Opinion
February 16, 1993
Appeal from the Supreme Court, Westchester County (Colabella, J.).
Ordered that the judgment and the order are affirmed.
Viewing the evidence adduced at trial in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was sufficient to both support the conviction of attempted murder in the first degree beyond a reasonable doubt (see, e.g., People v Penabel, 150 A.D.2d 394), and to enable the trier of fact to reject the defendant's affirmative defense of extreme emotional disturbance (see, People v Moye, 66 N.Y.2d 887, 890; People v Walker, 64 N.Y.2d 741; People v Finney, 181 A.D.2d 789). While the defendant was clearly angry with his wife and son in the period of time preceding the shootout, he confronted the police officers in a calm and controlled manner, aimed his handgun at them and ordered them to drop their weapons. He thus did not exhibit the loss of self-control generally associated with the defense of extreme emotional disturbance (see, People v Feris, 144 A.D.2d 691, 692). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
We further find that the trial court's denial of the defendant's motion pursuant to CPL 440.10 constituted a proper exercise of discretion. It is clear that the defendant could have, with due diligence, discovered the purported "newly discovered evidence" — consisting of the additional testimony of a defense witness — prior to the trial. Moreover, the additional testimony merely contradicted several witnesses' trial testimony concerning the details of the shootout, and would not probably change the result if a new trial were granted (see, People v Yoli, 150 A.D.2d 741; People v Priori, 164 N.Y. 459, 472; People v Salemi, 309 N.Y. 208, 216, cert denied 350 U.S. 950). Thompson, J.P., Rosenblatt, Lawrence and Miller, JJ., concur.