Opinion
November 15, 1989
Appeal from the Erie County Court, D'Amico, J.
Present — Callahan, J.P., Boomer, Pine, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted, after a jury trial, of murder in the second degree (Penal Law § 125.25), attempted murder in the second degree (Penal Law § 110.00, 125.25 Penal [1]), assault in the first degree (Penal Law § 120.10) and two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03). The record reveals that at about 12:30 A.M. on the morning of January 23, 1986, defendant's wife and her sister were shot while seated in a car. Defendant's wife was dead on arrival at the hospital. Her sister survived and testified at trial that defendant shot them from close range.
On appeal, defendant argues that the court erred in refusing his request to charge manslaughter in the first degree as a lesser included offense of the murder charges on the theory of extreme emotional disturbance (Penal Law § 125.20). We conclude, from our review of the record, that the court properly determined that defendant was not entitled to a charge on extreme emotional disturbance.
To be entitled to the charge, defendant must present sufficient evidence to the jury to support a finding by a preponderance of the evidence that the elements of the affirmative defense are satisfied (People v Moye, 66 N.Y.2d 887, 889; People v Walker, 64 N.Y.2d 741). This defense contains two elements, one subjective and one objective. Defendant must show that he did act under the influence of extreme emotional disturbance and that there was a reasonable explanation or excuse for the emotional disturbance (People v Moye, supra, at 890; see also, People v Casassa, 49 N.Y.2d 668, 678-679, cert denied 449 U.S. 842). Defendant testified and presented an alibi witness, flatly denying that he participated in the shooting. Therefore, he presented no evidence concerning his mental condition at the time of the crime. He did testify to some marital discord and jealousy, but minimized its effect on him emotionally. Such evidence was not indicative of the type of loss of self-control associated with the defense of extreme emotional disturbance (cf., People v Lyness, 115 A.D.2d 333, lv denied 69 N.Y.2d 747, cert denied 481 U.S. 1070).
Defendant contends also that the court improperly received into evidence a note written by him and found in his wife's desk after her death. He asserts that the note was neither relevant nor probative; the prosecution maintains that the note circumstantially established defendant's motive and intent in the commission of the murder.
The note was relevant to prove circumstantially defendant's intent. "Relevant evidence means `evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence'" (People v Davis, 43 N.Y.2d 17, 27, cert denied 435 U.S. 998; see also, Richardson, Evidence § 146 [Prince 10th ed]). The fact that this evidence is equivocal or consistent with suppositions other than guilt does not render it inadmissible (People v Yazum, 13 N.Y.2d 302, 304, rearg denied 15 N.Y.2d 679). Arguments concerning the meaning of the words would go to the weight, but not necessarily the admissibility, of the evidence (cf., People v Vargas, 125 A.D.2d 429, lv denied 69 N.Y.2d 887).
We have reviewed the other claims raised by defendant on this appeal and find them to be without merit.