Opinion
2000-01499
Submitted January 21, 2003.
February 18, 2003.
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.
Robert C. Mitchell, Riverhead, N.Y. (John M. Dowden of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael Blakey of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED 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[a]; see People v. Roche, 98 N.Y.2d 70, 75; People v. Casassa, 49 N.Y.2d 668, 675, cert denied 449 U.S. 842). 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 A.D.2d 246, 247 quoting People v. Campbell, 197 A.D.2d 930, 932-933).
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 N.Y.2d 987), and, in any event, is without merit (see People v. Agosto, 73 N.Y.2d 963).
Under the circumstances, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit.
SANTUCCI, J.P., LUCIANO, SCHMIDT and ADAMS, JJ., concur.