People v. McKenzie

Appellate Division of the Supreme Court of New York

People v. McKenzie

81 A.D.3d 1375, 916 N.Y.S.2d 861

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 10, 2011

StatusPublished

Cited by1 cases

This text of 81 A.D.3d 1375 (People v. McKenzie) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. McKenzie, 81 A.D.3d 1375, 916 N.Y.S.2d 861 (N.Y. Ct. App. 2011).

Pincite

Opinion

Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered August 22, 2007. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]). Contrary to defendant’s contention, County Court properly refused to charge the affirmative defense of extreme emotional disturbance. Such a charge is not appropriate where, as here, the defendant’s conduct before, during and after the offense is “inconsistent with the loss of self-control associated with the defense” (People v Roche, 98 NY2d 70, 77 [2002]; see People v Smith, 1 NY3d 610, 612 [2004]). Viewing the evidence in the light most favorable to defendant, we conclude that there was not the requisite “sufficient credible evidence . . . presented for the jury to find, by a preponderance of the evidence, that the elements of the affirmative defense [had] been established” (People v White, 79 NY2d 900, 902-903 [1992]), particularly in view of the conflicting reasons given by defendant for his actions.

Contrary to defendant’s further contention, the sentence is not unduly harsh or severe.

All concur except Pine, J., who is not participating. Present— Scudder, P.J., Smith, Green, Pine and Gorski, JJ.

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Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered August 22, 2007. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]). Contrary to defendant’s contention, County Court properly refused to charge the affirmative defense of extreme emotional disturbance. Such a charge is not appropriate where, as here, the defendant’s conduct before, during and after the offense is “inconsistent with the loss of self-control associated with the defense” (People v Roche, 98 NY2d 70, 77 [2002]; see People v Smith, 1 NY3d 610, 612 [2004]). Viewing the evidence in the light most favorable to defendant, we conclude that there was not the requisite “sufficient credible evidence . . . presented for the jury to find, by a preponderance of the evidence, that the elements of the affirmative defense [had] been established” (People v White, 79 NY2d 900, 902-903 [1992]), particularly in view of the conflicting reasons given by defendant for his actions.

Contrary to defendant’s further contention, the sentence is not unduly harsh or severe.

All concur except Pine, J., who is not participating. Present— Scudder, P.J., Smith, Green, Pine and Gorski, JJ.

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Bluebook (online)

81 A.D.3d 1375, 916 N.Y.S.2d 861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mckenzie-nyappdiv-2011.

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