Opinion
2002-05385.
Decided April 26, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered May 14, 2002, convicting him of murder in the second degree, criminal possession of a controlled substance in the third degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. (Alexis A. Ascher of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Adam S. Charnoff of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, SONDRA MILLER, GLORIA GOLDSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review the claimed instances of prosecutorial misconduct raised on appeal, and we decline to review them in the exercise of our interest of justice jurisdiction ( see People v. Balls, 69 N.Y.2d 641; People v. Hinckson, 266 A.D.2d 404; People v. Scotti, 220 A.D.2d 543). In any event, the defendant was not deprived of a fair trial as a result of prosecutorial misconduct ( see People v. Crimmins, 36 N.Y.2d 230, 241-242; People v. Brosnan, 32 N.Y.2d 254, 262; People v. Dunn, 158 A.D.2d 941).
The defendant's claim of error in the court's charge on the affirmative defense of extreme emotional disturbance is similarly unpreserved for appellate review ( see People v. Udzinski, 146 A.D.2d 245, 251). In any event, the contention is without merit, as the court's charge, when read as a whole, "adequately conveyed the legal principles to be applied by the jury in determining whether the defendant had proven by a preponderance of the evidence that he had acted under an extreme emotional disturbance" ( People v. Zito, 299 A.D.2d 569, 570).
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., ALTMAN, S. MILLER and GOLDSTEIN, JJ., concur.