Summary
concluding that extreme emotional disturbance defense "would not have been appropriate in this case as the defendant's calculated and premeditated quest for revenge, motivated by fear and anger, is not equivalent to the loss of control generally associated with the affirmative defense"
Summary of this case from Soto v. PortuondoOpinion
December 4, 1989
Appeal from the County Court, Nassau County (Ain, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contentions, his conviction of depraved mind murder (Penal Law § 125.25) was predicated upon legally sufficient evidence. The evidence adduced at the trial, viewed in a light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), established that to settle a previous dispute, the defendant armed himself with two long butchers' knives with which he repeatedly sliced and stabbed the victim causing his death. While the defendant may have intended only to frighten the victim (see, People v Kanelos, 107 A.D.2d 764), his conduct evidenced a depraved indifference to the victim's life and his wantonly reckless conduct created an imminently dangerous and grave risk of death which culminated in the victim's demise (see, People v Roe, 74 N.Y.2d 20; People v Henry, 132 A.D.2d 673; People v Languena, 129 A.D.2d 587). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
We find that the defendant was not entitled to a jury charge on the affirmative defense of extreme emotional disturbance as this theory is applicable only to reduce a charge of intentional murder (see, Penal Law § 125.27 [a]; § 125.25 [1] [a]) or attempted intentional murder, to manslaughter in the first degree and attempted manslaughter in the first degree, respectively (see, People v White, 125 A.D.2d 932; People v Tabarez, 113 A.D.2d 461, affd 69 N.Y.2d 663; People v Lanzot, 67 A.D.2d 864). Even if this affirmative defense were available to depraved mind murder charges, it would not have been appropriate in this case as the defendant's calculated and premeditated quest for revenge, motivated by fear and anger, is not equivalent to the loss of self-control generally associated with the affirmative defense of extreme emotional disturbance (see, People v Walker, 64 N.Y.2d 741; People v Knights, 109 A.D.2d 910).
We have reviewed the defendant's remaining contentions and find them to be without merit. Brown, J.P., Lawrence, Kooper and Balletta, JJ., concur.