People v Israel

People v Israel 2013 NY Slip Op 07260 Decided on November 7, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 7, 2013
Moskowitz, J.P., Renwick, DeGrasse, Gische, JJ.
10957 3443/07

[*1]The People of the State of New York, Respondent,

v

Daniel Israel, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York (Jan
Hoth of counsel), and Millbank, Tweed, Hadley & McCloy
LLP, New York (Elise Kent Bernanke of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Deborah L.
Morse of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered February 25, 2011, as amended March 16, 2011, convicting defendant, after a jury trial, of murder in the second degree, attempted murder in the first degree, attempted assault in the first degree, assault in the first and second degrees, reckless endangerment in the first degree and two counts of criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 35 years to life, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Defendant failed to prove by a preponderance of the evidence his affirmative defense of extreme emotional disturbance. There is no basis for disturbing the jury's weighing of conflicting expert testimony concerning defendant's mental state.

The court properly exercised its discretion in admitting evidence of an uncharged crime committed by defendant while he was incarcerated pending trial on this case. Evidence that he destroyed an inmate telephone because he "felt like it" was relevant to rebut the evidence he presented that he was a calm, nonviolent person, and that the charged crimes were the product of extreme emotional distress triggered by his posttraumatic stress disorder. Defendant's statements to the testifying Correction Officer provided sufficient context to establish the relevance of this evidence, which was more probative than prejudicial (see People v Cass, 18 NY3d 553 [2012]; People v Santarelli, 49 NY2d 241 [1980]). The court's limiting instructions were sufficient to minimize any prejudice.

Defendant did not preserve his similar challenge to evidence of another uncharged crime, [*2]or his challenges to the prosecutor's summation, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 7, 2013

CLERK