People v. Tabarez , 69 N.Y.2d 663 ( 1986 )

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The People did not argue in opposition to defendant’s request for a charge on extreme emotional disturbance that such a defense is inapplicable to attempted murder and, therefore, have not preserved the issue for review (People v Villani, 59 NY2d 781, 783-784).

The sufficiency of the evidence to present a jury question concerning whether defendant was acting under the influence of extreme emotional disturbance (Penal Law § 125.27 [2] [a]) and whether there was a reasonable explanation or excuse for such disturbance requires assessment of “the subjective, internal situation in which defendant found himself and the external circumstances as he perceived them at the time” (People v Casassa, 49 NY2d 668, 679). Under the unusual circumstances of this case and viewing the evidence in the light most favorable to defendant, as we must (People v Moye, 66 NY2d 887, 889), we conclude that it was error to refuse to charge the defense.

Defendant cross-appeals, by leave, from the Appellate Division’s failure to remit for resentence. Under the circumstances of this case, it was not an abuse of discretion as a matter of law for it not to do so (cf. People v Cohen, 50 NY2d 908).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed in a memorandum.