Summary
In Smith we observed that `[w]hen a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he has interjected into the case.' 451 U.S., at 465.
Summary of this case from People v. DiazOpinion
20.
Decided February 17, 2004.
Appeal, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered November 15, 2002. The Appellate Division affirmed a judgment of the Erie County Court (Sheila A. DiTullio, J.), which had convicted defendant, upon a jury verdict, of murder in the second degree (two counts), and robbery in the first degree.
Robert B. Hallborg, Jr., for appellant.
Raymond C. Herman, for respondent.
Chief Judge Kaye and Judges Smith, Ciparick, Rosenblatt, Graffeo, Read and Smith concur.
MEMORANDUM.
The order of the Appellate Division should be affirmed. Defendant was convicted of one count of intentional murder (Penal Law § 125.25), one count of felony murder (Penal Law § 125.25) and one count of robbery (Penal Law § 160.15). There was evidence adduced at trial that the 16-year-old defendant and a co-defendant went to the home of the 71-year-old victim with the specific intent to rob him, then choked and suffocated him to death and stole his automobile.
Defendant sought to establish that she was under an extreme emotional disturbance because of her sexual relationship with the deceased over a period of months and his sexual advances on the night of the killing. She argued that her own testimony and that of other lay persons, but no expert psychiatric evidence, was sufficient to establish her extreme emotional disturbance. The trial court sustained the People's objection to such testimony because of defendant's failure to provide pretrial notice pursuant to CPL 250.10(2). The Appellate Division affirmed without deciding whether notice should have been required, concluding that defendant would not have been entitled to a charge on extreme emotional disturbance in any event.
CPL 250.10(2) states, "Psychiatric evidence is not admissible upon a trial unless the defendant serves upon the people and files with the court a written notice of his intention to present psychiatric evidence." Once such notice is served, the People have the right to an examination of the defendant by a psychiatrist or a psychologist. While extreme emotional disturbance can be established without psychiatric testimony ( People v. Roche, 98 N.Y.2d 70, 76; People v. Moye, 66 N.Y.2d 887, 890), defendant "cannot establish an extreme emotional disturbance defense without evidence that he or she suffered from a mental infirmity not rising to the level of insanity at the time of the homicide, typically manifested by a loss of self-control" ( People v. Roche, 98 N.Y.2d at 75). The defense requires proof of a subjective element, that defendant acted under an extreme emotional disturbance, and an objective element, that there was a reasonable explanation or excuse for the emotional disturbance ( People v. Moye, 66 N.Y.2d at 890).
Here, there was an insufficient offer of proof by defendant in support of an extreme emotional disturbance defense. Defendant's proffered testimony did not establish that, at the time of the homicide, she was affected by her longstanding sexual relationship with the deceased to such a degree that a jury could reasonably conclude that she acted under the influence of an extreme emotional disturbance ( see People v. White, 79 N.Y.2d 900, 903). Thus, we need not decide whether pretrial notice of defendant's proffered testimony was required.
Defendant's challenge to the sufficiency of the evidence supporting her felony murder conviction is without merit.
Order affirmed, in a memorandum.