People v. Drake

216 A.D.2d 873, 629 N.Y.S.2d 361, 1995 N.Y. App. Div. LEXIS 7179

Opinion

Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of murder in the second degree and criminal possession of a weapon in the third degree following a jury trial, defendant argues that the verdict is against the weight of the evidence because he met his burden of establishing the defense of extreme emotional disturbance. We disagree. Whether the defense applies is largely discretionary (see, People v Casassa, 49 NY2d 668, 679-680, cert denied 449 US 842), and the jury was not required to accept defendant’s testimony. It was entitled to find that defendant failed to meet his burden of establishing the defense (see, People v Hartsock, 189 AD2d 991; see generally, People v Casassa, supra, at 678-680).

The contention that prosecutorial misconduct on summation deprived defendant of a fair trial is unpreserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). We conclude that defendant’s sentence is neither unduly harsh nor severe. (Appeal from Judgment of Erie County Court, D’Amico, J.—Murder, 2nd Degree.) Present—Denman, P. J., Pine, Wesley, Balio and Davis, JJ.