People v. Rabenbauer — 177 A.D.2d 520

Majority

p. 520

The People of the State of New York, Respondent, v Philip Rabenbauer, Appellant.

Appeal by the defendant from a judgment of the County Court, Nassau County (Baker, J.), rendered October 19, 1987, convicting him of murder in the second degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620 ), we find that it was legally sufficient to establish the defendant’s guilt of intentional murder beyond a reasonable doubt. Even assuming that the evidence proffered by the defendant at trial sufficed to meet the threshold requirement that he acted under the influence of extreme emotional disturbance, the trial court could have reasonably found that he failed to satisfy his burden of establishing a reasonable explanation or excuse for the emotional disturbance (see, People v Casassa, 49 NY2d 668 , cert denied 449 US 842 ; People v Cooks, 157 AD2d 740 ; People v Kilpatrick, 154 AD2d 621 ).

Contrary to the contention of the defendant, the trial court’s verdict was consistent with the holding in People v

p. 521

Gallagher ( 69 NY2d 525 ). There is no indication that the trial court considered the counts of intentional and depraved indifference murder in the conjunctive rather than in the alternative. Further, the trial court expressly dismissed the count of depraved indifference murder, convicting the defendant of intentional murder. Thompson, J. P., Kunzeman, Lawrence and Miller, JJ., concur.

Cases cited

People v. Contes 60 NY2d 620 N.Y. 1983-09-01 p. 520
People v. Casassa 49 NY2d 668 N.Y. 1980-04-01 p. 520
People v. Cooks 157 AD2d 740 N.Y. App. Div. 1990-01-16 p. 520
People v. Kilpatrick 154 AD2d 621 N.Y. App. Div. 1989-10-23 p. 520
People v. Gallagher 69 NY2d 525 N.Y. 1987-05-07 p. 521