                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: April 16, 2015                      104705
________________________________

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

THOMAS A. CHANCEY,
                    Appellant.
________________________________


Calendar Date:    February 11, 2015

Before:    Peters, P.J., Garry, Rose and Lynch, JJ.

                               __________


     Eugene P. Grimmick, Troy, for appellant.

      Joel E. Abelove, District Attorney, Troy (Vincent J.
O'Neill of counsel), for respondent.

                               __________


Rose, J.

      Appeal from a judgment of the County Court of Rensselaer
County (McGrath, J.), rendered March 9, 2006, upon a verdict
convicting defendant of the crime of murder in the second degree.

      Defendant and the victim lived together in a long-term
relationship that began to deteriorate early in 2005, with mutual
allegations of infidelity and incidents of physical violence and
verbal abuse. These incidents culminated on August 12, 2005,
when defendant killed the victim by repeatedly striking her in
the head with a hammer. He was indicted on one count of murder
in the second degree and, after a jury trial at which he denied
that he intended to cause the victim's death and raised the
affirmative defense of extreme emotional disturbance, he was
convicted as charged. County Court sentenced him to 25 years to
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life in prison, and he now appeals.

      Defendant argues that the verdict is against the weight of
the evidence because he did not intend to cause the death of the
victim and he acted under the influence of an extreme emotional
disturbance. 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 from the testimony" (People v
Molina, 79 AD3d 1371, 1374 [2010], lv denied 16 NY3d 861 [2011]
[internal quotation marks and citations omitted]; accord People v
Ford, 90 AD3d 1299, 1301 [2011], lv denied 18 NY3d 994 [2012]).
Murder in the second degree requires proof that defendant
intentionally caused the victim's death (see Penal Law § 125.25
[1]). If the affirmative defense of extreme emotional
disturbance is established by showing that the homicidal act was
"an understandable human response deserving of mercy" (People v
Casassa, 49 NY2d 668, 680-681 [1980], cert denied 449 US 842
[1980]), the conviction will be reduced to manslaughter in the
first degree (see Penal Law § 125.25 [1] [a]; People v Harris, 95
NY2d 316, 318-319 [2000]; People v Benson, 119 AD3d 1145, 1146-
1147 [2014], lv denied 24 NY3d 1118 [2015]). The defense, which
must be established by a preponderance of the evidence (see Penal
Law §§ 25.00 [2]; 125 [1] [a]), has two components, a subjective
one requiring that the defendant "acted under the influence of
extreme emotional disturbance" and an objective one requiring "a
reasonable explanation" for the emotional disturbance "determined
from the viewpoint of a person in the defendant's situation under
the circumstances as [the] defendant believed them to be" (People
v Cass, 18 NY3d 553, 561 [2012] [internal quotation marks and
citation omitted]; see People v Harris, 95 NY2d at 319; People v
Pavone, 117 AD3d 1329, 1331-1332 [2014], lv granted 24 NY3d 963
[2014]).

      Defendant, who was 6 feet 2 inches tall and weighed 175
pounds, admitted that, in February 2005, he and the victim, who
was 5 feet 5 inches tall and weighed 140 pounds, engaged in a
heated, physical argument in his car while he was driving on the
Thruway. In the course of the argument, which concerned the
victim's infidelity to defendant, he struck her, kicked her out
of the car and left her stranded on the side of the highway.
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Following that incident, their arguments continued, with the
victim also repeatedly accusing defendant of being unfaithful, a
charge that he denied. Defendant eventually left their apartment
at the victim's request, but he slept in his car and called her
"8 million times" until she allowed him to return. Defendant
testified that the week leading up to the fatal encounter was
marked with continuing arguments, and he took back the engagement
ring that he had given to the victim and she again asked him to
move out of the apartment. They also continued to argue about,
among other things, his plan to take back a computer that he had
purchased for her. Defendant then spent a few nights away from
the apartment but, on the day prior to the killing, he and the
victim engaged in another heated argument that ended when the
victim locked herself in her vehicle and called 911 in an attempt
to get away from defendant, who broke one of the windows in the
car before fleeing the scene.

      On the fatal night, the victim picked defendant up at his
social club and they argued in her vehicle, with the victim
apparently slashing defendant with a sharp nail-care instrument.
The couple proceeded to the apartment to dress defendant's cuts,
where the argument escalated. After asking if defendant was
going to "give [her] an ass whipping," the victim picked up
defendant's hammer, to which he responded, "you want to hit me
with a hammer[?]" The victim swung the hammer at defendant but
missed, then dropped it on the floor and sat down at her computer
desk. As they continued to exchange angry recriminations,
defendant picked up the hammer and hit the victim with it,
testifying that he only remembers striking her once before he
"went blank." The medical examiner who conducted the victim's
autopsy testified that she had been struck three separate times
on the back of her head, causing severe skull fractures and brain
injury secondary to blunt force trauma. Trial evidence suggested
that defendant moved the victim's body after he killed her and
attempted to clean up her blood before leaving, but then left her
on the floor of the apartment. He was arrested the next day.

      "Defendant's intent may be inferred from both his actions
and the surrounding circumstances" (People v Johnson, 106 AD3d
1272, 1278 [2013] [citations omitted], lvs denied 21 NY3d 1041,
1043, 1045, 1046 [2013]; see People v Kenyon, 108 AD3d 933, 937
                              -4-                104705

[2013], lv denied 21 NY3d 1075 [2013]). In light of the number
and force of the blows inflicted while the victim was in a
defenseless position, and giving appropriate deference to the
jury's ability to view the witnesses and assess their
credibility, we find no basis to conclude that the verdict
finding that defendant acted with intent to cause the victim's
death is against the weight of the evidence (see People v Ford,
90 AD3d at 1301-1302; People v Molina, 79 AD3d at 1376). Nor do
we find the verdict rejecting the affirmative defense of extreme
emotional disturbance to be against the weight of the evidence
(see People v Benson, 119 AD3d at 1148). Rather than reflecting
a one-time, out-of-character loss of self-control resulting from
the stresses that defendant had been experiencing (see e.g.
People v Sepe, 111 AD3d 75, 87 [2013], appeal dismissed 22 NY3d
1126 [2014]), the evidence supports a conclusion that the murder
reflected the mutually abusive and physically violent nature of
defendant's relationship with the victim, her escalating
antipathy toward him and his ultimate reaction out of sheer
anger, jealousy and an attempt to salve his wounded pride.

      We are also unpersuaded by defendant's contention that he
was deprived of a fair trial by the prosecutor's comments during
summation. The prosecutor's statements that defendant was a
"domestic abuser" were fair comments in light of the evidence of
defendant's physically violent relationship with the victim and
as a counterargument to defendant's claim that the victim's death
was an isolated incident (see People v Simmons, 111 AD3d 975,
980-981 [2013], lv denied 22 NY3d 1203 [2014]; People v Rowe, 105
AD3d 1088, 1091 [2013], lv denied 21 NY3d 1019 [2013]; People v
Dickson, 58 AD3d 1016, 1018 [2009], lv denied 12 NY3d 852
[2009]). Although there was no evidence to support the
prosecutor's comment that defendant was a "[s]talker," and the
comment that defense counsel was "play[ing] games" was
inappropriate, defendant's objections were sustained, County
Court gave an immediate curative instruction to the jury
regarding the stalker comment and the fleeting nature of these
two comments do not reflect a "flagrant and pervasive pattern of
prosecutorial misconduct" (People v Dickson, 58 AD3d at 1018
[internal quotation marks and citation omitted]; see People v
Story, 81 AD3d 1168, 1169 [2011]; People v Cardenas, 79 AD3d
1258, 1262 [2010], lv denied 16 NY3d 857 [2011]).
                              -5-                  104705

      Defendant's claim that County Court failed to administer
the oath of truthfulness required by CPL 270.15 (1) (a) to the
potential jurors is not preserved for our review, as it must be
(see CPL 470.05 [2]; People v McDade, 64 AD3d 884, 888 [2009],
affd 14 NY3d 760 [2010]; People v Hampton, 64 AD3d 872, 877
[2009], lv denied 13 NY3d 796 [2009]; compare People v Hoffler,
53 AD3d 116, 120-121 [2008], lv denied 11 NY3d 832 [2008]). In
the absence of any objection drawing County Court's attention to
the alleged impropriety, no record was made to establish that the
appropriate oath was not administered to the potential jurors.
Moreover, contrary to defendant's contention, we have not held
that the failure to give the oath is a "mode of proceedings"
error that qualifies as a narrow exception to the preservation
requirement (People v Becoats, 17 NY3d 643, 650-651 [2011], cert
denied ___ US ___, 132 S Ct 1970 [2012]). Rather, if properly
preserved, the error is "fundamental," meaning that it requires
reversal even in the absence of any showing of prejudice suffered
by a defendant (People v Hoffler, 53 AD3d at 121, 122-123).
Although defendant claims that, given our holding in People v
Hoffler (supra) defense counsel's failure to raise any objection
constitutes ineffective assistance of counsel, we note that the
trial in this matter occurred prior to our decision in Hoffler.

      Finally, given the seriousness of the crime and defendant's
criminal history, we find no abuse of discretion or extraordinary
circumstances warranting a reduction of the sentence (see People
v Cade, 110 AD3d 1238, 1240 [2013], lv denied 22 NY3d 1155
[2014]; People v Kenyon, 108 AD3d at 942; People v Rollins, 51
AD3d 1279, 1282-1283 [2008], lvs denied 11 NY3d 922, 930 [2009]).

     Peters, P.J., Garry and Lynch, JJ., concur.
                        -6-                  104705

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
