People v Acevedo
2008 NY Slip Op 09164 [56 AD3d 341]
November 20, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 7, 2009

The People of the State of New York, Respondent,
Juan Acevedo, Appellant.

[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Mugambi Jouet of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Nancy D. Killian of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Denis J. Boyle, J.), rendered July 5, 2007, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 22 years, unanimously affirmed.

The court properly declined to submit to the jury the affirmative defense of extreme emotional disturbance. There was insufficient evidence, viewed in a light most favorable to defendant, from which the jury could find, by a preponderance of the evidence, that the elements of that defense were satisfied (see People v Roche, 98 NY2d 70, 75 [2002]; People v White, 79 NY2d 900, 903 [1992]). On the contrary, the evidence failed to establish that defendant had any reasonable excuse or explanation for his actions, which evince the planned and deliberate character of the attack; nor did the evidence show that defendant was actually influenced by an emotional disturbance at the time of the stabbing (White, 79 NY2d at 903). Furthermore, defendant's postcrime conduct did not suggest extreme emotional distress, but instead suggested that he was in full command of his faculties and had consciousness of guilt (see e.g. People v Henriquez, 233 AD2d 268 [1996], lv denied 89 NY2d 942 [1997]).

We perceive no basis for reducing the sentence. Concur—Lippman, P.J., Mazzarelli, Buckley, McGuire and DeGrasse, JJ.