Opinion
No. 2018-00206 Ind. No. 57/13
10-13-2021
The People, etc., respondent, v. Adiljan Anarbaev, appellant.
Patricia Pazner, New York, NY (De Nice Powell of counsel), for appellant. Eric Gonzalez, Special District Attorney, Brooklyn, NY (Leonard Joblove and Dmitriy Povazhuk of counsel), for respondent.
Argued - September 17, 2021
D67414 Y/htr
Patricia Pazner, New York, NY (De Nice Powell of counsel), for appellant.
Eric Gonzalez, Special District Attorney, Brooklyn, NY (Leonard Joblove and Dmitriy Povazhuk of counsel), for respondent.
WILLIAM F. MASTRO, J.P. ROBERT J. MILLER FRANCESCA E. CONNOLLY VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (William E. Garnett, J.), rendered November 27, 2017, convicting him of murder in the second degree, burglary in the first degree (two counts), and aggravated criminal contempt, after a nonjury trial, and sentencing him to an indeterminate term of imprisonment of 25 years to life on the conviction of murder in the second degree, a determinate term of imprisonment of 10 years to be followed by a period of postrelease supervision of 5 years on each conviction of burglary in the first degree, and an indeterminate term of imprisonment of 2a to 7 years on the conviction of aggravated criminal contempt, with the sentences imposed on the convictions of burglary in the first degree and aggravated criminal contempt to run concurrently with each other, and consecutively to the sentence imposed on the conviction of murder in the second degree.
ORDERED that the judgment is modified, on the law, by providing that the sentences imposed on the conviction of burglary in the first degree under count 2 of the indictment and aggravated criminal contempt shall run concurrently with the sentence imposed on the conviction of murder in the second degree; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court'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 wife was not against the weight of the evidence (Penal Law § 125.25[1][a][i]; see Penal Law § 125.20[2]; People v Roche, 98 N.Y.2d 70, 75-76; People v Casassa, 49 N.Y.2d 668; People v Colon, 142 A.D.3d 1100, 1101). Considering the evidence presented, including the conflicting expert testimony, the court 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 Colon, 142 A.D.3d at 1101; People v Kwas, 96 A.D.3d 877, 877-878; People v Ayala, 221 A.D.2d 457). Accordingly, there is no basis to disturb the court's rejection of the defendant's affirmative defense of extreme emotional disturbance.
The defendant's contention that the prosecution's expert witness impermissibly relied upon hearsay evidence in arriving at his opinion is unpreserved for appellate review (see People v Graves, 85 N.Y.2d 1024, 1027; People v Hernandez, 166 A.D.3d 647, 648), and, in any event, without merit (see People v Hernandez, 166 A.D.3d at 648; Holshek v Stokes, 122 A.D.2d 777, 779).
As the People correctly concede, the sentences imposed on the convictions of burglary in the first degree premised upon the infliction of physical injury to a non-participant to the crime (Penal Law § 140.30[2]) and aggravated criminal contempt (Penal Law § 215.52[1]), counts 2 and 4 of the indictment, respectively, were each required to run concurrently with the sentence imposed on the conviction of murder in the second degree, count 1 of the indictment, as the physical injury element of the aforementioned crimes is subsumed in the act of causing death (see Penal Law § 70.25[2]; People v Brahney, 29 N.Y.3d 10, 16). Consecutive sentences were permissible, however, for the conviction of burglary in the first degree premised upon the use, or threatened use, of a dangerous instrument (Penal Law § 14030[3]), count 3 of the indictment, and the sentence imposed upon the conviction of murder in the second degree, since these two crimes do not share, by definition, an overlapping actus reus (see People v Brahney, 29 N.Y.3d at 16) Contrary to the defendant's contention, concurrent sentences were not mandated simply because the sentences made to run consecutively to each other were each required to run concurrently with the other sentences imposed (see People v Colon, 189 A.D.3d 873, 875; People v Rodriguez, 112 A.D.3d 488, 489, affd 25 N.Y.3d 238; People v Riley, 309 A.D.2d 879, 881).
The sentences imposed were not excessive (see People v Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit.
MASTRO, J.P., MILLER, CONNOLLY and BRATHWAITE NELSON, JJ., concur.