Opinion
2012-12-19
The PEOPLE, etc., respondent, v. Robert ANDERSON, appellant.
Alexander M. Dudelson, Brooklyn, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel), for respondent.
Alexander M. Dudelson, Brooklyn, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel), for respondent.
PETER B. SKELOS, J.P., ANITA R. FLORIO, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.), rendered March 20, 2009, convicting him of murder in the second degree and criminal contempt in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the People established at the suppression hearing that the police had probable cause to arrest him, based on information provided by a witness ( see People v. Nealy, 32 A.D.3d 400, 401, 819 N.Y.S.2d 106;People v. Banks, 208 A.D.2d 759, 759–760, 617 N.Y.S.2d 796).
The County Court correctly denied the defendant's request to charge manslaughter in the first degree and manslaughter in the second degree as lesser-included offenses of murder in the second degree. Viewing the evidence in the light most favorable to the defendant ( see People v. Martin, 59 N.Y.2d 704, 463 N.Y.S.2d 419, 450 N.E.2d 225), we find that there was no reasonable view of the evidence to support a finding that he intended to cause serious physical injury to the victim rather than kill her ( seePenal Law § 125.20[1]; People v. Butler, 84 N.Y.2d 627, 633–634, 620 N.Y.S.2d 775, 644 N.E.2d 1331;People v. Sostre, 70 A.D.3d 865, 894 N.Y.S.2d 122), or that he acted recklessly in repeatedly shooting the victim ( seePenal Law § 125.15 [1]; People v. Walston, 97 A.D.3d 609, 610, 948 N.Y.S.2d 111;People v. Spina, 275 A.D.2d 902, 904, 713 N.Y.S.2d 394;People v. Etienne, 250 A.D.2d 776, 671 N.Y.S.2d 1003).
Furthermore, the County Court properly refused to charge the affirmative defense of extreme emotional disturbance. The defendant's behavior “ ‘immediately before and after the killing was inconsistent with the loss of control associated with the affirmative defense’ ” ( People v. Trovato, 68 A.D.3d 1023, 1024, 891 N.Y.S.2d 453, quoting People v. Murden, 190 A.D.2d 822, 822, 593 N.Y.S.2d 837;see People v. Lynch, 92 A.D.3d 805, 806, 938 N.Y.S.2d 340). The defendant failed to establish both the subjective and objective elements of the defense of extreme emotional disturbance ( see People v. Smith, 1 N.Y.3d 610, 612, 776 N.Y.S.2d 198, 808 N.E.2d 333;People v. Roche, 98 N.Y.2d 70, 75–77, 745 N.Y.S.2d 775, 772 N.E.2d 1133;People v. Trovato, 68 A.D.3d at 1024, 891 N.Y.S.2d 453).