PEOPLE v. AZAZ (2007)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered October 12, 2004, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The jury's determination that the defendant failed to prove by a preponderance of the evidence that he was acting “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” when he stabbed and killed his wife was not against the weight of the evidence (Penal Law § 125.25[1][a];  see Penal Law § 125.20[2];  People v. Roche, 98 N.Y.2d 70, 75-76, 745 N.Y.S.2d 775, 772 N.E.2d 1133;  People v. Edwards, 29 A.D.3d 710, 813 N.Y.S.2d 681;  People v. Chambers, 18 A.D.3d 571, 572, 795 N.Y.S.2d 307;  People v. George, 7 A.D.3d 810, 776 N.Y.S.2d 883).   The jury reasonably could have concluded that the circumstances surrounding the commission of the crime were not indicative of a loss of self-control or similar mental infirmity (see People v. Roche, supra;  People v. Palacios, 302 A.D.2d 540, 541, 755 N.Y.S.2d 268).   Accordingly, the jury properly rejected the defendant's affirmative defense.

The defendant's challenge to the legal sufficiency of the evidence with respect to his conviction of depraved indifference murder is unpreserved for appellate review (see CPL 470.05[2] ).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of depraved indifference murder with respect to the murder of his son beyond a reasonable doubt (see People v. Suarez, 6 N.Y.3d 202, 213 n. 7, 811 N.Y.S.2d 267, 844 N.E.2d 721;  People v. Craft, 36 A.D.3d 1145, 827 N.Y.S.2d 376).

The defendant's contention that the trial court's instruction to a panel of prospective jurors, three of whom sat on the jury, violated his right against self-incrimination is unpreserved for appellate review (see People v. Autry, 75 N.Y.2d 836, 839, 552 N.Y.S.2d 908, 552 N.E.2d 156;  People v. Chipp, 75 N.Y.2d 327, 340, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70;  People v. Field, 308 A.D.2d 548, 549, 764 N.Y.S.2d 839), and in any event, is without merit.

The defendant's contention that the prosecutor's allegedly improper questions during cross-examination and comments during summation constituted reversible error is unpreserved for appellate review (see CPL 470.05[2];  People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668;  People v. Portalatin, 18 A.D.3d 673, 674, 795 N.Y.S.2d 334).   In any event, the prosecutor's questions and remarks were entirely within the bounds of fair comment (see People v. Portalatin, supra ).

The defendant's challenge to the trial court's jury charge is unpreserved for appellate review (see CPL 470.05[2];  People v. Wiggins, 31 A.D.3d 584, 817 N.Y.S.2d 670;  People v. Rivera, 307 A.D.2d 369, 369-370, 762 N.Y.S.2d 828). In any event, the court's interested witness charge was proper (see People v. Wiggins, supra;  People v. Varughese, 21 A.D.3d 1126, 1128, 801 N.Y.S.2d 415;  People v. Kallamni, 14 A.D.3d 316, 316-317, 787 N.Y.S.2d 1;  cf. People v. Jackson, 74 N.Y.2d 787, 790, 545 N.Y.S.2d 95, 543 N.E.2d 738).

Further, the defendant's contention that he was denied the effective assistance of counsel because of counsel's failure to lodge adequate protests to the prosecutor's summation or to the charge is without merit.   Viewing the record as a whole, the defendant received meaningful representation (see People v. Henry, 95 N.Y.2d 563, 565-565, 721 N.Y.S.2d 577, 744 N.E.2d 112;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 The Supreme Court properly imposed consecutive sentences on the defendant's murder convictions because the offenses were separate and distinct acts, notwithstanding that they arose out of a single transaction (see People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212;  People v. Bryant, 39 A.D.3d 768, 834 N.Y.S.2d 305;  People v. Valdez, 277 A.D.2d 262, 263, 715 N.Y.S.2d 654;  People v. Black, 249 A.D.2d 318, 670 N.Y.S.2d 898;  People v. Williams, 245 A.D.2d 400, 401, 666 N.Y.S.2d 452;  People v. Reyes, 239 A.D.2d 524, 658 N.Y.S.2d 353;  People v. Hladky, 229 A.D.2d 400, 401, 645 N.Y.S.2d 74;  cf. Penal Law § 70.25[2] ).   The defendant's challenge to his sentence as unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, is unpreserved for appellate review and, in any event, is without merit (see United States v. White, 240 F.3d 127, 135, cert. denied 540 U.S. 857, 124 S.Ct. 157, 157 L.Ed.2d 104;  People v. Bryant, supra;  People v. Pritchett, 29 A.D.3d 828, 814 N.Y.S.2d 281;  People v. Lloyd, 23 A.D.3d 296, 298, 805 N.Y.S.2d 20).   The Supreme Court did not engage in any fact-finding, but instead, implicitly made a legal determination based on facts already found by the jury (see People v. Bryant, supra;  People v. Nelson, 36 A.D.3d 532, 534, 827 N.Y.S.2d 154;  People v. Pritchett, supra at 829, 814 N.Y.S.2d 281;   People v. Lloyd, supra ).