| People v Naqvi |
| 2015 NY Slip Op 07518 [132 AD3d 779] |
| October 14, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tahir Naqvi, Appellant. |
Richard M. Langone, Garden City, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnnette Traill, Daniel Bresnahan, and Deborah E. Wassel of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Holder, J.), rendered September 24, 2009, convicting him of murder in the seconddegree, criminal possession of a weapon in the second degree, and criminal possession ofa weapon in the third degree, upon a jury verdict, and sentencing him to an indeterminateterm of imprisonment of 25 years to life on the conviction of murder in the seconddegree, and determinate terms of imprisonment of 15 years on the conviction of criminalpossession of a weapon in the second degree and seven years on the conviction ofcriminal possession of a weapon in the third degree, all sentences to run concurrentlywith each other.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the sentence imposed on the conviction of murder in the seconddegree from an indeterminate term of imprisonment of 25 years to life to anindeterminate term of imprisonment of 18 years to life; as so modified, the judgment isaffirmed.
Because the defendant failed to request that the trial court charge the jury onmanslaughter in the first degree as a lesser-included offense of murder in the seconddegree, based on the affirmative defense of extreme emotional disturbance (seePenal Law § 125.25 [1] [a]), the court's failure to so charge did notconstitute error (see CPL 300.50 [2]; People v Emiliano, 246 AD2d 553,554 [1998]; People v Goros, 224 AD2d 444 [1996]; People v Feris, 144AD2d 691 [1988]). On appeal, the defendant contends that his conviction of murder inthe second degree is against the weight of the evidence in light of the fact that he actedunder extreme emotional disturbance, and that we should reduce that conviction tomanslaughter in the second degree. However, as " '[t]he Appellate Division isconstrained to weigh the evidence in light of the elements of the crime as chargedwithout objection by defendant' " (People v Cooper, 88 NY2d 1056,1058 [1996], quoting People v Noble, 86 NY2d 814, 815 [1995]), the People arecorrect that this Court cannot consider that defense in conducting a weight of theevidence review (see People v Cooper, 88 NY2d at 1058).
The defendant further contends that he was deprived of the effective assistance ofcounsel based on his trial counsel's failure to raise an affirmative defense of extremeemotional disturbance and to request a charge of manslaughter in the first degree basedon that defense. While [*2]we cannot consider thatdefense in a weight of the evidence review, we consider that defense in addressing thedefendant's ineffective assistance claim. The record does not support an affirmativedefense of extreme emotional disturbance, as it is devoid of evidence that the defendantwas "actually influenced by an extreme emotional disturbance" when he shot the victim(People v Harris, 95 NY2d 316, 319 [2000]; People v Roche, 98 NY2d70, 76 [2002]; see People v Casassa, 49 NY2d 668, 678-679 [1980]; cf. People v McKenzie, 19NY3d 463 [2012]; People v Moye, 66 NY2d 887 [1985]; People v Sepe, 111 AD3d75 [2013]). While the facts alleged by the defendant, namely, the victim's three-yearaffair with the defendant's wife, and the knowledge that "everyone in his extended familyknew of his disgrace and humiliation," might serve "as the 'reasonable explanation' forthe presence of 'extreme emotional disturbance[,]' they are not equivalent to the loss ofself-control generally associated with that defense, and are not necessarily indicative ofthe 'mental infirmity[,'] not rising to the level of insanity" (People v Walker, 64NY2d 741, 743 [1984]) that must be shown. Accordingly, defense counsel's failure toraise the affirmative defense of extreme emotional disturbance and to request thecorresponding jury charge did not amount to ineffective assistance of counsel, since "anattorney is not deemed ineffective for failing to pursue an argument that had little or nochance of success" (People vEnnis, 11 NY3d 403, 415 [2008]; see People v Stultz, 2 NY3d 277, 287 [2004]; People v Rahman, 119 AD3d820, 821 [2014]). It is clear from the record as a whole that the defendant receivedmeaningful representation (seePeople v Carncross, 14 NY3d 319, 331 [2010]; People v Baldi, 54NY2d 137, 147 [1981]).
The defendant's challenge to certain remarks made by the prosecutor during voir direand summation is unpreserved for appellate review (see CPL 470.05 [2]). In anyevent, while the comments were improper, they did not deprive the defendant of a fairtrial (see People v Ward,106 AD3d 842, 843 [2013];People v Philbert, 60 AD3d 698 [2009]; People v Almonte, 23 AD3d 392, 394 [2005]).
The sentence imposed was excessive to the extent indicated herein. Mastro, J.P.,Balkin, Sgroi and Maltese, JJ., concur.