Opinion
1296 KA 15–00096
12-22-2017
The PEOPLE of the State of New York, Respondent, v. Antonio MARTIN–BROWN, Defendant–appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him upon a nonjury verdict of murder in the second degree ( Penal Law § 125.25 [1 ] ) and petit larceny (§ 155.25). Defendant failed to preserve for our review his contention that Supreme Court erred in granting the People's application to have defendant examined by a psychiatrist pursuant to CPL 250.10(3) after defendant gave notice of his intention to present psychiatric evidence in connection with the affirmative defense of extreme emotional disturbance (see CPL 470.05 [2] ). In any event, we conclude that the court did not abuse its discretion in granting the application (see generally People v. Diaz, 15 N.Y.3d 40, 47, 904 N.Y.S.2d 343, 930 N.E.2d 264 [2010] ), and we further conclude that defendant was not denied effective assistance of counsel on the ground that defense counsel failed to oppose the application for an examination by a psychiatrist (see generally People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Defendant also contends that the court erred in allowing the People's expert to testify on rebuttal regarding credibility issues. We conclude that the expert testimony did not " ‘exceed[ ] the foundation necessary to establish the basis for the expert's opinion’ " ( Diaz, 15 N.Y.3d at 48, 904 N.Y.S.2d 343, 930 N.E.2d 264 ). To the extent that the expert offered inadmissible testimony on defendant's credibility, we conclude that there is no basis for reversal inasmuch as the trial judge, as the trier of fact, indicated that he would disregard the witness's credibility determinations (see People v. Pabon, 28 N.Y.3d 147, 158, 42 N.Y.S.3d 659, 65 N.E.3d 688 [2016] ).
To the extent that defendant contends that the evidence is legally insufficient to support the conviction of murder in the second degree because he established the defense of extreme emotional disturbance by a preponderance of the evidence, that contention is not preserved for our review (see People v. Ashline, 124 A.D.3d 1258, 1260, 3 N.Y.S.3d 469 [4th Dept. 2015], lv denied 27 N.Y.3d 1128, 39 N.Y.S.3d 109, 61 N.E.3d 508 [2016] ). In any event, we conclude that the contention is without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). In addition, viewing the evidence in the light of the elements of that crime in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see Ashline, 124 A.D.3d at 1260–1261, 3 N.Y.S.3d 469 ; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). It is well established that "a brutal assault [does] not itself suffice to demonstrate extreme emotional disturbance" ( People v. McKenzie, 19 N.Y.3d 463, 467, 951 N.Y.S.2d 691, 976 N.E.2d 217 [2012] ). Here, defendant's " ‘behavior immediately before and after the killing was inconsistent with the loss of control associated with the affirmative defense’ " ( People v. Jarvis, 60 A.D.3d 1478, 1479, 876 N.Y.S.2d 592 [4th Dept. 2009], lv denied 12 N.Y.3d 916, 884 N.Y.S.2d 697, 912 N.E.2d 1078 [2009] ), inasmuch as defendant admitted that he returned to the crime scene shortly after he initially fled in order to remove incriminating evidence.
Finally, we reject defendant's contention that the sentence is unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.