Opinion
April 10, 1995
Appeal from the County Court, Suffolk County (Namm, J.).
Ordered that the judgment is affirmed.
We reject the defendant's contention that he was excluded from a material stage of the trial when counsel exercised their challenges to the jury outside of his presence. The record indicates that the defendant was present during the voir dire and that, while counsel initially informed the court of their challenges in the absence of the defendant, the challenges were in fact eventually given effect in the defendant's presence in open court (see, People v Velasco, 77 N.Y.2d 469, 473; People v Jackson, 202 A.D.2d 518; People v Cohen, 201 A.D.2d 494; People v Yonamine, 192 A.D.2d 687).
Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of murder in the second degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
We find no basis to disturb the jury's rejection of the defendant's affirmative defense of extreme emotional disturbance. Although the defendant, through the testimony of a psychologist, attempted to establish that he acted under the influence of extreme emotional disturbance at the time that he killed his girlfriend, the People presented evidence through the testimony of their own psychiatrists corroborated by the testimony of several witnesses, including the defendant, that the defendant was an angry manipulative individual who had previously threatened to kill the victim. Thus the jury could reasonably have rejected the affirmative defense (see, People v Fisher, 177 A.D.2d 704). Moreover, the jury was entitled to reject the defendant's explanation for his emotional state as so unreasonable that it did not warrant mitigation of the charges (see, People v Casassa, 49 N.Y.2d 668, 681, cert denied 449 U.S. 842; People v Checo, 194 A.D.2d 410; People v Hartsock, 189 A.D.2d 991; People v Fisher, supra).
The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit. Bracken, J.P., Balletta, Copertino and Hart, JJ., concur.