| People v Kwas |
| 2012 NY Slip Op 04778 [96 AD3d 877] |
| June 13, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v RemiKwas, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg,J.), rendered June 29, 2010, convicting him of murder in the second degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the jury's determination that he failed to prove by apreponderance of the evidence that he was acting "under the influence of extreme emotionaldisturbance for which there was a reasonable explanation or excuse" when he stabbed and killedhis sister's boyfriend was not against the weight of the evidence (Penal Law § 125.25 [1][a]; see Penal Law § 125.20 [2]; People v Roche, 98 NY2d 70, 75-76[2002]; People v Casassa, 49 NY2d 668, 675 [1980], cert denied 449 US 842[1980]; People v Azaz, 41 AD3d610 [2007], affd 10 NY3d 873 [2008]; People v Edwards, 29 AD3d 710 [2006]; People v George, 7 AD3d 810[2004]). "[W]here conflicting expert testimony is presented, the question of whether or not thedefendant suffered from a mental disease or defect at the time of the commission of the crime isprimarily for the trier of fact, who has the right to accept or reject the opinion of any expert" (People v Hernandez, 46 AD3d574, 576 [2007] [citation and internal quotation marks omitted]; see People v Ayala,221 AD2d 457 [1995]). Here, considering the evidence presented, including the conflictingexpert testimony, the jury could have reasonably concluded that the circumstances surroundingthe commission of the crime were not indicative of a loss of self-control or similar mentalinfirmity (see People v Roche, 98 NY2d at 75-76; People v Azaz, 41 AD3d at610; People v Palacios, 302 AD2d 540, 541 [2003]). Accordingly, there is no basis todisturb the jury's rejection of the defendant's affirmative defense of extreme emotionaldisturbance. Skelos, J.P., Balkin, Leventhal and Roman, JJ., concur.