People v. Martinez

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Clabby, J.), rendered January 17, 1984, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The evidence adduced at the trial, at which both the defendant and the codefendant testified, when viewed in the light most favorable to the defendant, was insufficient to establish *673by a preponderance of the evidence that the defendant acted under the influence of an extreme emotional disturbance or that there was a reasonable explanation or excuse for him to have been under the influence of such a disturbance. Thus the court did not err in denying the defendant’s request to charge the jury regarding the affirmative defense of extreme emotional disturbance (see, People v Moye, 66 NY2d 887).

The court’s failure to charge that the codefendant was an accomplice as a matter of law does not require reversal, as the case against the defendant did not rest substantially on the codefendant’s testimony and the proof against the defendant was overwhelming (see, People v Strawder, 124 AD2d 758; People v Ramos, 68 AD2d 748).

The interests of justice do not warrant the substitution of our discretion for that of the sentencing court (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Lawrence, J. P., Kunzeman, Kooper and Harwood, JJ., concur.