| People v Lynch |
| 2012 NY Slip Op 01280 [92 AD3d 805] |
| February 14, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Darren Lynch, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (R. Doyle,J.), rendered December 13, 2009, convicting him of murder in the first degree, murder in thesecond degree (four counts), kidnapping in the first degree (two counts), and kidnapping in thesecond degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt isunpreserved for appellate review since he did not raise in the Supreme Court the specific groundthat he now raises on appeal (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Burgess, 75 AD3d 650[2010]). In any event, the contention is without merit. Viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we findthat it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied that theverdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, the trial court did not err in failing to give anintoxication charge to the jury (see Penal Law § 15.25). "A defendant mayestablish entitlement to such a charge 'if the record contains evidence of the recent use ofintoxicants of such nature or quantity to support the inference that their ingestion was sufficientto affect defendant's ability to form the necessary criminal intent' " (People v Sirico, 17 NY3d 744,745 [2011], quoting People v Rodriguez, 76 NY2d 918, 920 [1990]). Here, viewing theevidence in the light most favorable to the defendant, there is insufficient evidence to support aninference that the defendant was so intoxicated as to be unable to form the requisite criminalintent (see People v Rodriguez, 76 NY2d at 921; see also People v Sirico, 17NY3d at 746; People v Gaines, 83 NY2d 925, 926-927 [1994]).
Contrary to the defendant's contention, the Supreme Court properly refused to charge theaffirmative defense of extreme emotional disturbance. The defendant's behavior " 'immediatelybefore and after the killing was inconsistent with the loss of control associated with theaffirmative defense' " (People vTrovato, 68 AD3d 1023, 1024 [2009], quoting People v Murden, 190 AD2d822, 822 [1993]). [*2]Additionally, even if the defendant offeredsufficient evidence of the subjective element of that defense, there was no proof of "a reasonableexplanation or excuse" for the alleged emotional disturbance (People v Roche, 98 NY2d70, 76 [2002]). Accordingly, at the least, the defendant failed to establish the objective elementof the defense (id. at 76; see People v Murden, 190 AD2d 822 [1993]; seealso People v Trovato, 68 AD3d at 1024).
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in allowing challenged postmortem photographs of the victims to be admitted intoevidence. Such photographs are admissible "if they tend 'to prove or disprove a disputed ormaterial issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprovesome other evidence offered or to be offered' " (People v Wood, 79 NY2d 958, 960[1992], quoting People v Pobliner, 32 NY2d 356, 369 [1973], cert denied 416 US905 [1974]; see People v Sampson,67 AD3d 1031, 1032 [2009]). "They should be excluded 'only if [their] sole purpose is toarouse the emotions of the jury and to prejudice the defendant' " (People v Wood, 79NY2d at 960, quoting People v Pobliner, 32 NY2d at 370). The photographs in this casewere not offered for the sole purpose of arousing the emotions of the jury. Instead, thephotographs were properly admitted to illustrate and corroborate the testimony of the medicalexaminer who performed the autopsy (see People v Rivera, 74 AD3d 993 [2010]; People v Prowse, 60 AD3d 703[2009]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85-86[1982]).
The defendant's remaining contention does not require reversal (see People vCrimmins, 36 NY2d 230, 241-242 [1975]). Skelos, J.P., Balkin, Roman and Sgroi, JJ.,concur.