| People v Trojan |
| 2010 NY Slip Op 03972 [73 AD3d 818] |
| May 4, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Russell Trojan, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel; NavaNaftaly on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (Bartlett,J.), rendered July 22, 2008, convicting him of attempted murder in the second degree, assault inthe first degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict,and sentencing him to a determinate term of 25 years of imprisonment followed by a period offive years of postrelease supervision on the conviction of attempted murder in the second degree,a determinate terms of five years of imprisonment on the conviction of assault in the first degree,and a definite term of imprisonment of one year on the conviction of criminal possession of aweapon in the fourth degree, all terms to run concurrently.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentence on the conviction of attempted murder in the second degree from adeterminate term of 25 years of imprisonment to a determinate term of 20 years of imprisonment,to be followed by a period of five years of postrelease supervision; as so modified, the judgmentis affirmed.
The defendant contends that the prosecution failed to prove his guilt by legally sufficientevidence because he was not responsible by reason of mental disease or defect (see PenalLaw § 40.15). Viewing the evidence in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (see People vRomero, 7 NY3d 633 [2006]). The People offered expert testimony to rebut thetestimony of the defense expert that the defendant suffered from a mental disease or defect ofseverity sufficient to interfere with his ability to form the intent to commit the crime (see People v Ginsberg, 36 AD3d627, 628 [2007]; People v Rahman, 202 AD2d 696 [1994]).
The County Court properly precluded the defendant's counsel from raising the affirmativedefense of extreme emotional disturbance, as the defense failed to give timely notice of its intentto raise [*2]this defense at trial (see CPL 250.10 [1] [c];People v Almonor, 93 NY2d 571, 580 [1999]; People v Bien, 1 AD3d 442, 443 [2003]; People v Yates,290 AD2d 888 [2002]). Defense counsel nevertheless requested that the trial court charge thejury on the affirmative defense of extreme emotional disturbance, and the court properly deniedthat request (see Penal Law § 125.25 [1] [a]). Viewing the evidence in the lightmost favorable to the defendant (see People v Moye, 66 NY2d 887 [1985]), the courtcorrectly concluded that no reasonable view of the evidence supported such a charge (seePeople v Wilson, 309 AD2d 775 [2003]; People v Hon Do Lau, 255 AD2d 524[1998]).
The defendant's sentence for attempted murder in the second degree was excessive to theextent indicated herein (see People v Tomasello, 189 AD2d 903 [1993]; People vDiaz, 118 AD2d 651, 653 [1986]; People v Shakes, 90 AD2d 800, 801 [1982]).Covello, J.P., Santucci, Angiolillo and Dickerson, JJ., concur.