| People v Benson |
| 2014 NY Slip Op 05371 [119 AD3d 1145] |
| July 17, 2014 |
| Appellate Division, Third Department |
[*1] (July 17, 2014)
| 1 The People of the State of New York, Respondent, vAyerius W. Benson, Appellant. |
Eugene P. Grimmick, Troy, for appellant.
Arthur F. Glass Jr., Acting District Attorney, Troy (Jarrod Sanford of counsel), forrespondent.
Garry, J. Appeals (1) from a judgment of the County Court of Rensselaer County(Ceresia, J.), rendered May 20, 2011, upon a verdict convicting defendant of the crimesof murder in the second degree and criminal possession of a weapon in the seconddegree, and (2) from an order of said court, entered May 25, 2011, which amended thejudgment of conviction to specify the amount of restitution owed by defendant.
In April 2010, the victim assaulted defendant without provocation in the City ofTroy, Rensselaer County. After the victim left, defendant told witnesses he was going toget a gun and kill the victim. He then ran to his nearby apartment, retrieved a gun, andwent to the victim's apartment, where he told the victim's fiancée and her motherthat he intended to kill the victim. When the victim arrived shortly thereafter, defendantshot him numerous times and killed him.
Defendant fled to New York City after the shooting, but returned the next day. Whenapproached by police officers, he provided a false name and tried to flee. He was arrestedand charged with one count of murder in the second degree and two counts of criminalpossession of a weapon in the second degree. At trial, defendant admitted to killing thevictim, but maintained [*2]that he was suffering from anextreme emotional disturbance.[FN1] The jury rejected this defense andfound him guilty of murder in the second degree and criminal possession of a weapon inthe second degree.[FN2] Defendant was sentenced to anaggregate prison term of 25 years to life and was ordered to pay restitution. He appealsfrom the judgment of conviction and from a subsequent order amending the judgment tospecify the restitution amount.[FN3]
Defendant contends that the jury's rejection of his affirmative defense of extremeemotional disturbance renders the guilty verdict as to murder in the second degree againstthe weight of the evidence. Where, as here, a different verdict would not have beenunreasonable, we must, like the trier of fact below, "weigh conflicting testimony, reviewany rational inferences that may be drawn from the evidence and evaluate the strength ofsuch conclusions" (People vDanielson, 9 NY3d 342, 348 [2007]; see People v Bleakley, 69 NY2d490, 495 [1987]; People vHendrie, 24 AD3d 871, 875 [2005], lv denied 6 NY3d 776 [2006]). Theaffirmative defense of extreme emotional disturbance—which a defendant mustestablish by a preponderance of the evidence (see Penal Law§§ 25.00 [2]; 125.25 [1] [a])—permits "a defendant chargedwith murder in the second degree to demonstrate the existence of mitigating factorswhich indicate that, although he [or she] is not free from responsibility for his [or her]crime, he [or she] ought to be punished less severely by reducing the crime tomanslaughter in the first degree" (People v Hoke, 276 AD2d 903, 903 [2000],lv denied 96 NY2d 801 [2001]; see People v Gonzalez, 22 NY3d 539, 544-545 [2014];People v Casassa, 49 NY2d 668, 675 [1980], cert denied 449 US 842[1980]). As charged to the jury, defendant was required to establish that, at the time hecommitted the homicide, he acted under the influence of an extreme emotionaldisturbance for which there was a reasonable explanation or excuse (see PenalLaw § 125.25 [1]; People v Roche, 98 NY2d 70, 75-76 [2002];People v Harris, 95 NY2d 316, 319 [2000]; People v Hartsock, 189AD2d 991, 992 [1993]).
Defendant testified at trial that, at one point, he and the victim had been closefriends; however, their relationship changed when the victim—a much larger man,weighing over 300 pounds more than defendant—allegedly began, among otherthings, physically abusing him. According to defendant, he "snapped" on the day of theshooting after the victim choked him, pushed him part way through a storm door andthreatened that "he was going to kill [defendant]." Defendant stated that he felt "scaredand hurt, excited" and that his purpose in going to the victim's apartment with a gun wasto "protect [him]self." Defendant acknowledged that he called a friend on the way andstated that he was going to kill the victim, but denied that he intended to follow throughon this threat. After reaching the victim's apartment and arguing with the victim'sfiancée and her mother, defendant began to walk away, at which point the victimarrived. [*3]Defendant testified that he saw the victimwalk towards him and "flip[ ] out a knife." In response, defendant raised his gun, but thevictim continued to approach. Defendant fired one shot and, realizing that the shot didnot hinder the victim's movements, fired several more shots at the victim "until the gunwas empty."
Defendant's expert, James Thallman, testified that he evaluated defendant anddiagnosed him with an "adjustment disorder with disturbance of emotions and conduct,"characterized by a heightened response to an identifiable stressor. Noting that defendant'seducational records described him as "mentally retarded," Thallman further opined thatdefendant suffered from a learning disorder characterized by limited cognitivefunctioning and "neurological brain dysfunction" that limited his ability to withstandstress. Thallman opined that these attributes dictated defendant's actions and renderedhim unable to control his impulses after being faced with an "extreme stressor" in theform of the victim's physical assault. In Thallman's professional opinion, when defendantkilled the victim, he was suffering from an extreme emotional disturbance that renderedhis behavior irrational and "emotionally reactive" and prevented him from "accuratelyview[ing] the situation." Thallman acknowledged that defendant had been less thantruthful during the evaluation, had initially misrepresented some details, and might havefabricated the claim that the victim had a knife.
In rebuttal, the People proffered the expert testimony of Lawrence Siegel, whodisagreed with Thallman's diagnosis and, instead, opined that defendant suffered fromantisocial personality disorder. According to Siegel, this disorder is characterized by,among other factors, "impulsivity" and a tendency to act aggressively, and is inconsistentwith the concept of extreme emotional disturbance. Siegel opined that defendant'sactions, viewed in their totality, were in line with his prior documented behavior andwere "more consistent" with anger and a wish for revenge than with the claimed defense.Siegel stated that, although defendant's statement after being choked that he was "goingto get [his] gun" was spontaneous, there were many intervening events between thatstatement and the shooting. He also disagreed that defendant had "snapped," stating thatdefendant "acted in a manner that he wanted to act" and that his actions in evading arresttended to disprove the theory that he had snapped.
Faced with this competing expert testimony as to whether defendant was actingunder an extreme emotional disturbance at the time he killed the victim, it was wellwithin the jury's province to credit the testimony offered by the People's expert and rejectthe opinion of defendant's expert (see People v Hendrie, 24 AD3d at 874-875;People v Costa, 256 AD2d 809 [1998], lv denied 93 NY2d 872 [1999];People v Gabriel, 241 AD2d 835, 836 [1997], lv denied 91 NY2d 892[1998]). Upon our independent review of the evidence (see People v Danielson, 9NY3d at 348-349), we find no reason to disturb the jury's determination in this regard(see People v Steen, 107AD3d 1608, 1608 [2013], lv denied 22 NY3d 959 [2013]; People vHoke, 276 AD2d at 904; People v Hartsock, 189 AD2d at 992-993).
Nor are we persuaded that County Court abused its discretion in imposing themaximum allowable sentence (see Penal Law §§ 70.00 [2] [a];[3] [a] [i]; 70.02 [3] [b]). Despite defendant's cognitive limitations, his tumultuousupbringing and the fact that he was 18 years old at the time he committed thecrime—factors that County Court expressly acknowledged atsentencing—the record establishes that he shot the victim repeatedly at close rangein a residential apartment complex in front of, among others, the victim's fiancéeand young stepchild. We find no extraordinary circumstances warranting a reduction inthe interest of [*4]justice (see People v Williams, 28AD3d 1005, 1011 [2006], lv denied 7 NY3d 819 [2006]; compare People v Wilt, 18AD3d 971, 973 [2005], lv denied 5 NY3d 771 [2005]).
Stein, J.P., McCarthy, Lynch and Devine, JJ., concur. Ordered that the judgment andorder are affirmed.
Footnote 1:Defendant alsomaintained that his actions were justified (see Penal Law § 35.15);the jury's rejection of this defense is not challenged upon appeal.
Footnote 2:County Court, in itsdiscretion, submitted only one of the two counts of criminal possession of a weapon inthe second degree to the jury (see CPL 300.40 [3] [a]).
Footnote 3:As defendant makes noarguments related to restitution on this appeal, we deem that aspect of the appealabandoned (see People v Chase, 299 AD2d 597, 598 n [2002], lv denied99 NY2d 613 [2003]).