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

406
KA 14-01535
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEFFERY MILLER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered November 29, 2012. The judgment
convicted defendant, upon a jury verdict, of murder in the second
degree, assault in the second degree, criminal possession of a weapon
in the second degree and criminal possession of a weapon in the third
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that all of the sentences
imposed shall run concurrently and as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of, inter alia, murder in the second degree
(Penal Law § 125.25 [1]) and assault in the second degree (§ 120.05
[6]). Supreme Court directed that the sentences for murder in the
second degree and assault in the second degree were to run
consecutively to each other, and concurrently to the sentences for the
other crimes of which defendant was convicted.

     Defendant contends that the court erred in refusing to instruct
the jury on the affirmative defense of extreme emotional disturbance
(EED defense) (see Penal Law § 125.25 [1] [a]). We reject that
contention. The EED defense “requires proof of a subjective element,
that defendant acted under an extreme emotional disturbance, and an
objective element, that there was a reasonable explanation or excuse
for the emotional disturbance” (People v Smith, 1 NY3d 610, 612; see
People v Gonzalez, 22 NY3d 539, 545; People v Moye, 66 NY2d 887, 890).
Even assuming, arguendo, that defendant established the subjective
element, we conclude that defendant failed to establish that there was
a reasonable explanation or excuse for the emotional disturbance. The
only explanation offered by defendant was that the victim, with whom
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                                                         KA 14-01535

defendant had once been romantically involved, did not wish to
reconcile or have any contact with defendant and had begun dating
another individual. In our view, defendant’s explanation was
“patently insufficient” (People v McKenzie, 19 NY3d 463, 468-469),
inasmuch as “anger and jealousy do not entitle a defendant to an
extreme emotional disturbance charge” (People v Ross, 34 AD3d 1124,
1126, lv denied 8 NY3d 884). We thus conclude that the EED defense
was properly excluded from consideration by the jury.

     As the People correctly concede, the court erred in directing
that the sentence for the count of assault in the second degree run
consecutively to the sentence imposed on the count of murder in the
second degree because the murder was the predicate felony for the
felony assault (see Penal Law § 70.25 [2]; People v Williams, 275 AD2d
967, 967). We therefore modify the judgment by directing that all
sentences shall run concurrently.




Entered:   March 24, 2017                      Frances E. Cafarell
                                               Clerk of the Court
