People v. Santanella
440 N.Y.S.2d 28
N.Y. App. Div.
1981
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Appeal by defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered July 9, 1979, convicting him of murder in the second degree (two counts), robbery in the first degree and burglary in the second degree, after a nonjury trial, and imposing sentence. Judgment affirmed. On this appeal, the defendant concedes his participation in the crimes of burglary and robbery, which underlaid his convictions of felony murder in connection with the deaths of Joseph and Angelina Tucci (see People v Santanella, 63 AD2d 744). He maintains, however, that he established the fourth element of the affirmative defense to felony murder, that he “[h]ad no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury” (Penal Law, § 125.25, subd 3, par [d]). The burden of proving an affirmative defense rests upon the defendant who relies upon it (Penal Law, § 25.00, subd 2; People v Bornholdt, 33 NY2d 75). We are satisfied that the evidence properly admitted against defendant proved his participation in the offenses, and that he has failed to prove by a preponderance of evidence that he lacked a reasonable ground to believe that codefendant Tamilio intended to engage in conduct likely, at the least, to cause serious physical injury to the Tuccis (see People v Kampshoff, 53 AD2d 325). Laser, J. P., Hangano, Gibbons and Hargett, JJ., concur.