Opinion
666 KA 14-02210
07-24-2020
The PEOPLE of the State of New York, Respondent, v. Clayton S. WHITTEMORE, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of murder in the second degree ( Penal Law § 125.25 [1] ). Contrary to defendant's contention, the jury's rejection of the affirmative defense of extreme emotional disturbance (EED) was not against the weight of the evidence (see People v. Steen , 107 A.D.3d 1608, 1608, 967 N.Y.S.2d 572 [4th Dept. 2013], lv denied 22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555 [2013] ). Contrary to defendant's further contention, the purportedly flawed understanding of EED exhibited by the People's psychiatric expert went "to the weight to be given the evidence rather than its admissibility" ( People v. Taylor , 75 N.Y.2d 277, 291, 552 N.Y.S.2d 883, 552 N.E.2d 131 [1990] ). Thus, Supreme Court properly refused to strike the testimony of the People's expert based on his purportedly flawed understanding of EED (see People v. Pascuzzi , 173 A.D.3d 1367, 1375, 102 N.Y.S.3d 778 [3d Dept. 2019], lv denied 34 N.Y.3d 953, 110 N.Y.S.3d 624, 134 N.E.3d 623 [2019] ; People v. Boice , 89 A.D.2d 33, 35, 455 N.Y.S.2d 859 [3d Dept. 1982] ). Moreover, given the court's instructions to the jury on EED—the accuracy of which are not challenged on appeal—the court was not obligated to "tell the jury that [the People's expert] had incorrectly stated the criteria for [EED]" (see People v. Samuels , 99 N.Y.2d 20, 25-26, 750 N.Y.S.2d 828, 780 N.E.2d 513 [2002] ; People v. Radcliffe , 232 N.Y. 249, 254-255, 133 N.E. 577 [1921] ). Finally, defendant did not preserve his contention that the People violated his due process rights by failing to correct their expert's ostensibly inaccurate testimony about EED (see People v. Rivera , 70 A.D.3d 1484, 1484, 894 N.Y.S.2d 661 [4th Dept.. 2010], lv denied 15 N.Y.3d 756, 906 N.Y.S.2d 829, 933 N.E.2d 228 [2010] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).