| People v Israel |
| 2013 NY Slip Op 07260 [111 AD3d 413] |
| November 7, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Daniel Israel, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Deborah L. Morse of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael J. Obus, J.), renderedFebruary 25, 2011, as amended March 16, 2011, convicting defendant, after a jury trial,of murder in the second degree, attempted murder in the first degree, attempted assault inthe first degree, assault in the first and second degrees, reckless endangerment in the firstdegree and two counts of criminal possession of a weapon in the second degree, andsentencing him to an aggregate term of 35 years to life, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). Defendant failed to prove by a preponderance of theevidence his affirmative defense of extreme emotional disturbance. There is no basis fordisturbing the jury's weighing of conflicting expert testimony concerning defendant'smental state.
The court properly exercised its discretion in admitting evidence of an unchargedcrime committed by defendant while he was incarcerated pending trial on this case.Evidence that he destroyed an inmate telephone because he "felt like it" was relevant torebut the evidence he presented that he was a calm, nonviolent person, and that thecharged crimes were the product of extreme emotional distress triggered by hisposttraumatic stress disorder. Defendant's statements to the testifying Correction Officerprovided sufficient context to establish the relevance of this evidence, which was moreprobative than prejudicial (seePeople v Cass, 18 NY3d 553 [2012]; People v Santarelli, 49 NY2d 241[1980]). The court's limiting instructions were sufficient to minimize any prejudice.
Defendant did not preserve his similar challenge to evidence of another unchargedcrime, [*2]or his challenges to the prosecutor'ssummation, and we decline to review them in the interest of justice. As an alternativeholding, we find no basis for reversal. Concur—Moskowitz, J.P., Renwick,DeGrasse and Gische, JJ.