Defendant, convicted of depraved mind murder and other charges after he attacked and strangled an acquaintance in her apartment, raises two principal issues on this appeal: (1) whether the affirmative defense of extreme emotional disturbance can be used to mitigate a charge of depraved mind murder (see, Penal Law § 125.25 [2]) and (2) whether evidence of a prior conviction that had been precluded by a pretrial ruling of the court was nonetheless properly used by the prosecution on cross-examination to impeach a defense witness. We conclude that the trial court was correct in refusing to charge the jury on the affirmative defense and in allowing cross-examination about the prior conviction and we therefore affirm.
