           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
1541
KA 07-01840
PRESENT: SCUDDER, P.J., SMITH, GREEN, PINE, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DONYELL J. MCKENZIE, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DONYELL J. MCKENZIE, DEFENDANT-APPELLANT PRO SE.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered August 22, 2007. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of murder in the second degree (Penal Law § 125.25
[1]). Contrary to defendant’s contention, County Court properly
refused to charge the affirmative defense of extreme emotional
disturbance. Such a charge is not appropriate where, as here, the
defendant’s conduct before, during and after the offense is
“inconsistent with the loss of self-control associated with the
defense” (People v Roche, 98 NY2d 70, 77; see People v Smith, 1 NY3d
610, 612). Viewing the evidence in the light most favorable to
defendant, we conclude that there was not the requisite “sufficient
credible evidence . . . presented for the jury to find, by a
preponderance of the evidence, that the elements of the affirmative
defense [had] been established” (People v White, 79 NY2d 900,
902-903), particularly in view of the conflicting reasons given by
defendant for his actions.

     Contrary to defendant’s further contention, the sentence is not
unduly harsh or severe.

     All concur except PINE, J., who is not participating.

Entered:   February 10, 2011                       Patricia L. Morgan
                                                   Clerk of the Court
