People v. Walker

opinion of the court

Murphy, P. J.

The principal issue presented upon this appeal is whether the trial court erroneously refused to submit manslaughter in the first degree to the jury upon the theory that defendant acted under the influence of “extreme emotional disturbance” (Penal Law, § 125.20, subd 2). The defendant was convicted after trial of murder in the second degree (Penal Law, § 125.25, subd 1) and criminal possession of a weapon in the second degree (Penal Law, § 265.03).

*221Defendant Robert Walker was charged with shooting William Edmunds in the Madrid Bar on November 24, 1980. The Madrid Bar was located on Seventh Avenue between 115th and 116th Streets; it was frequented by high-level drug dealers. According to Lavonia Edmunds, the decedent’s sister, defendant had received a consignment of marihuana from her brother, William. The defendant, however, never repaid decedent for this $4,500 consignment. The defendant claimed that he had been robbed of the marihuana. Lavonia had denied defendant’s request that she intercede with her brother on defendant’s behalf so that he would be given additional consignments.

On the evening of November 24,1980, William Edmunds encountered defendant in the Madrid Bar. According to witness Warren Hayes, an acquaintance of both individuals, William Edmunds asked defendant for the money owed to him. The defendant maintained that he had no money. Edmunds then asked how defendant could eat in the Madrid Bar if he did not have any money. The defendant continued the argument by stating that Edmunds was not going to obtain his money and that Edmunds could give his money to the defendant. Edmunds countered by stating that the only “dough” the defendant would obtain was in the bread on the table. At that point, Edmunds apparently placed his hands on defendant’s plate.

According to Hayes and Annibell Carithers, a waitress, defendant stood up and shot Edmunds three times. Stacey Garner, a drug seller and a drug addict, was standing outside the Madrid Bar. After the shooting, she saw the defendant exit the bar; he was holding a gun that was partially covered by a jacket. The defendant walked down Seventh Avenue toward 115th Street.

The trial court was not required to charge the affirmative defense based upon “extreme emotional disturbance” (Penal Law, § 125.25, subd 1, par [a]) unless the evidence sufficiently established the elements of that affirmative defense (People v Watts, 57 NY2d 299). At trial, the defense attorney argued that defendant had acted in anger because he had been embarrassed by the decedent. Upon this appeal, an alternative argument is made that defendant shot the decedent because the latter had “cut off” the *222former from the drug trade. Upon this record, many other motives might be advanced for defendant’s action. For example, immediately prior to the occurrence, he asked decedent for his money, It could be argued that defendant’s request was a veiled attempt to rob the decedent.

It is possible that defendant acted in anger or for revenge. It is also possible that he shot decedent very calmly and unemotionally. In that regard, it should be stressed that the defendant “walked” rather than “ran” from the bar after the incident. Anger, revenge and other emotions may serve as a “reasonable explanation” for the presence of an “extreme emotional disturbance”. (Penal Law, § 125.25, subd 1, par [a]; People v Shelton, 88 Misc 2d 136, 149, affd 78 AD2d 821.) However, it does not follow that defendant was influenced by an “extreme emotional disturbance” merely because he may have acted in anger or for revenge.

Moreover, there was no specific evidence submitted at trial that established that the defendant was influenced by an “extreme emotional disturbance”. The defendant himself did not testify. He did not call any psychiatrist or psychologist to prove his affirmative defense. None of the witnesses even described his physical, emotional and mental state at the time of the shooting.

In sum, the trial court properly denied the defense request to charge an affirmative defense under section 125.25 (subd 1, par [a]) of the Penal Law together with a reduced charge on manslaughter in the first degree under subdivision 2 of section 125.20 of the Penal Law. The evidence was not sufficient to warrant such a charge. The jury would have been impermissibly asked to find that defendant was influenced by an “extreme emotional disturbance” in the absence of any specific proof of that affirmative defense. The other trial evidence would have merely permitted the jury to speculate as to defendant’s motivation in shooting. Speculation of that sort would have been improper. In any event, even if it were assumed that defendant acted in anger or for revenge, it did not follow that he was in any way influenced by an “extreme emotional disturbance”. The defendant did not show that he lost “ ‘self-control’ ” (People v Shelton, 88 Misc 2d 136, 143, affd 78 AD2d 821, supra) or that his action was caused by a *223“mental infirmity” not rising to the level of insanity (People v Patterson, 39 NY2d 288, 302, affd 432 US 197).

The prosecution concedes that defendant was improperly sentenced on his conviction for criminal possession of a weapon in the second degree (Penal Law, § 265.03). The prosecution acknowledges that defendant was sentenced as a second felony offender on that crime but that a predicate felony statement was never filed (CPL 400.21). The matter must be remanded for resentencing on that conviction. We find no merit to the other points raised by the defendant.

Accordingly, the judgment of the Supreme Court, New York County (Levittan, J.), rendered on November 23, 1981, convicting defendant after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree and sentencing him to concurrent indeterminate prison terms of from 15 years to life on the murder count and from 5 to 10 years on the weapons count, should be modified, on the law, by reversing so much thereof as sentenced defendant on the weapons count, by remanding that matter for resentencing, and as modified, the judgment should otherwise be affirmed.

The order of the Supreme Court, New York County (Levittan, J.), dated September 9, 1982, which denied defendant’s motion to set aside the judgment of conviction because of the ineffective assistance of counsel, should be affirmed.