Opinion
2001-07088.
Decided April 19, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered June 28, 2001, convicting him of murder in the second degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence.
Robert C. Mitchell, Riverhead, N.Y. (Douglas O'Connor of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Guy Arcidiacono of counsel), for respondent.
Before: HOWARD MILLER, J.P., GLORIA GOLDSTEIN, THOMAS A. ADAMS, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
We reject the defendant's contention that he established, by a preponderance of the evidence, the affirmative defense of extreme emotional disturbance to the charge of murder in the second degree ( see Penal Law § 125.25[a]; People v. Roche, 98 N.Y.2d 70, 75). The defendant presented no evidence that he suffered from a mental infirmity not rising to the level of insanity at the time of the homicide ( see People v. Smith, N.Y.3d [Feb. 17, 2004]; People v. Roche, supra at 75-76), and his conduct was "inconsistent with the loss of control associated with extreme emotional disturbance" ( People v. Yong Ho Han, 200 A.D.2d 780, 781; see People v. Roche, supra at 77; People v. Barber, 2 A.D.3d 1290; People v. Murden, 190 A.D.2d 822).
The defendant received the effective assistance of counsel ( see People v. Benevento, 91 N.Y.2d 708).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80).
H. MILLER, J.P., GOLDSTEIN, ADAMS and COZIER, JJ., concur.