| People v Cesario |
| 2010 NY Slip Op 02647 [71 AD3d 587] |
| March 30, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Edelmiro Cesario, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Thomas R. Villecco of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (John Carter, J.), rendered July 18, 2007,convicting defendant, after a jury trial, of manslaughter in the first degree (two counts), criminalpossession of a weapon in the second degree and endangering the welfare of a child (twocounts), and sentencing him to an aggregate term of 50 years, unanimously affirmed.
The court properly declined to submit manslaughter in the second degree as a lesser includedoffense. There was no reasonable view of the evidence, viewed most favorably to defendant andin light of the "principle of deference to the jury on questions of mens rea" (People vFernandez, 64 AD3d 307, 310 [2009], appeal withdrawn 13 NY3d 796 [2009]), thathe acted with anything less than intent to kill or seriously injure the two victims (see People vButler, 84 NY2d 627, 634 [1994]). During a dispute, defendant went to another room of theapartment, took a pistol from a safe, returned, shot one victim six times, and shot the other victimthree times. Since defendant had to squeeze the trigger of his semiautomatic weapon nineseparate times, there is no reasonable possibility that the weapon was discharged throughcareless handling. Furthermore, nothing in the prosecution or defense case tended to explain whydefendant would fire nine shots, other than to hit his victims. The testimony of defendant and hispsychiatric expert witness that defendant experienced a loss of control may have supportedcounsel's successful request for submission of the defense of extreme emotional disturbance, butit did not create a reasonable view that defendant acted without intent to cause death or seriousphysical injury.[*2]
The record does not establish that defendant's sentencewas based on any improper criteria, and we perceive no basis for reducing the sentence.Concur—Saxe, J.P., Catterson, Moskowitz, Freedman and RomÁn, JJ.