Opinion
April 1, 1996
Appeal from the Supreme Court, Queens County (Cooperman, J.).
Ordered that the judgment is affirmed.
The trial court properly declined to submit manslaughter in the first degree to the jury on the theory of "extreme emotional disturbance", as there was insufficient evidence for a jury to find, by a preponderance of the evidence, that the elements of this affirmative defense to murder in the second degree were established ( see, People v. Walker, 64 N.Y.2d 741, 742). Although the defendant contended that he was frightened at the time of the shooting, his testimony had been that he had acted in selfdefense against the victim's attacks. Moreover, the defendant's conduct in leaving the scene after the shooting, consciously deciding not to return home, disposing of the weapon, fleeing the State the following day, and avoiding apprehension for a period of over two years, are inconsistent with the loss of control associated with extreme emotional disturbance ( see, People v. Murden, 190 A.D.2d 822; People v. Yong Ho Han, 200 A.D.2d 780).
Nor was it error for the court to refuse the defendant's request to charge the lesser-included offense of manslaughter in the first degree. No reasonable view of the evidence would support a finding that the defendant committed the lesser offense but did not commit the greater ( see, People v. Glover, 57 N.Y.2d 61; People v. Green, 56 N.Y.2d 427).
Viewed as a whole, in light of the evidence presented at trial, we find that the court adequately instructed the jury on the defense of justification ( see, People v. Andujas, 79 N.Y.2d 113). The testimony revealed that the defendant, after firing one shot at the victim, pursued the victim and shot him four more times. The medical testimony was consistent with all the shots having been fired as the victim's back was to the defendant. The jury could have thus concluded that the defendant did not reasonably believe that the victim was about to use deadly physical force against him ( see, Penal Law § 35.15). Moreover, the jury could have concluded that the defendant's actions constituted an excessive use of deadly force, and that it was the excessive force which caused the victim's death ( see, People v. Reeder, 209 A.D.2d 551).
The defendant's sentence was not excessive ( see, People v Suitte, 90 A.D.2d 80). Balletta, J.P., Thompson, Santucci and Florio, JJ., concur.