Opinion
No. 2003-05715.
May 1, 2007.
Appeal by the defendant from a judgment of the County Court, Westchester County (Adler, J.), rendered July 8, 2003, convicting him of murder in the second degree, attempted murder in the second degree, criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree (three counts), reckless endangerment in the first degree, and unlawful wearing of a body vest, upon a jury verdict, and imposing sentence.
Roger S. Kraminitz, Croton-on-Hudson, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Richard Longworth Hecht, and Anthony J. Servino of counsel), for respondent.
Before: Mastro, J.P., Rivera, Dillon and Carni, JJ.
Ordered that the judgment is affirmed.
The defendant's contention that it was error to submit to the jury a count of depraved indifference murder ( see Penal Law § 125.25) as an alternative to intentional murder ( see Penal Law § 125.25) is foreclosed because the defendant was convicted of intentional murder and the jury, pursuant to the court's instructions, did not consider the depraved indifference murder count ( see People v Griffin, 28 AD3d 578, 579; cf. People v Falcon, 281 AD2d 368, 369). As a result, any error in submitting the depraved indifference murder count was harmless ( cf. People v Speight, 158 AD2d 729, 729-730).
The Supreme Court properly denied the defendant's request for a jury charge on the affirmative defense of extreme emotional disturbance. The defendant presented no evidence that he suffered from a mental infirmity rising to the level of insanity at the time of the homicide, and his conduct was inconsistent with the loss of control associated with extreme emotional disturbance ( see People v Smith, 1 NY3d 610, 612; People v Buckner, 23 AD3d 492; People v Zamora, 309 AD2d 957, 958; People v McDonald, 199 AD2d 420; People v Tulloch, 179 AD2d 794, 795).
The defendant's remaining contention is without merit.