| People v Parra |
| 2009 NY Slip Op 00111 [58 AD3d 479] |
| January 13, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Sergio Parra, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Mary C. Farrington of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered April 9, 2007,convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to aterm of 23 years to life, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Defendantfailed to prove by a preponderance of the evidence that he was acting under an extremeemotional disturbance (Penal Law § 125.25 [1] [a]) when he stabbed his estranged wife.The jury had an ample basis on which to reject the claim that defendant's discovery of the factthat his wife was living with another man provided a reasonable explanation or excuse for hisclaimed mental state (see People v Maher, 89 NY2d 456, 463 [1997]; People vPiquion, 283 AD2d 233, 234 [2001], lv denied 96 NY2d 906 [2001]). Furthermore,there was extensive evidence of conduct by defendant before and after the crime that not onlycontradicted his defense, but also undermined the testimony of defendant's expert witness, whowas impeached by his lack of awareness of important parts of this evidence (see People vMaher, 89 NY2d at 463).
Defendant's challenges to the court's jury instructions concerning the requirement ofunanimity and the definition of the term preponderance of the evidence are unpreserved. We donot find any mode-of-proceedings error exempt from preservation requirements (see People vThomas, 50 NY2d 467, 472 [1980]), and we decline to review these unpreserved claims inthe interest of justice. As an alternative holding, we also reject them on the merits. The courtsufficiently instructed the jury on both matters, and the differences between the court's phrasing,which followed the New York Criminal Jury Instructions, and the phrasing suggested bydefendant amounts, in each instance, to a difference in form rather than substance. The absenceof objections by trial counsel did not deprive defendant of effective assistance, since nothing inthe instructions at issue was constitutionally deficient or caused defendant any prejudice.Concur—Andrias, J.P., Nardelli, Moskowitz, Renwick and Freedman, JJ.