PEOPLE v. KIRSHTEIN

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

The PEOPLE, etc., respondent, v. Michael KIRSHTEIN, appellant.

Decided: May 24, 1999

CORNELIUS J. O'BRIEN, J.P., ANITA R. FLORIO, HOWARD MILLER and NANCY E. SMITH, JJ. Lynn W.L. Fahey, New York, N.Y. (William A. Loeb of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie and Caroline R. Donhauser of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered October 30, 1996, convicting him of murder in the second degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The trial court did not err in denying the defendant's request to charge the jury that he need not present psychiatric or psychological evidence to establish the defense of extreme emotional disturbance.   In giving a jury charge the trial court must state the material legal principles applicable to the case (CPL 300.10[2];  see also, People v. Turton, 221 A.D.2d 671, 634 N.Y.S.2d 156;  People v. James, 194 A.D.2d 558, 598 N.Y.S.2d 334).   To establish the affirmative defense of extreme emotional disturbance, a defendant must prove by a preponderance of the evidence that (a) he acted under the influence of extreme emotional disturbance, and (b) there was a reasonable explanation or excuse for the emotional disturbance, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be (see, Penal Law § 125.25[1][a];  People v. Moye, 66 N.Y.2d 887, 498 N.Y.S.2d 767, 489 N.E.2d 736;  People v. Casassa, 49 N.Y.2d 668, 678-679, 427 N.Y.S.2d 769, 404 N.E.2d 1310).   The trial court fully and properly charged the jury on these statutory requirements.   Therefore, contrary to the defendant's contention, the charge was complete.

The defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions, including these raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.

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