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

761
KA 11-02602
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES H. STEEN, DEFENDANT-APPELLANT.


AMY L. HALLENBECK, JOHNSTOWN, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO, FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered June 23, 2011. The judgment convicted
defendant, upon a jury verdict, of murder in the first degree and
murder in the second degree (two counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of murder in the first degree (Penal Law § 125.27
[1] [a] [viii]) and two counts of murder in the second degree (§
125.25 [3] [felony murder]). Defendant failed to preserve for our
review his contention that County Court’s charge with respect to the
affirmative defense of extreme emotional disturbance was erroneous
(see CPL 470.05 [2]; People v Orta, 12 AD3d 1147, 1148, lv denied 4
NY3d 801), and we decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]). We reject defendant’s contention that the
alleged error in the charge constitutes a mode of proceedings error
that does not require preservation (see People v Thomas, 50 NY2d 467,
470-472).

     Contrary to defendant’s further contention, we conclude that the
jury’s rejection of the affirmative defense of extreme emotional
disturbance was not against the weight of the evidence (see People v
Reynart, 71 AD3d 1057, 1057-1058, lv denied 14 NY3d 891; People v
Butera, 23 AD3d 1066, 1067, lv denied 6 NY3d 774, reconsideration
denied 6 NY3d 832). “[T]he jury was entitled to consider the conduct
of defendant before and after the homicide[s] and to reject his
explanation for his conduct” (People v Domblewski, 238 AD2d 916, 916,
lv denied 90 NY2d 904). Additionally, although “an acquittal would
not have been unreasonable” on the charge of murder in the first
degree in light of defendant’s testimony that he did not intend to
shoot the second victim (People v Danielson, 9 NY3d 342, 348), we
                                 -2-                           761
                                                         KA 11-02602

conclude that the weight of the credible evidence nevertheless
supports the jury’s implicit finding that defendant intended to cause
serious physical injury or death to the second victim (see People v
Switzer, 15 AD3d 913, 914, lv denied 5 NY3d 770). Viewing the
evidence in light of the elements of murder in the first degree as
charged to the jury (see Danielson, 9 NY3d at 348), we thus conclude
that the verdict is not against the weight of the evidence with
respect to that crime (see generally People v Bleakley, 69 NY2d 490,
495).

     With respect to the conviction of two counts of felony murder, we
reject defendant’s contention that he “may not be convicted of felony
murder when burglary is the predicate felony and his . . . intent at
the time of the entry [was] to commit murder” (People v Couser, 12
AD3d 1040, 1041, lv denied 4 NY3d 762; see People v Miller, 32 NY2d
157, 161). Viewing the evidence in light of the elements of felony
murder as charged to the jury (see Danielson, 9 NY3d at 348), we
reject defendant’s further contention, premised on the above intent
argument, that the verdict is against the weight of the evidence (see
generally Bleakley, 69 NY2d at 495). Viewing the evidence of the two
counts of felony murder in the light most favorable to the People (see
People v Contes, 60 NY2d 620, 621), we similarly reject defendant’s
contention, premised on the same intent argument, that the conviction
is not supported by legally sufficient evidence (see generally
Bleakley, 69 NY2d at 495).

     Finally, we conclude that the sentence of life without parole for
the first degree murder conviction is not unduly harsh or severe.




Entered:   June 14, 2013                        Frances E. Cafarell
                                                Clerk of the Court
