Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Drue JARVIS, Defendant-Appellant.

Decided: March 27, 2009

PRESENT:  HURLBUTT, J.P., MARTOCHE, FAHEY, CARNI, AND GORSKI, JJ. Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him after a jury trial of murder in the first degree (Penal Law § 125.27[1][a][vii];  [b] ) and murder in the second degree (§ 125.25[3] ).   Contrary to defendant's contention, County Court properly refused to charge the affirmative defense of extreme emotional disturbance.  “ [Defendant's] behavior immediately before and after the killing was inconsistent with the loss of control associated with the affirmative defense” (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;  see People v. Roche, 98 N.Y.2d 70, 76-77, 745 N.Y.S.2d 775, 772 N.E.2d 1133;  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).   Viewing the evidence in the light most favorable to defendant, we conclude that there was not “sufficient credible evidence ․ presented for the jury to find, by a preponderance of the evidence, that the elements of the affirmative defense [had] been established” (People v. White, 79 N.Y.2d 900, 902-903, 581 N.Y.S.2d 651, 590 N.E.2d 236).

 As the People correctly concede, however, that part of the judgment convicting defendant of murder in the second degree must be reversed and count two of the indictment dismissed because it is an inclusory concurrent count of murder in the first degree (see CPL 300.40[3][b];  see People v. Miller, 6 N.Y.3d 295, 300-303, 812 N.Y.S.2d 20, 845 N.E.2d 451;  People v. Jackson, 41 A.D.3d 1268, 1270, 839 N.Y.S.2d 377, lv. denied 10 N.Y.3d 812, 857 N.Y.S.2d 45, 886 N.E.2d 810, 11 N.Y.3d 789, 866 N.Y.S.2d 616, 896 N.E.2d 102).   We therefore modify the judgment accordingly.   Finally, although defendant requests that we disavow our prior decisions holding that there is no requirement that the police electronically record interrogations, we decline to do so (see People v. Dukes [Appeal No. 1], 53 A.D.3d 1101, 859 N.Y.S.2d 878, lv. denied 11 N.Y.3d 831, 868 N.Y.S.2d 606, 897 N.E.2d 1090).

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of murder in the second degree and dismissing count two of the indictment and as modified the judgment is affirmed.