Opinion
March 7, 1988
Appeal from the Supreme Court, Kings County (Finnegan, J.).
Ordered that the judgment is affirmed.
The defendant was indicted for, and convicted of, the crime of murder in the second degree, based on the brutal and fatal knife slaying of one Sylvia Delgado. Viewing the evidence in a light most favorable to the prosecution, we find that it is legally sufficient to support the defendant's conviction of the crimes charged (see, People v. Contes, 60 N.Y.2d 620). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15). The sentence imposed upon defendant was appropriate under the circumstances (People v. Suitte, 90 A.D.2d 80).
On the instant appeal, the defendant argues, inter alia, that Criminal Term erred in refusing to suppress the first statement made by him to the police and the identification testimony of the eyewitness to the crime. We disagree. The evidence adduced in the record clearly supports Criminal Term's determination that the defendant's first statement was not made in response to express questioning or its functional equivalent and that the pretrial identification procedures utilized by the police were properly conducted (People v. Ferro, 63 N.Y.2d 316, 319-323, cert denied 472 U.S. 1007; People v. Huffman, 61 N.Y.2d 795; People v Prochilo, 41 N.Y.2d 759, 761). Further, the court correctly ruled that the statement made by the gravely wounded victim to police within minutes of the attack upon her was admissible as a spontaneous declaration or excited utterance (see, People v Edwards, 47 N.Y.2d 493; People v. Vigilante, 122 A.D.2d 900, lv denied 68 N.Y.2d 1005; People v. Eastman, 114 A.D.2d 509, lv denied 67 N.Y.2d 651; see also, People v. Nieves, 67 N.Y.2d 125, 135-137).
The defendant further argues that the trial court committed reversible error by (1) permitting him to proceed pro se at trial and (2) refusing to charge the affirmative defense of "extreme emotional disturbance" (Penal Law § 125.25 [a]) as requested by the defendant. Neither of these arguments has any merit. The record indicates that (1) the defendant's request to proceed pro se was unequivocal and timely asserted, (2) there was a knowing and intelligent waiver of the right to counsel, and (3) the defendant did not engage in conduct which would warrant the denial of his request to act as his own counsel (see, People v Smith, 68 N.Y.2d 737; People v. McIntyre, 36 N.Y.2d 10, 17). The record further indicates that the defendant, who was assisted at the trial by a legal adviser (see, People v. Sawyer, 57 N.Y.2d 12, 22, rearg dismissed 57 N.Y.2d 776, cert denied 459 U.S. 1178), conducted his defense in an orderly fashion and with reasonable competency.
With respect to the trial court's refusal to charge "extreme emotional disturbance", the evidence presented was insufficient for a jury to find by a preponderance of the evidence that the elements of this affirmative defense were satisfied (People v Moye, 66 N.Y.2d 887; People v. Walker, 64 N.Y.2d 741, rearg dismissed 65 N.Y.2d 924).
Finally, the defendant's remaining arguments, including those raised in his pro se supplemental brief, are either unpreserved for appellate review or without merit. Mangano, J.P., Bracken, Kunzeman and Harwood, JJ., concur.