Opinion
March 23, 1995
Appeal from the Supreme Court, New York County (Rose Rubin, J.).
Contrary to defendant's contention, the verdict was not against the weight of the evidence. Defendant failed to prove, by a preponderance of the evidence, that he acted under the influence of extreme emotional disturbance. (Penal Law § 125.25 [a]; see, People v. White, 79 N.Y.2d 900, 902-903.) In this regard, defendant's pretrial confessions contradict his trial testimony that he lost control during the struggle with the victim and blacked-out after stabbing her twice in self-defense. To the contrary, his confessions demonstrate that defendant was in full command of his faculties when he brutally murdered the victim by stabbing her approximately thirty-one times and gagging her with a cloth. In light of defendant's confessions, the court, as trier of fact, (see, People v. Casassa, 49 N.Y.2d 668, 679-680, cert denied 449 U.S. 842), was entitled to reject the testimony of defendant's expert psychiatrist.
In light of the heinous nature of the crime, the sentence imposed, five years below the maximum sentence permitted, was neither harsh nor excessive.
Concur — Ellerin, J.P., Rubin, Ross, Nardelli and Williams, JJ.