Opinion
November 4, 1991
Appeal from the County Court, Nassau County (Baker, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of intentional murder beyond a reasonable doubt. Even assuming that the evidence proffered by the defendant at trial sufficed to meet the threshold requirement that he acted under the influence of extreme emotional disturbance, the trial court could have reasonably found that he failed to satisfy his burden of establishing a reasonable explanation or excuse for the emotional disturbance (see, People v. Casassa, 49 N.Y.2d 668, cert denied 449 U.S. 842; People v. Cooks, 157 A.D.2d 740; People v Kilpatrick, 154 A.D.2d 621).
Contrary to the contention of the defendant, the trial court's verdict was consistent with the holding in People v Gallagher ( 69 N.Y.2d 525). There is no indication that the trial court considered the counts of intentional and depraved indifference murder in the conjunctive rather than in the alternative. Further, the trial court expressly dismissed the count of depraved indifference murder, convicting the defendant of intentional murder. Thompson, J.P., Kunzeman, Lawrence and Miller, JJ., concur.