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

232
KA 12-02273
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALI-MOHAMAD MOHAMUD, DEFENDANT-APPELLANT.


KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered November 15, 2012. 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
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of murder in the second degree (Penal Law § 125.25
[1]) in connection with the beating death of his 10-year-old stepson.
We note at the outset that, although the People contended at trial
that defendant failed to comply with CPL 250.10 (2) by providing
notice of his intent to request a charge on the affirmative defense of
extreme emotional disturbance (see § 125.25 [1] [a]), it is now
established that defendant was not required to do so because he based
his defense solely on the People’s evidence (see People v Gonzalez,
___ NY3d ___, ___ [Feb. 13, 2014]). We nevertheless reject
defendant’s contention that Supreme Court erred in refusing to
instruct the jury on the affirmative defense of extreme emotional
disturbance. Viewing the evidence in the light most favorable to
defendant, we conclude that the evidence is not “reasonably supportive
of the defense” (People v McKenzie, 19 NY3d 463, 466), which requires
that, “at the time of the homicide, [defendant] was affected by an
extreme emotional disturbance, and . . . that disturbance was
supported by a reasonable explanation or excuse rooted in the
situation as he perceived it” (id.). The evidence established that
defendant bound and gagged the child before striking him in excess of
60 times with a rolling pin. Although the Court of Appeals has
written that “the sheer number and redundancy of the . . . wounds
inflicted on [the victim] was indicative of defendant’s loss of
control” (id. at 467), the Court has “never held that a jury may infer
the presence of an extreme emotional disturbance based solely on proof
                                 -2-                           232
                                                         KA 12-02273

that the crime was especially violent or brutal. This is so because
violence and brutality are not necessarily indicative of a loss of
self-control or similar mental infirmity, nor is brutality generally
more deserving of mercy. Where [the Court has] referenced the nature
or severity of the wounds, the probative value of such evidence has
been linked to other compelling evidence of extreme emotional
disturbance” (People v Roche, 98 NY2d 70, 77-78; see e.g. McKenzie, 19
NY3d at 465-466; People v Moye, 66 NY2d 887, 890).

     Here, the evidence established that the victim had refused to do
his homework and had run from the house, in an apparent attempt to go
to his sister’s house. A neighbor assisted defendant in bringing the
child home, and she described defendant as “upset” and “tired,” but
“not angry.” We note that the neighbor also testified that defendant
assured her that he would not do anything to the child and the child
said “he always says that.” Medical and physical evidence supports
the conclusion that defendant put the child’s head in the toilet. The
evidence also establishes that, following the murder, defendant
disposed of his bloody clothes, washed the rolling pin he used to beat
the child and returned it to the kitchen drawer, cared for the two
younger children in the home, waited several hours for his wife to
return from work and lied to her about the child’s whereabouts, and
contacted his supervisor with instructions on how to dispose of his
personal property. Defendant told his supervisor that he “killed
[his] kid” but did not say why, did not express remorse, and was
described by his supervisor as calm and “melancholy.” In his
statement to the police, defendant said that the child lied to him
every day and that he “always [told] his [step]son to go live with his
father in Africa.” He related the events of the murder, but did not
indicate that he “snapped” or lost control (cf. Gonzalez, ___ NY3d at
___; McKenzie, 19 NY3d at 466; Moye, 66 NY2d at 890). We conclude
that “proof of the objective element [of the defense] is lacking”
(Roche, 98 NY2d at 78), inasmuch as “ ‘defendant’s behavior
immediately before and after the killing was inconsistent with the
loss of control associated with the affirmative defense’ ” (People v
McGrady, 45 AD3d 1395, 1395, lv denied 10 NY3d 813; cf. Gonzalez, ___
NY3d at ___).




Entered:   March 21, 2014                      Frances E. Cafarell
                                               Clerk of the Court
