People v. Garcia

210 A.D.2d 143, 621 N.Y.S.2d 847, 1994 N.Y. App. Div. LEXIS 12991

Opinion

—Judgment, Supreme Court, Bronx County (Stephen Barrett, J.), rendered August 9, 1991, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 23 years to life and 5 to 15 years, respectively, unanimously affirmed.

Defendant’s unsupported claim, that his constitutional right to a unanimous verdict was violated because the court did not explicitly instruct the jury that it had to unanimously reject his affirmative defense of extreme emotional disturbance is unpreserved for appellate review as a matter of law (CPL 470.05 [2]). We decline to review the claim in the interests of justice, since we find that there was insufficient evidence to warrant the submission of the defense to the jury in the first place. In any event, if we were to consider the argument we would find it to be meritless, since the proper standard was conveyed to the jury. Concur—Sullivan, J. P., Wallach, Ross, Rubin and Williams, JJ.