| People v Steen |
| 2013 NY Slip Op 04531 [107 AD3d 1608] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v James H. Steen, Appellant. |
—[*1] Gregory S. Oakes, District Attorney, Oswego, for respondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered June 23, 2011. The judgment convicted defendant, upon a jury verdict, ofmurder in the first degree and murder in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of murder in the first degree (Penal Law § 125.27 [1] [a] [viii]) and twocounts of murder in the second degree (§ 125.25 [3] [felony murder]). Defendantfailed to preserve for our review his contention that County Court's charge with respectto the affirmative defense of extreme emotional disturbance was erroneous (seeCPL 470.05 [2]; People vOrta, 12 AD3d 1147, 1148 [2004], lv denied 4 NY3d 801 [2005]), andwe decline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). We reject defendant's contention thatthe alleged error in the charge constitutes a mode of proceedings error that does notrequire preservation (see People v Thomas, 50 NY2d 467, 470-472 [1980]).
Contrary to defendant's further contention, we conclude that the jury's rejection ofthe affirmative defense of extreme emotional disturbance was not against the weight ofthe evidence (see People vReynart, 71 AD3d 1057, 1057-1058 [2010], lv denied 14 NY3d 891[2010]; People v Butera, 23AD3d 1066, 1067 [2005], lv denied 6 NY3d 774 [2006], lv denied 6NY3d 832 [2006]). "[T]he jury was entitled to consider the conduct of defendant beforeand after the homicide[s] and to reject his explanation for his conduct" (People vDomblewski, 238 AD2d 916, 916 [1997], lv denied 90 NY2d 904 [1997]).Additionally, although "an acquittal would not have been unreasonable" on the charge ofmurder in the first degree in light of defendant's testimony that he did not intend to shootthe second victim (People vDanielson, 9 NY3d 342, 348 [2007]), we conclude that the weight of thecredible evidence nevertheless supports the jury's implicit finding that defendantintended to cause serious physical injury or death to the second victim (see People v Switzer, 15 AD3d913, 914 [2005], lv denied 5 NY3d 770 [2005]). Viewing the evidence inlight of the elements of murder in the first degree as charged to the jury (seeDanielson, 9 NY3d at 348), we thus conclude that the verdict is not against theweight of the evidence with respect to that crime (see generally People vBleakley, 69 NY2d 490, 495 [1987]).[*2]
With respect to the conviction of two counts offelony murder, we reject defendant's contention that he "may not be convicted of felonymurder when burglary is the predicate felony and his . . . intent at the timeof the entry [was] to commit murder" (People v Couser, 12 AD3d 1040, 1041 [2004], lvdenied 4 NY3d 762 [2005]; see People v Miller, 32 NY2d 157, 161 [1973]).Viewing the evidence in light of the elements of felony murder as charged to the jury(see Danielson, 9 NY3d at 348), we reject defendant's further contention,premised on the above intent argument, that the verdict is against the weight of theevidence (see generally Bleakley, 69 NY2d at 495). Viewing the evidence of thetwo counts of felony murder in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), we similarly reject defendant's contention,premised on the same intent argument, that the conviction is not supported by legallysufficient evidence (see generally Bleakley, 69 NY2d at 495).
Finally, we conclude that the sentence of life without parole for the first degreemurder conviction is not unduly harsh or severe. Present—Centra, J.P., Peradotto,Sconiers, Valentino and Whalen, JJ.