People v. Delgado

136 A.D.2d 651, 523 N.Y.S.2d 884, 1988 N.Y. App. Div. LEXIS 429

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 1988
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Owens, J.), rendered August 21, 1985, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing concurrent sentences of 25 years to life and IV2 to 15 years, respectively.

Ordered that the judgment is modified, on the law, by reducing the sentence on the conviction of criminal possession of a weapon to 5 to 15 years. As so modified, the judgment is affirmed.

Viewing the evidence in the light most favorable to the defendant, the court properly refused to charge extreme emotional disturbance (see, People v Walker, 64 NY2d 741). The defendant failed to present sufficient evidence that he in fact acted under the influence of extreme emotional disturbance and that there was a reasonable explanation for the emotional disturbance (cf, People v Moye, 66 NY2d 887).

Concededly, the sentence on the criminal possession of a weapon count must be reduced from IV2 to 15 years’ imprisonment to 5 to 15 years’ imprisonment because the minimum term of this sentence cannot exceed one third of the maximum term (see, Penal Law § 70.02 [1] [b]; [3] [b]; [4]; § 265.03). The sentence imposed is, however, not otherwise excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Thompson, J. P., Brown, Spatt and Sullivan, JJ., concur.