Opinion
1999-11743
Argued October 25, 2001.
November 26, 2001.
Appeal by the defendant from a judgment of the County Court, Nassau County (Calabrese, J.), rendered November 19, 1999, convicting him of murder in the first degree and rape in the first degree, upon a jury verdict, and imposing sentence.
Alan F. Katz, Garden City, N.Y., for appellant.
Denis Dillon, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Jodi A. Danzig of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, THOMAS A. ADAMS, JJ.
ORDERED that the judgment is modified, on the law, by providing that the term of imprisonment imposed on the conviction for murder in the first degree shall run concurrently with the term of imprisonment imposed on the conviction for rape in the first degree; as so modified, the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt of murder in the first degree is unpreserved for appellate review (see, CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Udzinski, 146 A.D.2d 245). In any event, 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 beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
On this record, the jury was free to reject the defendant's affirmative defense of extreme emotional disturbance (see, People v. Maher, 89 N.Y.2d 456; People v. Ayala, 221 A.D.2d 457; see also, People v. Casassa, 49 N.Y.2d 668, cert denied 449 U.S. 842).
As the People correctly concede, the sentence imposed on the conviction for rape in the first degree must run concurrently with the sentence imposed on the conviction for murder in the first degree, as the rape constituted the underlying felony for the felony murder conviction, and was a material element of that crime (see, Penal Law § 70.25; People v. Laureano, 87 N.Y.2d 640, 643; People v. Benitez, 281 A.D.2d 487, 488, lv denied 96 N.Y.2d 916).
The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit.
SANTUCCI, J.P., McGINITY, LUCIANO and ADAMS, JJ., concur.