                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 23, 2015                     106657
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ROBERT WILLIAMS,
                    Appellant.
________________________________


Calendar Date:   May 26, 2015

Before:   Lahtinen, J.P., McCarthy, Rose and Clark, JJ.

                             __________


     Mitch Kessler, Cohoes, for appellant.

      P. David Soares, District Attorney, Albany (Christopher D.
Horn of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the County Court of Albany County
(Ceresia, J.), rendered March 7, 2014, upon a verdict convicting
defendant of the crime of murder in the second degree.

      Defendant met the victim in February 2013 and considered
himself married to her according to the tenets of his faith after
a religious ceremony on March 12, 2013. Approximately one month
later, defendant grew suspicious that the victim was cheating on
him and trying to poison him, and, on May 25, 2013, the couple
decided to separate. On the morning of May 27, 2013, defendant
went to the victim's apartment in the City of Albany and stabbed
her to death.

     Defendant was charged with one count of murder in the
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second degree and raised the affirmative defense of extreme
emotional disturbance at the ensuing jury trial. Ultimately,
defendant was convicted as charged and sentenced to a prison term
of 25 years to life. Defendant now appeals, arguing that the
jury's verdict rejecting his defense of extreme emotional
disturbance is against the weight of the evidence.

      "Where, as here, a different verdict would not have been
unreasonable, we will weigh the relative probative force of
conflicting testimony and the relative strength of conflicting
inferences that may be drawn" therefrom to determine whether a
conviction is against the weight of the evidence (People v
Chancey, 127 AD3d 1409, 1410 [2015] [internal quotation marks and
citations omitted]). As relevant here, a person is guilty of
murder in the second degree when he or she intentionally causes
the victim's death (see Penal Law § 125.25 [1]). A defendant who
successfully asserts the defense of extreme emotional
disturbance, however, is guilty of manslaughter and not murder
(see Penal Law §§ 125.20 [2]; 125.25 [1] [a]; People v Roche, 98
NY2d 70, 75 [2002]).

      To establish an extreme emotional disturbance defense, a
defendant must show by a preponderance of the evidence "first,
that he or she acted under the influence of an extreme emotional
disturbance and, second, that there was a reasonable explanation
or excuse for that disturbance" (People v Roche, 98 NY2d at 75;
see Penal Law §§ 25.00 [2]; 125.25 [1] [a]; People v Chancey, 127
AD3d at 1410). The first element is established by proof that
the defendant was subjectively under an extreme emotional
disturbance, which usually involves a loss of self-control (see
People v Cass, 18 NY3d 553, 561 [2012]; People v Pavone, 117 AD3d
1329, 1331-1332 [2014], lv granted 24 NY3d 963 [2014]). The
second, objective, element is established by proof that there was
a reasonable explanation for the defendant's emotional
disturbance (see People v Roche, 98 NY2d at 76; People v Pavone,
117 AD3d at 1332). "[E]vidence demonstrating a defendant's high
degree of self-control or the planned and deliberate character of
the underlying attack, as well as any postcrime conduct
suggesting that the defendant was in full command of his or her
faculties and had consciousness of guilt, is entirely
inconsistent with an extreme emotional disturbance defense"
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(People v Pavone, 117 AD3d at 1332 [internal quotation marks,
brackets, ellipses and citations omitted]).

      Defendant testified that he believed that the victim was
cheating on him because he saw the victim use a dating website
and receive a phone call and text messages from other men.
Defendant further testified that he saw pictures of male
genitalia on the victim's phone, which he showed to his friend,
who confirmed the existence of such pictures at trial. Defendant
also suspected that the victim was trying to poison him because
he became sick after eating meals that she had prepared for him,
and he testified that his symptoms were so severe that, on one
occasion, he went to the hospital. On cross-examination,
however, defendant revealed that he has many health issues which,
one could infer, may have caused his symptoms.

      Approximately a week and a half before the crime, defendant
began drinking "to numb [his] pain." Individuals who saw
defendant in the days leading up to the crime testified that he
was upset, drank heavily, failed to take his prescribed
psychiatric medications and was contemplating suicide. There was
also evidence that defendant had used the victim's cell phone to
send nude photos of her and derogatory remarks about her to
various people two to three days before the crime. The People's
proof demonstrated that defendant planned to kill the victim
because he stated that he intended to kill her two days before
the crime and called his sister-in-law the evening before the
crime to tell her that there was a "situation" and gave her the
victim's name, address and date of birth "in case anything
happen[ed]."

      Defendant spent the evening before the crime drinking with
his neighbor. He had asked his neighbor not to let him leave if
he became intoxicated, but the neighbor passed out and defendant
went to the store to buy more alcohol. After staying up all
night drinking, defendant went to the victim's apartment in the
morning while he was still intoxicated. According to defendant,
he entered the apartment with his key, took off his shoes and
greeted the victim, and then they talked in her bedroom while she
rolled him a cigarette. However, things became heated when they
began discussing defendant's suspicions. Defendant testified
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that the victim initiated the violence when she reached under a
towel that she was sitting on and pulled out a knife. Defendant
claimed that he did not remember stabbing the victim, but when he
was asked whether he had to kill the victim, he responded that he
did not have a choice.

      Shortly after the crime, defendant went for a walk with his
neighbor, admitted to him that he had killed the victim and
stated that the victim "was so evil that the blood didn't even
come out." Defendant testified that he sold the victim's laptop
because there "was so much evil in it" and he used the money to
buy a bus ticket to New York City. He took the victim's state
identification card with him to New York City, which he hid in an
empty beer can.

      The victim's body was found in a closet in her apartment
and was covered in debris, which indicates that defendant may
have tried to hide her body. One knife was found wrapped in a
towel and a second knife was found inside a blanket. After the
crime, defendant told his sister-in-law that "he had time" and
that "they would have to find" the body. Defendant's concealment
of the victim's body and knives indicates that he exercised self-
control after stabbing the victim and evidences his consciousness
of guilt.

      We find that, in light of the foregoing evidence, a
rational jury could have determined that defendant was not
subjectively operating under the influence of an extreme
emotional disturbance if it disbelieved his assertions as self-
serving or determined that his mental state did not rise to the
level of an extreme emotional disturbance (see People v Moronta,
96 AD3d 418, 420 [2012], lv denied 20 NY3d 987 [2012]).
Additionally, even if we were to assume that the jury determined
that defendant subjectively suffered an extreme emotional
disturbance, the jury could have concluded that defendant's
extreme emotional disturbance was not reasonable "so as to
entitle him to a reduction of the crime charged from murder in
the second degree to manslaughter" (People v Casassa, 49 NY2d
668, 679 [1980], cert denied 449 US 842 [1980]). Giving
appropriate deference to the jury's ability to view the witnesses
and assess their credibility, we find that the verdict rejecting
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the affirmative defense of extreme emotional disturbance was not
against the weight of the evidence (see People v Chancey, 127
AD3d at 1411; People v Benson, 119 AD3d 1145, 1148 [2014], lv
denied 24 NY3d 1118 [2015]).

     Lahtinen, J.P., McCarthy and Rose, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
