An appellate court upheld the murder conviction of the man who killed an aspiring actress on a Lower East Side street during a 2005 robbery. Rudy Fleming, who is serving a life sentence for Nicole Dufresne's murder, had claimed he was mentally incompetent, but the judges found, “There was extensive evidence that (Fleming), even if psychiatrically ill, was deliberately exaggerating his illness and feigning the type of symptoms that might suggest [he was unfit for trial]."

In January 2005, Dufresne, her boyfriend Jeffrey Sparks and two friends had left Max Fish when they were confronted by a group who demanded their money. Sparks tried to intervene, but he was hit in the head by a gun, and, when the group wanted her purse, Dufresne said, "What are you going to do, shoot us?" Fleming, then 19, fired at Dufresne, who died in Sparks' arms. At the time, Police Commissioner Ray Kelly said, "Regardless of what the victim said or did not say, the person responsible for her death is the one who pulled the trigger," adding, "If you're in a situation when someone is pointing a weapon at you, I think it's best to comply with the directions of that individual." (One of the teens in the group testified that they were out looking for trouble because they were bored)

Fleming, who had claimed he shot Dufresne by accident, though a friend said he shot Dufresne because he was angry at her, tred to avoid trial by mentioning visions of giant marshmallow man. While serving his life sentence, he has been found to be psychotic; his lawyer says she still plans to appeal the appellate court's ruling.