People v. Phillips

187 A.D.2d 539, 589 N.Y.S.2d 924, 1992 N.Y. App. Div. LEXIS 12743

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Fertig, J.), rendered February 5, 1990, convicting him of murder in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s claims with respect to certain aspects of the trial court’s charge are unpreserved for appellate review due to defense counsel’s failure to object to the charge as given (see, CPL 470.05 [2]; People v Thomas, 50 NY2d 467). In any event, we note that the trial court did not err in refusing to instruct the jury on the defense of extreme emotional disturbance. Viewing the record in the light most favorable to the defendant, there was insufficient evidence for the jury to determine that the defendant either acted under the subjective influence of extreme emotional disturbance or that there was a reasonable explanation for this disturbance (see, People v Moye, 66 NY2d 887; People v Casassa, 49 NY2d 668). The testimony of the defense witnesses suggested, at most, that the defendant was angry and agitated after a fight with the victim (see, People v Mejia, 166 AD2d 675; People v Reeves, 163 AD2d 590).

Further, although the trial court’s charge fell short of conveying all subjective criteria with respect to the defense of justification, we do not find that it constituted reversible error under the circumstances of this case (see, Penal Law § 35.15; People v Wesley, 76 NY2d 555; People v Goetz, 68 NY2d 96; People v Noor, 177 AD2d 517; People v Acevedo, 176 AD2d 886).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Thompson, J. P., Bracken, Pizzuto and Santucci, JJ., concur.