Opinion
1176 KA 14–01600
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Vinh D. PHAM, Also Known as Vinh Phan, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of murder in the second degree ( Penal Law § 125.25 [1] ). Defendant failed to object to County Court's questioning of the People's expert witness, and therefore his contention "that the Trial Judge's extensive participation in the questioning of [that] witness[ ] deprived him of a fair trial ... is not adequately preserved for this court's review" ( People v. Charleston, 56 N.Y.2d 886, 887, 453 N.Y.S.2d 399, 438 N.E.2d 1114 [1982] ; see CPL 470.05[2] ; People v. West, 129 A.D.3d 1629, 1630, 12 N.Y.S.3d 455 [4th Dept. 2015], lv denied 26 NY3d 972 [2015] ). In any event, that contention lacks merit. The court was "entitled to question [the] witness[ ] to clarify testimony and to facilitate the progress of the trial and to elicit relevant and important facts" ( People v. Williams, 107 A.D.3d 1516, 1517, 966 N.Y.S.2d 784 [4th Dept. 2013], lv denied 21 N.Y.3d 1047, 972 N.Y.S.2d 544, 995 N.E.2d 860 [2013] [internal quotation marks omitted]; see People v. Pollard, 70 A.D.3d 1403, 1405, 894 N.Y.S.2d 691 [4th Dept. 2010], lv denied 14 N.Y.3d 891, 903 N.Y.S.2d 779, 929 N.E.2d 1014 [2010] ; People v. Brown, 256 A.D.2d 1109, 1109, 685 N.Y.S.2d 158 [4th Dept. 1998], lv denied 93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097 [1999] ), and we conclude that it did not improperly "take[ ] on either the function or appearance of an advocate" ( People v. Arnold, 98 N.Y.2d 63, 67, 745 N.Y.S.2d 782, 772 N.E.2d 1140 [2002] ; see People v. Yut Wai Tom, 53 N.Y.2d 44, 57–58, 439 N.Y.S.2d 896, 422 N.E.2d 556 [1981] ).
We reject defendant's contention that the verdict is against the weight of the evidence based on the affirmative defense of extreme emotional disturbance (see Penal Law § 125.25[1][a] ; see generally People v. Moye, 66 N.Y.2d 887, 889–890, 498 N.Y.S.2d 767, 489 N.E.2d 736 [1985] ) inasmuch as defendant failed to establish that affirmative defense by a preponderance of the evidence (see People v. Smith, 1 N.Y.3d 610, 612, 776 N.Y.S.2d 198, 808 N.E.2d 333 [2004] ; People v. Wylie, 303 A.D.2d 993, 994, 756 N.Y.S.2d 801 [4th Dept. 2003], lv denied 100 N.Y.2d 567, 763 N.Y.S.2d 825, 795 N.E.2d 51 [2003] ; see generally People v. White, 79 N.Y.2d 900, 902–903, 581 N.Y.S.2d 651, 590 N.E.2d 236 [1992] ). Where, as here, there was "conflicting expert testimony on the issue of defendant's mental condition, the determination of the trier of fact to accept or reject the opinion of an expert, in whole or in part, is entitled to deference" ( People v. Amin, 294 A.D.2d 863, 863, 742 N.Y.S.2d 746 [4th Dept. 2002], lv denied 98 N.Y.2d 672, 746 N.Y.S.2d 461, 774 N.E.2d 226 [2002] ; see People v. Coombs, 56 A.D.3d 1195, 1196, 867 N.Y.S.2d 322 [4th Dept. 2008], lv denied 12 N.Y.3d 782, 879 N.Y.S.2d 59, 906 N.E.2d 1093 [2009] ; People v. Wall, 48 A.D.3d 1107, 1107–1108, 850 N.Y.S.2d 787 [4th Dept. 2008], lv denied 11 N.Y.3d 742, 864 N.Y.S.2d 401, 894 N.E.2d 665 [2008] ).
The sentence is not unduly harsh or severe.