| People v Anderson |
| 2012 NY Slip Op 08755 [101 AD3d 1038] |
| December 19, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert Anderson, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.),rendered March 20, 2009, convicting him of murder in the second degree and criminal contemptin the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for reviewthe denial, after a hearing, of those branches of the defendant's omnibus motion which were tosuppress physical evidence and his statements to law enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the People established at the suppression hearing thatthe police had probable cause to arrest him, based on information provided by a witness (see People v Nealy, 32 AD3d 400,401 [2006]; People v Banks, 208 AD2d 759, 759-760 [1994]).
The County Court correctly denied the defendant's request to charge manslaughter in the firstdegree and manslaughter in the second degree as lesser-included offenses of murder in thesecond degree. Viewing the evidence in the light most favorable to the defendant (see Peoplev Martin, 59 NY2d 704 [1983]), we find that there was no reasonable view of the evidenceto support a finding that he intended to cause serious physical injury to the victim rather than killher (see Penal Law § 125.20 [1]; People v Butler, 84 NY2d 627, 633-634[1994]; People v Sostre, 70 AD3d865 [2010]), or that he acted recklessly in repeatedly shooting the victim (see PenalLaw § 125.15 [1]; People vWalston, 97 AD3d 609, 610 [2012]; People v Spina, 275 AD2d 902, 904[2000]; People v Etienne, 250 AD2d 776 [1998]).
Furthermore, the County Court properly refused to charge the affirmative defense of extremeemotional disturbance. The defendant's behavior " 'immediately before and after the killing wasinconsistent with the loss of control associated with the affirmative defense' " (People v Trovato, 68 AD3d 1023,1024 [2009], quoting People v Murden, 190 AD2d 822, 822 [1993]; see People v Lynch, 92 AD3d 805,806 [2012]). The defendant failed to establish both the subjective and objective elements of thedefense of extreme emotional disturbance (see People v Smith, 1 NY3d 610, 612 [2004]; People vRoche, 98 NY2d 70, 75-77 [2002]; People v Trovato, 68 AD3d at 1024). Skelos,J.P., Florio, Hall and Roman, JJ., concur.