Opinion
2012-06-13
The PEOPLE, etc., respondent, v. Remi KWAS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered June 29, 2010, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the jury's determination that he failed to prove by a preponderance of the evidence that he was acting “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” when he stabbed and killed his sister's boyfriend was not against the weight of the evidence (Penal Law § 125.25[1] [a]; seePenal Law § 125.20[2]; People v. Roche, 98 N.Y.2d 70, 75–76, 745 N.Y.S.2d 775, 772 N.E.2d 1133;People v. Casassa, 49 N.Y.2d 668, 675, 427 N.Y.S.2d 769, 404 N.E.2d 1310,cert. denied449 U.S. 842, 101 S.Ct. 122, 66 L.Ed.2d 50;People v. Azaz, 41 A.D.3d 610, 837 N.Y.S.2d 339,affd.10 N.Y.3d 873, 860 N.Y.S.2d 768, 890 N.E.2d 883;People v. Edwards, 29 A.D.3d 710, 813 N.Y.S.2d 681;People v. George, 7 A.D.3d 810, 776 N.Y.S.2d 883). “[W]here conflicting expert testimony is presented, the question of whether or not the defendant suffered from a mental disease or defect at the time of the commission of the crime is primarily for the trier of fact, who has the right to accept or reject the opinion of any expert” ( People v. Hernandez, 46 A.D.3d 574, 576, 846 N.Y.S.2d 371 [citation and internal quotation marks omitted]; see People v. Ayala, 221 A.D.2d 457, 633 N.Y.S.2d 548). Here, considering the evidence presented, including the conflicting expert testimony, the jury could have reasonably concluded that the circumstances surrounding the commission of the crime were not indicative of a loss of self-control or similar mental infirmity ( see People v. Roche, 98 N.Y.2d at 75–76, 745 N.Y.S.2d 775, 772 N.E.2d 1133;People v. Azaz, 41 A.D.3d at 610, 837 N.Y.S.2d 339;People v. Palacios, 302 A.D.2d 540, 541, 755 N.Y.S.2d 268). Accordingly, there is no basis to disturb the jury's rejection of the defendant's affirmative defense of extreme emotional disturbance.