Opinion
June 13, 1988
Appeal from the Supreme Court, Queens County (Clabby, J.).
Ordered that the judgment is affirmed.
The evidence adduced at the trial, at which both the defendant and the codefendant testified, when viewed in the light most favorable to the defendant, was insufficient to establish by a preponderance of the evidence that the defendant acted under the influence of an extreme emotional disturbance or that there was a reasonable explanation or excuse for him to have been under the influence of such a disturbance. Thus the court did not err in denying the defendant's request to charge the jury regarding the affirmative defense of extreme emotional disturbance (see, People v Moye, 66 N.Y.2d 887).
The court's failure to charge that the codefendant was an accomplice as a matter of law does not require reversal, as the case against the defendant did not rest substantially on the codefendant's testimony and the proof against the defendant was overwhelming (see, People v Strawder, 124 A.D.2d 758; People v Ramos, 68 A.D.2d 748).
The interests of justice do not warrant the substitution of our discretion for that of the sentencing court (see, People v Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Lawrence, J.P., Kunzeman, Kooper and Harwood, JJ., concur.