People v Devonne Rodriguez

People v Rodriguez 2004 NY Slip Op 02970 [6 AD3d 631] April 19, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 30, 2004

The People of the State of New York, Respondent,
v
Devonne Rodriguez, Appellant.

—[*1]

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered June 28, 2001, convicting him of murder in the second degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

We reject the defendant's contention that he established, by a preponderance of the evidence, the affirmative defense of extreme emotional disturbance to the charge of murder in the second degree (see Penal Law § 125.25 [1] [a]; People v Roche, 98 NY2d 70, 75 [2002]). The defendant presented no evidence that he suffered from a mental infirmity not rising to the level of insanity at the time of the homicide (see People v Smith, 1 NY3d 610 [ 2004]; People v Roche, supra at 75-76), and his conduct was "inconsistent with the loss of control associated with extreme emotional disturbance" (People v Yong Ho Han, 200 AD2d 780, 781 [1994]; see People v Roche, supra at 77; People v Barber, 2 AD3d 1290 [2003]; People v Murden, 190 AD2d 822 [1993]). [*2]

The defendant received the effective assistance of counsel (see People v Benevento, 91 NY2d 708 [1998]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). H. Miller, J.P., Goldstein, Adams and Cozier, JJ., concur.