The People, etc., respondent, v. Jose Toxtle, appellant. (2010)

Submitted-November 1, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Sullivan, J.), rendered July 14, 2008, convicting him of murder in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and sentencing him to an indeterminate term of 25 years to life imprisonment on the conviction of murder in the second degree and a determinate term of one year imprisonment on the conviction of criminal possession of a weapon in the fourth degree, with the sentences to run concurrently.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed on the conviction of murder in the second degree from 25 year to life imprisonment to 20 years to life imprisonment;  as so modified, the judgment is affirmed.

The defendant's contention regarding the jury instruction on extreme emotional disturbance is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19).   In any event, the jury instruction at issue did not direct the jury to consider matters relating to sentencing or punishment (see CJI2d[NY] Penal Law § 125.25[1][a] ).

The defendant was not deprived of the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708;  People v. Baldi, 54 N.Y.2d 137).

The sentence imposed was excessive to the extent indicated.

The defendant's remaining contention is without merit.

FISHER, J.P., FLORIO, LEVENTHAL and HALL, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court