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

The PEOPLE, etc., Respondent, v. Miguel MARTINEZ, Appellant.

Decided: June 30, 1997

Before ROSENBLATT, J.P., and MILLER, O'BRIEN and RITTER, JJ. Daniel L. Greenberg, New York City, (Steven Berko, of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, (Roseann B. MacKechnie and Anne C. Feigus, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), rendered September 28, 1995, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The evidence adduced at trial established that after spending several hours gambling in the back room of a bodega, the unarmed victim announced an intention to kill the defendant by the end of that year.   Thereupon, the defendant produced a gun from his waistband, told the deceased, “You go first”, and fired three shots at him, two into his back, and fled.   Contrary to the defendant's contention, the deceased's threat was not a “reasonable explanation or excuse” (People v. Casassa, 49 N.Y.2d 668, 679, 427 N.Y.S.2d 769, 404 N.E.2d 1310) for the shooting so as to warrant a charge on the affirmative defense of extreme emotional disturbance (see, People v. Moye, 66 N.Y.2d 887, 498 N.Y.S.2d 767, 489 N.E.2d 736;  People v Henriquez, 233 A.D.2d 268, 650 N.Y.S.2d 138 ).

The sentence imposed was neither harsh nor excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).


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