.Y.3d 983, 838 N.Y.S.2d 487, 869 N.E.2d 663), nor was there evidence that the victim possessed a gun at the time of the shooting (cf. People v. Tabb, 180 A.D.2d 770, 580 N.Y.S.2d 83).

 We further conclude that defendant failed to establish that he was entitled to a charge of manslaughter in the first degree under Penal Law § 125.20(2) based on his defense of extreme emotional disturbance.   To establish that defense, “a defendant must demonstrate, first, that he or she acted under the influence of an extreme emotional disturbance and, second, that there was a reasonable explanation or excuse for that disturbance” (People v. Roche, 98 N.Y.2d 70, 75-76, 745 N.Y.S.2d 775, 772 N.E.2d 1133;  see People v. Harris, 95 N.Y.2d 316, 319, 717 N.Y.S.2d 82, 740 N.E.2d 227;  People v. Casassa, 49 N.Y.2d 668, 675, 427 N.Y.S.2d 769, 404 N.E.2d 1310, cert. denied 449 U.S. 842, 101 S.Ct. 122, 66 L.Ed.2d 50).   The first element “is generally associated with a loss of self-control” (Harris, 95 N.Y.2d at 319, 717 N.Y.S.2d 82, 740 N.E.2d 227) and, here, the record establishes that defendant did not lose self-control at the time of the crime (see People v. McGrady, 45 A.D.3d 1395, 844 N.Y.S.2d 796, lv. denied 10 N.Y.3d 813, 857 N.Y.S.2d 47, 886 N.E.2d 812).   Defendant testified that he shot the victim both because he became angry and because he feared for his own safety.   Defendant also testified that he was calm immediately prior to the shooting, and that he was nervous and scared after the shooting.   We thus conclude that there is “no reasonable view of the evidence to support a finding that the defendant's conduct actually ‘was influenced by an extreme emotional disturbance at the time the alleged crime was committed’ ” (People v. Murden, 190 A.D.2d 822, 822, 593 N.Y.S.2d 837, lv. denied 81 N.Y.2d 1017, 600 N.Y.S.2d 205, 616 N.E.2d 862).

 Defendant failed to preserve for our review his contention that he was denied his right to present a defense based on the court's evidentiary rulings (see People v. Angelo, 88 N.Y.2d 217, 222, 644 N.Y.S.2d 460, 666 N.E.2d 1333).   In any event, that contention lacks merit.   We agree with defendant that the court erred in precluding him from testifying concerning threats made by the victim to defendant's girlfriend (see People v. Miller, 39 N.Y.2d 543, 548-549, 384 N.Y.S.2d 741, 349 N.E.2d 841;  People v. Henderson, 162 A.D.2d 1038, 557 N.Y.S.2d 813;  People v. Dixon, 138 A.D.2d 929, 526 N.Y.S.2d 269), and that the court further erred in permitting the prosecutor to cross-examine defendant's girlfriend beyond the scope of her limited direct examination (see generally People v. Maerling, 64 N.Y.2d 134, 141-142, 485 N.Y.S.2d 23, 474 N.E.2d 231;  People v. Sanders, 2 A.D.3d 1420, 768 N.Y.S.2d 900).   Nevertheless, we conclude that any error is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   Indeed, we note that the precluded testimony was essentially cumulative of other evidence presented at trial (see People v. Diallo, 297 A.D.2d 247, 248, 746 N.Y.S.2d 479;  People v. Starostin, 265 A.D.2d 267, 268, 698 N.Y.S.2d 6, lv. denied 94 N.Y.2d 885, 705 N.Y.S.2d 17, 726 N.E.2d 494;  People v. Bruner, 222 A.D.2d 738, 739, 634 N.Y.S.2d 862, lv. denied 88 N.Y.2d 981, 649 N.Y.S.2d 387, 672 N.E.2d 613;  see generally People v. Dolan, 51 A.D.3d 1337, 1341, 858 N.Y.S.2d 490), and that defendant was provided “ ‘a meaningful opportunity to present a complete defense’ ” (Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636;  see People v. Douglas, 29 A.D.3d 47, 50, 809 N.Y.S.2d 36, lv. denied 6 N.Y.3d 847, 816 N.Y.S.2d 753, 849 N.E.2d 976).   Although defendant failed to preserve for our review his further contention that the court erred in directing that the sentence imposed for criminal possession of a weapon in the second degree shall run consecutively to the sentence imposed for murder in the second degree, the People correctly concede that those consecutive sentences are illegal and thus that preservation is not required (see People v. Fuentes, 52 A.D.3d 1297, 1300-1301, 859 N.Y.S.2d 841, lv. denied 11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659).   We agree with defendant that the sentences must run concurrently (see Penal Law § 70.25[2];  People v. Hamilton, 4 N.Y.3d 654, 657-658, 797 N.Y.S.2d 408, 830 N.E.2d 306;  People v. Boyer, 31 A.D.3d 1136, 1139, 817 N.Y.S.2d 813, lv. denied 7 N.Y.3d 865, 824 N.Y.S.2d 610, 857 N.E.2d 1141;  People v. Rudolph, 16 A.D.3d 1151, 1152-1153, 791 N.Y.S.2d 253, lv. denied 5 N.Y.3d 809, 803 N.Y.S.2d 38, 836 N.E.2d 1161), and we therefore modify the judgment accordingly.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by directing that the sentence imposed on count two of the indictment shall run concurrently with the sentence imposed on count one of the indictment and as modified the judgment is affirmed.

MEMORANDUM: