People v Anderson

People v Anderson 2012 NY Slip Op 08755 Decided on December 19, 2012 Appellate Division, Second 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 December 19, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
ANITA R. FLORIO
L. PRISCILLA HALL
SHERI S. ROMAN, JJ.
2009-03513
(Ind. No. 1669/07)

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

v

Robert Anderson, appellant.




Alexander M. Dudelson, Brooklyn, N.Y., for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael
J. Miller of counsel), for respondent.


DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.), rendered March 20, 2009, convicting him of murder in the second degree and criminal contempt in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the People established at the suppression hearing that the police had probable cause to arrest him, based on information provided by a witness (see People v Nealy, 32 AD3d 400, 401; People v Banks, 208 AD2d 759, 759-760).

The County Court correctly denied the defendant's request to charge manslaughter in the first degree and manslaughter in the second degree as lesser-included offenses of murder in the second degree. Viewing the evidence in the light most favorable to the defendant (see People v Martin, 59 NY2d 704), we find that there was no reasonable view of the evidence to support a finding that he intended to cause serious physical injury to the victim rather than kill her (see Penal Law § 125.20[1]; People v Butler, 84 NY2d 627, 633-634; People v Sostre, 70 AD3d 865), or that he acted recklessly in repeatedly shooting the victim (see Penal Law § 125.15[1]; People v Walston, 97 AD3d 609, 610; People v Spina, 275 AD2d 902, 904; People v Etienne, 250 AD2d 776).

Furthermore, the County Court properly refused to charge the affirmative defense of extreme emotional disturbance. The defendant's behavior " immediately before and after the killing was inconsistent with the loss of control associated with the affirmative defense'" (People v Trovato, 68 AD3d 1023, 1024, quoting People v Murden, 190 AD2d 822, 822; see People v Lynch, 92 AD3d 805, 806). The defendant failed to establish both the subjective and objective elements of the defense of extreme emotional disturbance (see People v Smith, 1 NY3d 610, 612; People v Roche, 98 NY2d 70, 75-77; People v Trovato, 68 AD3d at 1024).
SKELOS, J.P., FLORIO, HALL and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court