People v. Caban

—Judgment, Supreme Court, New York County (Rose Rubin, J.), rendered March 24, 1992, which convicted defendant, after a nonjury trial, of murder in the second degree, and sentenced him to a term of 20 years to life, unanimously affirmed.

Contrary to defendant’s contention, the verdict was not against the weight of the evidence. Defendant failed to prove, *288by a preponderance of the evidence, that he acted under the influence of extreme emotional disturbance. (Penal Law § 125.25 [1] [a]; see, People v White, 79 NY2d 900, 902-903.) In this regard, defendant’s pretrial confessions contradict his trial testimony that he lost control during the struggle with the victim and blacked-out after stabbing her twice in self-defense. To the contrary, his confessions demonstrate that defendant was in full command of his faculties when he brutally murdered the victim by stabbing her approximately thirty-one times and gagging her with a cloth. In light of defendant’s confessions, the court, as trier of fact, (see, People v Casassa, 49 NY2d 668, 679-680, cert denied 449 US 842), was entitled to reject the testimony of defendant’s expert psychiatrist.

In light of the heinous nature of the crime, the sentence imposed, five years below the maximum sentence permitted, was neither harsh nor excessive. Concur—Ellerin, J. P., Rubin, Ross, Nardelli and Williams, JJ.