| People v King |
| 2015 NY Slip Op 00567 [124 AD3d 1064] |
| January 22, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Gerry A. King, Appellant. |
Barrett D. Mack, Albany, for appellant, and appellant pro se.
James Sacket, District Attorney, Schoharie (Michael L. Breen of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Schoharie County (BartlettIII, J.), rendered December 22, 2010, upon a verdict convicting defendant of the crime ofmurder in the second degree.
On November 15, 2009, defendant drove to the home of his stepfather (hereinafterthe victim) and beat him to death. Defendant was apprehended two days later inConnecticut, at which time he confessed to assaulting the victim. He was charged in anindictment with murder in the second degree and, following a jury trial, was found guiltyas charged. County Court sentenced defendant to a prison term of 25 years to life, anddefendant now appeals.
We affirm. Defendant contends that the jury's verdict was not supported by legallysufficient evidence and, moreover, was against the weight of the evidence. A person isguilty of murder in the second degree when, "[w]ith intent to cause the death of anotherperson, he [or she] causes the death of such person or of a third person" (Penal Law§ 125.25 [1]). Defendant admittedly assaulted the victim, but contends thathe was intoxicated at the time of the murder and did not intend to cause the victim'sdeath. As an initial matter, defendant's generalized motion to dismiss failed to preservehis legal sufficiency claim for our review, but we will nevertheless assess whether allelements of the charged crime were proven in the context of our weight of the evidenceanalysis (see People vRodriguez, 121 AD3d 1435, 1436 [2014]; People v Gaudiosi, 110 AD3d 1347, 1348 [2013], lvdenied 22 NY3d 1040 [2013]). In conducting that review, we note that the requisiteintent to kill "may be inferred from a defendant's actions and [the] surroundingcircumstances" (People vFord, 90 AD3d 1299, 1300 [2011], lv denied 18 [*2]NY3d 994 [2012]; accord People v Kenyon, 108 AD3d 933, 937-938 [2013],lv denied 21 NY3d 1075 [2013]). Moreover, "[w]hether an individual's level ofintoxication negates the element of intent to commit a crime lies within the domain of thejury as the trier of fact" (People v Keller, 246 AD2d 828, 829 [1998], lvdenied 91 NY2d 1009 [1998]; see People v Beaty, 22 NY3d 918, 921 [2013]).
Defendant drank several beers prior to attacking the victim, but he prepared dinnerand drove to the victim's residence to commit the attack without incident, and severalindividuals who interacted with him did not perceive him to be very drunk (seePeople v Donohue, 123 AD2d 77, 81 [1987], lv denied 69 NY2d 879[1987]). Multiple witnesses also testified that defendant had a longstanding dislike for,and had repeatedly threatened to harm or kill, the victim. Indeed, defendant told one trialwitness on the day of the murder that he was going to "take care of" the victim and, whenhe returned from the victim's residence, stated that he had "finally [done] it" and killedthe victim. Defendant then, instead of summoning the authorities, engaged in elaborateefforts to conceal his involvement in the crime and fled the state. The jury could readilyinfer from this evidence that defendant was capable of forming the intent to cause thevictim's death and, in fact, had done so. Defendant testified to the contrary, asserting thathe was drunk when he went to the victim's residence and had a very spotty recollection ofwhat had occurred there. The jury plainly did not believe defendant's version of events,however, and, deferring to its credibility determinations, we find that the verdict was notagainst the weight of the evidence (see People v Kenyon, 108 AD3d at 938;People v Keller, 246 AD2d at 829; see also People v Donohue, 123AD2d at 81).
Defendant next asserts that County Court erred in refusing to charge the jury on theaffirmative defense of extreme emotional disturbance. That defense would havepermitted the jury to find defendant guilty of first degree manslaughter if he proved "by apreponderance of the evidence that the homicide was committed while [he] was 'underthe influence of extreme emotional disturbance for which there was a reasonableexplanation or excuse' " (People v Gonzalez, 22 NY3d 539, 544-545 [2014], quotingPenal Law § 125.25 [1] [a]; see People v Pavone, 117 AD3d 1329, 1331 [2014], lvgranted 24 NY3d 963 [2014]). County Court was obliged to grant defendant'srequest for the charge if, viewing the evidence in the light most favorable to defendant,"the jury could reasonably conclude . . . that, at the time of the homicide, thedefendant 'was affected by an extreme emotional disturbance, and that the disturbancewas supported by a reasonable explanation or excuse rooted in the situation as he [or she]perceived it' " (People v Gonzalez, 22 NY3d at 545, quoting People v McKenzie, 19 NY3d463, 466 [2012]). "That said, evidence demonstrating a defendant's high degree ofself-control or the planned and deliberate character of the underlying attack, as well asany postcrime conduct suggesting that the defendant was in full command of his or herfaculties and had consciousness of guilt, is entirely inconsistent with an extremeemotional disturbance defense" (People v Pavone, 117 AD3d at 1332 [internalquotation marks and citations omitted]).
Defendant had long been angry over his perceptions that the victim had dishonoredhis mother's memory and had behaved in a sexually inappropriate manner with variousfamily members, but anger, without more, "do[es] not entitle a defendant to an extremeemotional disturbance charge" (People v Ross, 34 AD3d 1124, 1126 [2006], lvdenied 8 NY3d 884 [2007]; see People v Wells, 101 AD3d 1250, 1254 [2012], lvdenied 20 NY3d 1066 [2013]). Indeed, defendant had often expressed his desire toharm or kill the victim and deliberately traveled to the victim's residence to confront himon the day of the murder, all of which suggests that the attack was a planned one. Thatthe attack was premeditated was also suggested by the testimony of the pathologist whoperformed an autopsy on the victim and found no evidence of "overkill," wherein aperpetrator inflicts injuries far beyond those required to kill. Defendant [*3]further acted rationally in the aftermath of the attack,repeatedly returning to the victim's residence to retrieve items that could be linked to himand to wipe away any fingerprints he left there, destroying or instructing others toconceal clothing that he had worn during the attack, and then fleeing the state. Indeed,far from being agitated after the attack, at least one individual who observed defendantduring that period described him as "calm." In short, even when viewed in the light mostfavorable to defendant, the evidence demonstrates that defendant behaved in a plannedand deliberate manner and was not "acting out of 'extreme mental trauma' or 'extremelyunusual and overwhelming stress' when he killed" the victim (People v Moronta, 96 AD3d418, 420 [2012], lv denied 20 NY3d 987 [2012], quoting People vIrizarry, 199 AD2d 180, 181 [1993], lv denied 83 NY2d 872 [1994]; seePeople v Ross, 34 AD3d at 1126). County Court, as a result, properly declined toinstruct the jury with regard to the extreme emotional disturbance defense.
Next, defendant asserts that he was deprived of the effective assistance of counsel invarious respects. He first argues that trial counsel should have called an expert witness toassist in establishing his intoxication. The failure to call such a witness does notconstitute ineffective assistance. Here, "expert testimony was not required to prove theintoxication defense, and defendant now offers little more than speculative assertions thatan expert's testimony would have supported it" (People v Muller, 57 AD3d 1113, 1114 [2008], lvdenied 12 NY3d 761 [2009]). Defendant's further claim that trial counsel shouldhave consulted with a medical expert with regard to his extreme emotional disturbancedefense fails for the same reasons (see People v Alston, 298 AD2d 702, 703-704[2002], lv denied 99 NY2d 554 [2002]; People v Ahl, 243 AD2d 985,986-987 [1997], lv denied 91 NY2d 868 [1997]). The remaining claims of erroradvanced by defendant in his pro se brief do not rise to the level of ineffective assistanceof counsel, and our review of the record as a whole confirms that he received meaningfulrepresentation (see People vFoote, 121 AD3d 1292, 1293-1294 [2014]).
Defendant's contention that County Court failed to adequately respond to a juryrequest for further instruction during deliberations is unpreserved for our review, and wediscern no reason to take corrective action in the interest of justice (see People v Green, 119 AD3d23, 30 [2014], lv denied 23 NY3d 1062 [2014]). Lastly, we have examinedand are unpersuaded by defendant's claim that the sentence imposed was harsh andexcessive.
McCarthy, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.