                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: July 17, 2014                       104420
________________________________

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

AYERIUS W. BENSON,
                    Appellant.
________________________________


Calendar Date:   June 2, 2014

Before:   Stein, J.P., McCarthy, Garry, Lynch and Devine, JJ.

                               __________


     Eugene P. Grimmick, Troy, for appellant.

      Arthur F. Glass Jr., Acting District Attorney, Troy (Jarrod
Sanford of counsel), for respondent.

                               __________


Garry, J.

      Appeals (1) from a judgment of the County Court of
Rensselaer County (Ceresia, J.), rendered May 20, 2011, upon a
verdict convicting defendant of the crimes of murder in the
second degree and criminal possession of a weapon in the second
degree, and (2) from an order of said court, entered May 25,
2011, which amended the judgment of conviction to specify the
amount of restitution owed by defendant.

      In April 2010, the victim assaulted defendant without
provocation in the City of Troy, Rensselaer County. After the
victim left, defendant told witnesses he was going to get a gun
and kill the victim. He then ran to his nearby apartment,
retrieved a gun, and went to the victim's apartment, where he
told the victim's fiancée and her mother that he intended to kill
                               -2-                104420

the victim. When the victim arrived shortly thereafter,
defendant shot him numerous times and killed him.

      Defendant fled to New York City after the shooting, but
returned the next day. When approached by police officers, he
provided a false name and tried to flee. He was arrested and
charged with one count of murder in the second degree and two
counts of criminal possession of a weapon in the second degree.
At trial, defendant admitted to killing the victim, but
maintained that he was suffering from an extreme emotional
disturbance.1 The jury rejected this defense and found him
guilty of murder in the second degree and criminal possession of
a weapon in the second degree.2 Defendant was sentenced to an
aggregate prison term of 25 years to life and was ordered to pay
restitution. He appeals from the judgment of conviction and from
a subsequent order amending the judgment to specify the
restitution amount.3

      Defendant contends that the jury's rejection of his
affirmative defense of extreme emotional disturbance renders the
guilty verdict as to murder in the second degree against the
weight of the evidence. Where, as here, a different verdict
would not have been unreasonable, we must, like the trier of fact
below, "weigh conflicting testimony, review any rational
inferences that may be drawn from the evidence and evaluate the
strength of such conclusions" (People v Danielson, 9 NY3d 342,
348 [2007]; see People v Bleakley, 69 NY2d 490, 495 [1987];


     1
        Defendant also maintained that his actions were justified
(see Penal Law § 35.15); the jury's rejection of this defense is
not challenged upon appeal.
     2
        County Court, in its discretion, submitted only one of
the two counts of criminal possession of a weapon in the second
degree to the jury (see CPL 300.40 [3] [a]).
     3
        As defendant makes no arguments related to restitution on
this appeal, we deem that aspect of the appeal abandoned
(see People v Chase, 299 AD2d 597, 598 n [2002], lv denied 99
NY2d 613 [2003]).
                              -3-                104420

People v Hendrie, 24 AD3d 871, 875 [2005], lv denied 6 NY3d 776
[2006]). The affirmative defense of extreme emotional
disturbance – which a defendant must establish by a preponderance
of the evidence (see Penal Law §§ 25.00 [2]; 125.25 [1] [a]) –
permits "a defendant charged with murder in the second degree to
demonstrate the existence of mitigating factors which indicate
that, although he [or she] is not free from responsibility for
his [or her] crime, he [or she] ought to be punished less
severely by reducing the crime to manslaughter in the first
degree" (People v Hoke, 276 AD2d 903, 903 [2000], lv denied 96
NY2d 801 [2001]; see People v Gonzalez, 22 NY3d 539, 544-545
[2014]; People v Casassa, 49 NY2d 668, 675 [1980], cert
denied 449 US 842 [1980]). As charged to the jury, defendant was
required to establish that, at the time he committed the
homicide, he acted under the influence of an extreme emotional
disturbance for which there was a reasonable explanation or
excuse (see Penal Law § 125.25 [1]; People v Roche, 98 NY2d 70,
75-76 [2002]; People v Harris, 95 NY2d 316, 319 [2000]; People v
Hartsock, 189 AD2d 991, 992 [1993]).

      Defendant testified at trial that, at one point, he and the
victim had been close friends; however, their relationship
changed when the victim – a much larger man, weighing over 300
pounds more than defendant – allegedly began, among other things,
physically abusing him. According to defendant, he "snapped" on
the day of the shooting after the victim choked him, pushed him
part way through a storm door and threatened that "he was going
to kill [defendant]." Defendant stated that he felt "scared and
hurt, excited" and that his purpose in going to the victim's
apartment with a gun was to "protect [him]self." Defendant
acknowledged that he called a friend on the way and stated that
he was going to kill the victim, but denied that he intended to
follow through on this threat. After reaching the victim's
apartment and arguing with the victim's fiancée and her mother,
defendant began to walk away, at which point the victim arrived.
Defendant testified that he saw the victim walk towards him and
"flip[] out a knife." In response, defendant raised his gun, but
the victim continued to approach. Defendant fired one shot and,
realizing that the shot did not hinder the victim's movements,
fired several more shots at the victim "until the gun was empty."
                              -4-                104420

      Defendant's expert, James Thallman, testified that he
evaluated defendant and diagnosed him with an "adjustment
disorder with disturbance of emotions and conduct," characterized
by a heightened response to an identifiable stressor. Noting
that defendant's educational records described him as "mentally
retarded," Thallman further opined that defendant suffered from a
learning disorder characterized by limited cognitive functioning
and "neurological brain dysfunction" that limited his ability to
withstand stress. Thallman opined that these attributes dictated
defendant's actions and rendered him unable to control his
impulses after being faced with an "extreme stressor" in the form
of the victim's physical assault. In Thallman's professional
opinion, when defendant killed the victim, he was suffering from
an extreme emotional disturbance that rendered his behavior
irrational and "emotionally reactive" and prevented him from
"accurately view[ing] the situation." Thallman acknowledged that
defendant had been less than truthful during the evaluation, had
initially misrepresented some details, and might have fabricated
the claim that the victim had a knife.

      In rebuttal, the People proffered the expert testimony of
Lawrence Siegel, who disagreed with Thallman's diagnosis and,
instead, opined that defendant suffered from antisocial
personality disorder. According to Siegel, this disorder is
characterized by, among other factors, "impulsivity" and a
tendency to act aggressively, and is inconsistent with the
concept of extreme emotional disturbance. Siegel opined that
defendant's actions, viewed in their totality, were in line with
his prior documented behavior and were "more consistent" with
anger and a wish for revenge than with the claimed defense.
Siegel stated that, although defendant's statement after being
choked that he was "going to get [his] gun" was spontaneous,
there were many intervening events between that statement and the
shooting. He also disagreed that defendant had "snapped,"
stating that defendant "acted in a manner that he wanted to act"
and that his actions in evading arrest tended to disprove the
theory that he had snapped.


      Faced with this competing expert testimony as to whether
defendant was acting under an extreme emotional disturbance at
                              -5-                104420

the time he killed the victim, it was well within the jury's
province to credit the testimony offered by the People's expert
and reject the opinion of defendant's expert (see People v
Hendrie, 24 AD3d at 874-875; People v Costa, 256 AD2d 809 [1998],
lv denied 93 NY2d 872 [1999]; People v Gabriel, 241 AD2d 835, 836
[1997], lv denied 91 NY2d 892 [1998]). Upon our independent
review of the evidence (see People v Danielson, 9 NY3d at 348-
349), we find no reason to disturb the jury's determination in
this regard (see People v Steen, 107 AD3d 1608, 1608 [2013], lv
denied 22 NY3d 959 [2013]; People v Hoke, 276 AD2d at 904; People
v Hartsock, 189 AD2d at 992-993).

      Nor are we persuaded that County Court abused its
discretion in imposing the maximum allowable sentence (see Penal
Law §§ 70.00 [2] [a]; [3] [a] [i]; 70.02 [3] [b]). Despite
defendant's cognitive limitations, his tumultuous upbringing and
the fact that he was 18 years old at the time he committed the
crime – factors that County Court expressly acknowledged at
sentencing – the record establishes that he shot the victim
repeatedly at close range in a residential apartment complex in
front of, among others, the victim's fiancée and young stepchild.
We find no extraordinary circumstances warranting a reduction in
the interest of justice (see People v Williams, 28 AD3d 1005,
1011 [2006], lv denied 7 NY3d 819 [2006]; compare People v Wilt,
18 AD3d 971, 973 [2005], lv denied 5 NY3d 771 [2005]).

     Stein, J.P., McCarthy, Lynch and Devine, JJ., concur.
                        -6-                  104420

ORDERED that the judgment and order are affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
