Opinion
November 25, 1991
Appeal from the Supreme Court, Kings County (Zweibel, J.).
Ordered that the judgment is affirmed.
Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15) and that the defendant's conviction of murder in the second degree should not be reduced to the crime of manslaughter in the first degree. Although the defendant, through the testimony of a psychiatrist, attempted to establish that he acted under the influence of extreme emotional disturbance at the time he killed his ex-wife, the People presented evidence, corroborated by the defendant's own testimony, that the defendant was an angry and jealous ex-husband who had previously threatened to kill the victim. The jury, which had the benefit of observing the psychiatrist and the defendant testifying, could reasonably reject the opinion of the psychiatrist (see, People v. Bruetsch, 137 A.D.2d 823, 824). From the evidence, the jury was free to conclude that the defendant's actions were rational, deliberate, and malevolent, rather than an uncontrollable response to his ex-wife's alleged unfaithfulness (see, People v. Ludwigsen, 159 A.D.2d 591, 592; People v. David, 143 A.D.2d 1031, 1032, People v Guevara, 134 A.D.2d 518, 519). Moreover, even if the jury did accept that the defendant murdered his ex-wife while under the influence of extreme emotional disturbance, it was entitled to reject the excuse offered for this emotional state as so unreasonable that it did not warrant mitigation (see, People v Casassa, 49 N.Y.2d 668, 681, cert denied 449 U.S. 842; People v Ludwigsen, supra; People v. Torres, 144 A.D.2d 709, 710; People v David, supra; People v. Guevara, supra).
With respect to the defendant's claim of prejudice resulting from the People's summation, we find that the issues of the propriety of the comments complained of are unpreserved for appellate review (see, CPL 470.05; People v. Winfield, 154 A.D.2d 725; People v. Fisher, 148 A.D.2d 628, 629; People v Flores, 139 A.D.2d 525, 526). In any event, the comments were responsive to the defense counsel's summation and constituted a fair comment upon the evidence (see, People v. Ashwal, 39 N.Y.2d 105; People v. Bartolomeo, 126 A.D.2d 375, 390; People v. Moore, 125 A.D.2d 501, 502).
The sentence imposed was not harsh or excessive (see, People v Suitte, 90 A.D.2d 80). Thompson, J.P., Rosenblatt, Miller and Ritter, JJ., concur.