| People v Jarvis |
| 2009 NY Slip Op 02426 [60 AD3d 1478] |
| March 27, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Drue Jarvis,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Dennis M. Kehoe, A.J.), renderedMay 16, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the firstdegree and murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of murder in the second degree and dismissing counttwo of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial ofmurder in the first degree (Penal Law § 125.27 [1] [a] [vii]; [b]) and murder in the seconddegree (§ 125.25 [3]). Contrary to defendant's contention, County Court properly refusedto charge the affirmative defense of extreme emotional disturbance. "[Defendant's] behaviorimmediately before and after the killing was inconsistent with the loss of control associated withthe affirmative defense" (People v Murden, 190 AD2d 822, 822 [1993], lvdenied 81 NY2d 1017 [1993]; see People v Roche, 98 NY2d 70, 76-77 [2002];People v McGrady, 45 AD3d 1395 [2007], lv denied 10 NY3d 813 [2008]).Viewing the evidence in the light most favorable to defendant, we conclude that there was not"sufficient credible evidence . . . presented for the jury to find, by a preponderanceof the evidence, that the elements of the affirmative defense [had] been established" (Peoplev White, 79 NY2d 900, 902-903 [1992]).
As the People correctly concede, however, that part of the judgment convicting defendant ofmurder in the second degree must be reversed and count two of the indictment dismissed becauseit is an inclusory concurrent count of murder in the first degree (see CPL 300.40 [3] [b];see People v Miller, 6 NY3d 295, 300-303 [2006]; People v Jackson, 41 AD3d1268, 1270 [2007], lv denied 10 NY3d 812 [2008], reconsideration denied 11NY3d 789 [2008]). We therefore modify the judgment accordingly. Finally, although defendantrequests that we disavow our prior decisions holding that there is no requirement that the policeelectronically record interrogations, we decline to do so (see People v Dukes [appeal No.1], 53 AD3d 1101 [2008], lv denied 11 NY3d 831 [2008]). Present—Hurlbutt,J.P., Martoche, Fahey, Carni and Gorski, JJ.