People v. Johnstone

184 A.D.2d 929, 584 N.Y.S.2d 952, 1992 N.Y. App. Div. LEXIS 8160

Opinion

Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered April 23, 1991, upon a verdict convicting defendant of the crime of manslaughter in the first degree.

The sole issue raised by defendant on this appeal is that the prison sentence he received of 7 to 21 years is harsh and excessive. We disagree. To mitigate the gravity of the offense, defendant points to his lack of a significant criminal record and the fact that the jury found that he was acting under extreme emotional disturbance when he committed the acts charged. Nevertheless, the jury still found him guilty of intentionally killing another person. Extreme emotional disturbance does not negate the intentional nature of the killing, but rather constitutes a mitigating factor which reduces what would otherwise be a murder into manslaughter in the first degree (Penal Law § 125.20 [2]). We also note the brutal nature of the crime. The victim, who was 60 years old at the time, a female and intoxicated, was struck in the back of the head nine times with a hammer. In our view, insofar as County Court did not impose the harshest possible sentence, 8Vi to 25 years, any mitigating or extenuating circumstances were already considered by the court (see, People v Ambrose, 160 AD2d 1097, lv denied 76 NY2d 784).

Mikoll, J. P., Levine, Mercure, Crew III and Harvey, JJ., concur. Ordered that the judgment is affirmed.