| People v Mohamud |
| 2014 NY Slip Op 01898 [115 AD3d 1227] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vAli-Mohamad Mohamud, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered November 15, 2012. The judgment convicted defendant, upon a juryverdict, of murder in the second degree.
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 second degree (Penal Law § 125.25 [1]) in connectionwith the beating death of his 10-year-old stepson. We note at the outset that, although thePeople contended at trial that defendant failed to comply with CPL 250.10 (2) byproviding notice of his intent to request a charge on the affirmative defense of extremeemotional disturbance (see § 125.25 [1] [a]), it is now established thatdefendant was not required to do so because he based his defense solely on the People'sevidence (see People vGonzalez, 22 NY3d 539, 546 [2014]). We nevertheless reject defendant'scontention that Supreme Court erred in refusing to instruct the jury on the affirmativedefense of extreme emotional disturbance. Viewing the evidence in the light mostfavorable to defendant, we conclude that the evidence is not "reasonably supportive ofthe defense" (People vMcKenzie, 19 NY3d 463, 466 [2012]), which requires that, "at the time of thehomicide, [defendant] was affected by an extreme emotional disturbance, and. . . that disturbance was supported by a reasonable explanation or excuserooted in the situation as he perceived it" (id.). The evidence established thatdefendant bound and gagged the child before striking him in excess of 60 times with arolling pin. Although the Court of Appeals has written that "the sheer number andredundancy of the . . . wounds inflicted on [the victim] was indicative ofdefendant's loss of control" (id. at 467), the Court has "never held that a jury mayinfer the presence of an extreme emotional disturbance based solely on proof that thecrime was especially violent or brutal. This is so because violence and brutality are notnecessarily indicative of a loss of self-control or similar mental infirmity, nor is brutalitygenerally more deserving of mercy. Where [the Court has] referenced the nature orseverity of the wounds, the probative value of such evidence has been linked to othercompelling evidence of extreme emotional disturbance" (People v Roche, 98NY2d 70, 77-78 [2002]; see e.g. McKenzie, 19 NY3d at 465-466; People vMoye, 66 NY2d 887, 890 [1985]).
Here, the evidence established that the victim had refused to do his homework andhad [*2]run from the house, in an apparent attempt to goto his sister's house. A neighbor assisted defendant in bringing the child home, and shedescribed defendant as "upset" and "tired," but "not angry." We note that the neighboralso testified that defendant assured her that he would not do anything to the child andthe child said "he always says that." Medical and physical evidence supports theconclusion that defendant put the child's head in the toilet. The evidence also establishesthat, following the murder, defendant disposed of his bloody clothes, washed the rollingpin he used to beat the child and returned it to the kitchen drawer, cared for the twoyounger children in the home, waited several hours for his wife to return from work andlied to her about the child's whereabouts, and contacted his supervisor with instructionson how to dispose of his personal property. Defendant told his supervisor that he "killed[his] kid" but did not say why, did not express remorse, and was described by hissupervisor as calm and "melancholy." In his statement to the police, defendant said thatthe child lied to him every day and that he "always [told] his [step]son to go live with hisfather in Africa." He related the events of the murder, but did not indicate that he"snapped" or lost control (cf. Gonzalez, 22 NY3d at 546; McKenzie, 19NY3d at 466; Moye, 66 NY2d at 890). We conclude that "proof of the objectiveelement [of the defense] is lacking" (Roche, 98 NY2d at 78), inasmuch as "'defendant's behavior immediately before and after the killing was inconsistent with theloss of control associated with the affirmative defense' " (People v McGrady, 45 AD3d1395, 1395 [2007], lv denied 10 NY3d 813 [2008]; cf. Gonzalez, 22NY3d at 545). Present—Scudder, P.J., Smith, Carni, Lindley and Sconiers, JJ.