People v. Stenson

—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25 [3]) and other crimes, defendant contends that County Court erred in denying his request to of 965 fer expert testimony concerning the effect of cocaine on the victim. The record contains no evidence that the victim was “exhibiting aberrant behavior sufficient to cause fear and to warrant a forceful response” (People v Chevalier, 220 AD2d 114, 117, affd 89 NY2d 1050). Indeed, defendant testified that, once he pointed the gun at the victim, the victim raised his voice and waved his hands, attempting to grab the gun. That behavior was not “aberrant,” given the circumstances (People v Chevalier, supra, at 117; see also, People v Guerrero-Rivera, 236 AD2d 837). In any event, the alleged error is harmless. The evidence of defendant’s guilt is overwhelming and there is no significant probability that defendant would have been acquitted but for the alleged error (see, People v Crimmins, 36 NY2d 230, 242). (Appeal from Judgment of Monroe County Court, Marks, J. — Murder, 2nd Degree.) Present — Pigott, Jr., P. J., Pine, Hurlbutt, Kehoe and Lawton, JJ.