PEOPLE v. REED

Ordered that the judgment is affirmed.

The defendant's contention that it was error to submit to the jury a count of depraved indifference murder ( see Penal Law § 125.25) as an alternative to intentional murder ( see Penal Law § 125.25) is foreclosed because the defendant was convicted of intentional murder and the jury, pursuant to the court's instructions, did not consider the depraved indifference murder count ( see People v Griffin, 28 AD3d 578, 579; cf. People v Falcon, 281 AD2d 368, 369). As a result, any error in submitting the depraved indifference murder count was harmless ( cf. People v Speight, 158 AD2d 729, 729-730).

The Supreme Court properly denied the defendant's request for a jury charge on the affirmative defense of extreme emotional disturbance. The defendant presented no evidence that he suffered from a mental infirmity rising to the level of insanity at the time of the homicide, and his conduct was inconsistent with the loss of control associated with extreme emotional disturbance ( see People v Smith, 1 NY3d 610, 612; People v Buckner, 23 AD3d 492; People v Zamora, 309 AD2d 957, 958; People v McDonald, 199 AD2d 420; People v Tulloch, 179 AD2d 794, 795).

The defendant's remaining contention is without merit.