THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,V KEVIN FITZRANDOLPH, DEFENDANT-APPELLANT.THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OFCOUNSEL), FOR DEFENDANT-APPELLANT.JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OFCOUNSEL), FOR RESPONDENT.Appeal from a judgment of the Erie County Court (Michael F.Pietruszka, J.), rendered December 22, 2015. The judgment convicteddefendant, upon a nonjury verdict, of murder in the second degree.It is hereby ORDERED that the judgment so appealed from isunanimously affirmed.Memorandum: Defendant appeals from a judgment convicting himupon a nonjury verdict of murder in the second degree (Penal Law§ 125.25 [1]). Defendant contends that the People failed to establishhis guilt by legally sufficient evidence because his intoxicationrendered him incapable of forming the requisite criminal intent (see§ 15.25), and the verdict is against the weight of the evidence withrespect to the element of intent. We reject that contention.Although there was evidence at trial that defendant consumed alcohol,marihuana, and LSD prior to the commission of the crime, ” ‘[a]nintoxicated person can form the requisite criminal intent to commit acrime, and it is for the trier of fact to decide if the extent of theintoxication acted to negate the element of intent’ ” (People vMadore, 145 AD3d 1440, 1440 [4th Dept 2016],lv denied29 NY3d 1034[2017]). Here, defendant’s own expert psychiatrist testified thatdefendant intended to kill the victim, and the nature and extent ofthe stab wound was sufficient by itself to establish intent (seePeople v Tigner, 51 AD3d 1045, 1045 [2d Dept 2008],lv denied13 NY3d863 [2009],reconsideration denied14 NY3d 806 [2010]). Thus, viewingthe evidence in the light most favorable to the People, we concludethat it is legally sufficient to establish defendant’s criminal intentand, viewing the evidence in light of the elements of murder in thesecond degree, we conclude that the verdict is not against the weightof the evidence with respect to the element of intent (see generallyPeople v Danielson, 9 NY3d 342, 349 [2007];People v Bleakley, 69 NY2d490, 495 [1987]).We reject defendant’s further contentions that County Court erredin concluding that the insanity defense did not apply (seePenal Law§ 40.15), and that the verdict is against the weight of the evidencebecause the testimony of the People’s expert was “deeply flawed.” Thestatute provides that a defendant lacks criminal responsibility for acrime by reason of mental disease or defect when, “as a result ofmental disease or defect, he [or she] lacked substantial capacity toknow or appreciate either: . . . [t]he nature and consequences ofsuch conduct; or . . . [t]hat such conduct was wrong.” It isaxiomatic that, for the affirmative defense to apply, a defendant’sconduct must be the result of his or her mental disease or defect; thedefense is not applicable simply because a defendant is afflicted witha mental illness. Here, the People’s expert opined that defendant’sconduct was principally caused by his drug use rather than his mentalillness, while defendant presented the testimony of an expertpsychiatrist that defendant’s mental illness prevented him fromappreciating the wrongfulness of his conduct. Therefore, it waswithin the province of the court to conclude that the affirmativedefense of mental disease or defect did not apply in this instance(see People v Hadfield, 119 AD3d 1217, 1222-1223 [3d Dept 2014],lvdenied25 NY3d 989 [2015];People v Gillis, 281 AD2d 698, 699 [3d Dept2001],lv denied96 NY2d 918 [2001];People v Bergamini, 223 AD2d 548,549 [2d Dept 1996],lv denied88 NY2d 933 [1996]). “Where, as here,there was conflicting expert evidence concerning criminalresponsibility, the [court] was free to accept or reject in whole orin part the opinion of any expert . . . , at least in the absence of aserious flaw in the expert’s testimony” (People v Hershey, 85 AD3d1661, 1662 [4th Dept 2011],lv denied18 NY3d 883 [2012],cert denied566 US 1022 [2012] [internal quotation marks omitted];see People vStoffel, 17 AD3d 992, 993 [4th Dept 2005],lv denied5 NY3d 795[2005]). Inasmuch “[a]s we discern no ‘serious flaw’ in the opinionoffered by the People’s expert, we are unable to conclude that [thecourt], in crediting such testimony, failed to give the evidence theweight it should be accorded” (Hadfield, 119 AD3d at 1223 [internalquotation marks omitted];see Gillis, 281 AD2d at 699;People v Moss,179 AD2d 271, 272-273 [4th Dept 1992],lv dismissed80 NY2d 932[1992]).Finally, defendant’s sentence, which is only three years longerthan the minimum sentence required by law (seePenal Law § 70.00 [3][a] [i]), is not unduly harsh or severe.Entered: June 8, 2018 Mark W. BennettClerk of the Court
