PEOPLE v. REED (2007)

Appeal by the defendant from a judgment of the County Court, Westchester County (Adler, J.), rendered July 8, 2003, convicting him of murder in the second degree, attempted murder in the second degree, criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree (three counts), reckless endangerment in the first degree, and unlawful wearing of a body vest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that it was error to submit to the jury a count of depraved indifference murder (see Penal Law § 125.25[2] ) as an alternative to intentional murder (see Penal Law § 125.25[1] ) is foreclosed because the defendant was convicted of intentional murder and the jury, pursuant to the court's instructions, did not consider the depraved indifference murder count (see People v. Griffin, 28 A.D.3d 578, 579, 816 N.Y.S.2d 86;  cf. People v. Falcon, 281 A.D.2d 368, 369, 722 N.Y.S.2d 538).   As a result, any error in submitting the depraved indifference murder count was harmless (cf. People v. Speight, 158 A.D.2d 729, 729-730, 552 N.Y.S.2d 176).

 The Supreme Court properly denied the defendant's request for a jury charge on the affirmative defense of extreme emotional disturbance.   The defendant presented no evidence that he suffered from a mental infirmity not rising to the level of insanity at the time of the homicide, and his conduct was inconsistent with the loss of control associated with extreme emotional disturbance (see People v. Smith, 1 N.Y.3d 610, 612, 776 N.Y.S.2d 198, 808 N.E.2d 333;  People v. Buckner, 23 A.D.3d 492, 805 N.Y.S.2d 619;  People v. Zamora, 309 A.D.2d 957, 958, 766 N.Y.S.2d 850;  People v. McDonald, 199 A.D.2d 420, 605 N.Y.S.2d 341;  People v. Tulloch, 179 A.D.2d 794, 795, 579 N.Y.S.2d 442).

The defendant's remaining contention is without merit.