| People v Pham |
| 2019 NY Slip Op 09182 [178 AD3d 1438] |
| December 20, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Vinh D. Pham, Also Known as Vinh Phan,Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (John L. DeMarco, J.), rendered May9, 2014. The judgment convicted defendant upon a nonjury verdict of murder in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial ofmurder in the second degree (Penal Law § 125.25 [1]). Defendant failed to object toCounty Court's questioning of the People's expert witness, and therefore his contention "that theTrial Judge's extensive participation in the questioning of [that] witness[ ] deprived him of a fairtrial . . . is not adequately preserved for this court's review" (People vCharleston, 56 NY2d 886, 887 [1982]; see CPL 470.05 [2]; People v West, 129 AD3d 1629,1630 [4th Dept 2015], lv denied 26 NY3d 972 [2015]). In any event, that contentionlacks merit. The court was "entitled to question [the] witness[ ] to clarify testimony and tofacilitate the progress of the trial and to elicit relevant and important facts" (People v Williams, 107 AD3d1516, 1517 [4th Dept 2013], lv denied 21 NY3d 1047 [2013] [internal quotationmarks omitted]; see People vPollard, 70 AD3d 1403, 1405 [4th Dept 2010], lv denied 14 NY3d 891[2010]; People v Brown, 256 AD2d 1109, 1109 [4th Dept 1998], lv denied 93NY2d 851 [1999]), and we conclude that it did not improperly "take[ ] on either the function orappearance of an advocate" (People v Arnold, 98 NY2d 63, 67 [2002]; see People vYut Wai Tom, 53 NY2d 44, 57-58 [1981]).
We reject defendant's contention that the verdict is against the weight of the evidence basedon the affirmative defense of extreme emotional disturbance (see Penal Law§ 125.25 [1] [a]; see generally People v Moye, 66 NY2d 887, 889-890[1985]) inasmuch as defendant failed to establish that affirmative defense by a preponderance ofthe evidence (see People v Smith, 1NY3d 610, 612 [2004]; People v Wylie, 303 AD2d 993, 994 [4th Dept 2003], lvdenied 100 NY2d 567 [2003]; see generally People v White, 79 NY2d 900, 902-903[1992]). Where, as here, there was "conflicting expert testimony on the issue of defendant'smental condition, the determination of the trier of fact to accept or reject the opinion of an expert,in whole or in part, is entitled to deference" (People v Amin, 294 AD2d 863, 863 [4thDept 2002], lv denied 98 NY2d 672 [2002]; see People v Coombs, 56 AD3d 1195, 1196 [4th Dept 2008], lvdenied 12 NY3d 782 [2009]; Peoplev Wall, 48 AD3d 1107, 1107-1108 [4th Dept 2008], lv denied 11 NY3d 742[2008]).
The sentence is not unduly harsh or severe. Present—Smith, J.P., Peradotto,DeJoseph, NeMoyer and Troutman, JJ.