People v. Palacios

Feb 18, 2003
Versions:302 A.D.2d 540
755 N.Y.S.2d 268

Appeal by the defendant from a judgment of the County Court, Suffolk County (Mullin, J.), rendered February 4, 2000, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

*541Ordered that the judgment is affirmed.

The jury determination that the defendant failed to prove by a preponderance of the evidence that he was acting “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” when he shot and killed the victim was based on legally sufficient evidence and was not against the weight of the evidence (Penal Law § 125.25 [1] [a]; see People v Roche, 98 NY2d 70, 75 [2002]; People v Casassa, 49 NY2d 668, 675 [1980], cert denied 449 US 842 [1980]). The circumstances surrounding the commission of the crime were not indicative of a loss of self-control or similar mental infirmity (see People v Roche, supra). Accordingly, the jury properly rejected the defendant’s affirmative defense.

As a rebuttal witness, the People presented a psychiatrist who testified about a statement by an individual who alleged that the defendant had previously pointed a gun at the victim, his girlfriend. The defendant contends that this statement was hearsay and that its admission into evidence warrants reversal of the judgment of conviction. However, “ ‘hearsay testimony given by [an] expert * * * for the limited purpose of informing the jury of the basis of the expert’s opinion and not for the truth of the matters related’ is admissible” (People v Wright, 266 AD2d 246, 247 [1999], quoting People v Campbell, 197 AD2d 930, 932-933 [1993]).

The defendant’s contention that the trial court’s interested witness charge was improper is unpreserved for appellate review (see CPL 470.05; People v Walls, 91 NY2d 987 [1998]), and, in any event, is without merit (see People v Agosto, 73 NY2d 963 [1989]).

Under the circumstances, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant’s remaining contentions are without merit. Santucci, J.P., Luciano, Schmidt and Adams, JJ., concur.