*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 1541

KA 07-01840

PRESENT: SCUDDER, P.J., SMITH, GREEN, PINE, AND GORSKI, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER DONYELL J. MCKENZIE, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.

DONYELL J. MCKENZIE, DEFENDANT-APPELLANT PRO SE.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Monroe County Court (Frank P.

Geraci, Jr., J.), rendered August 22, 2007. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.

It is hereby ORDERED that the judgment so appealed from is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]). Contrary to defendant’s contention, County Court properly refused to charge the affirmative defense of extreme emotional disturbance. Such a charge is not appropriate where, as here, the defendant’s conduct before, during and after the offense is “inconsistent with the loss of self-control associated with the defense” ( People v Roche , 98 NY2d 70, 77; see People v Smith , 1 NY3d 610, 612). Viewing the evidence in the light most favorable to defendant, we conclude that there was not the requisite “sufficient credible evidence . . . presented for the jury to find, by a preponderance of the evidence, that the elements of the affirmative defense [had] been established” ( People v White , 79 NY2d 900, 902-903), particularly in view of the conflicting reasons given by defendant for his actions.

Contrary to defendant’s further contention, the sentence is not unduly harsh or severe.

All concur except P INE , J., who is not participating. Entered: February 10, 2011 Patricia L. Morgan

Clerk of the Court