The People, Respondent,v.Anthony V. Pavone, Appellant.BriefN.Y.November 18, 2015STATE OF NEW YORK To be argued by Paul J. Connolly Time requested: 15 minutes COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK~ Plaintiff-Respondent vs ANTHONYV. PAVONE, Defendant-Appellant APPELLANT'S BRIEF No. APL-2014-00251 PAUL J. CONNOLLY Attorney for Appellant Office and P.O. Address 2 Wedge Road Delmar, NY 12054 PH: (518) 439-7633 FAX: (518) 691-1023 DATE COMPLETED: November 24,2014 APPELLANT'S BRIEF TABLE OF CONTENTS PAGE Table of'Authorities . Preliminary Statement 1 Questions Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Preservation 2 Statement of Facts....................................................................... 3 Background 3 Indictment 4 Pretrial Proceedings 4 Trial.............................................................................. . 4 A. Prosecution Case 4 The homicides 4 Appellant's apprehension............................... 8 Phone recordings 10 B. Defense Case....................................................... 11 Appellant 11 Other defense lay witnesses 16 Defense psychiatrist .. 17 C. Prosecution rebuttal............................................... 21 Prosecution psychologist. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 D. Defense arguments 26 E. Prosecution Summation 26 F. Verdict............................................................... 27 Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Appeal 27 Argument Point I 29 THE PROSECUTOR'S ELICITATION OF EVIDENCE OF APPELLANT'S POST-MIRANDA EXERCISE OF HIS CONSTITUTIONAL RIGHT TO REMAIN SILENT, HIS COMMENTS ON THAT SILENCE IN HIS SUMMATION, AND THE ABSENCE OF ANY LIMITING INSTRUCTION, DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHTS TO REMAIN SILENT, TO A FAIR TRIAL, AND TO DUE PROCESS OF LAW, AND REQUIRE REVERSAL A. Pertinent Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 29 B. Analysis............................................. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 30 1. The constitutional violation................................................ 30 2. Remedy... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 34 Point II 0000000000.0000000.0.0000 •• 000.0.000 0 0 00.00000.00 •••••• 0.0.0........ 47 EVEN ABSENT DEFENSE OBJECTION, THE PROSECUTOR'S ELICITATION Of' EVIDENCE OF APPELLANT'S PRETRIAL EXERCISE OF HIS RIGHT TO REMAIN SILENT, AND HIS COMMENTS ON THAT EVIDENCE IN HIS SUMMATION, PRESENT ISSUES OF LAW THAT REQUIRE REVERSAL Point III 0 •••••• 0 0 •• 0 •••• 0 •• 0 •••••• 0 .0 0 • 0 0 ••••••••••• 0 ••• 0 0 0 •••••••••••• 0 • • • • • • • • • •••• 50 APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STATE CONSTITUTION AND FEDERAL CONSTITUTION A. Counsel's failure to object to the prosecutor's elicitation of evidence of Appellant's pretrial silence, his failure to request limiting instructions as to that evidence., and his failure to object to the prosecutor's summation comments on that evidence .. 0 • 0 •••••• 0 ••••••••• 0 0 0 0 • 0 ••• 0 ••••• 0 ••••••••••••• 0 •••••••• 0 ••••••• 0 •••• 0 • • • • • 51 B. Defense counsel's failure to provide the defense psychiatric expert with the evidence he needed to offer a well-founded opinion as to the EED defense.... 53 History 0.0 •• 0.0.0.0.0.000 •••••• 000 ••• 00000 •• 0.0 ••••••• 0.0 ••• 0 ••• 00000000 •• 000 •• 0.0 53 Analysis 0.0000 •• 00 •••• 00 •••••• 0.00.00 •• 0 •• 000 •••••••••••••••••••••• 0 ••• 0.0........ 58 C. The Appellate Division's analysis of the ineffective assistance issue 0 64 Do Cumulative effect of errors 0 0 ••••• • 65 Conclusion .... 00 00 •• 0. 0 ••••• 00 •••• 0 0 • 00 •••• 0 •• 0 • 0 •••• 0 •••• 0 ••• 0 •••••••• 00 •••••••••• 0 ••••• 00 66 TABLE OF AUTHORITIES Cases 30 31,32,33 34,46 31 52 52 52 52 35,36 50 50 53 50 31 35 53 35 45 51,52 35 47,48 . PAGE 32 31,32,33 38 50 53 53,66 47,48 50,64 31 48 24, 34, 35, 36, 38, 40-44, 58 48 64,66 66 People v Cavallerio, 71 AD2d 338 (1st Dept. 1979) .. People v Chapman, 54 AD3d 507 (3fd Dept. 2008) . People v Clarke, 66 AD3d 694 (2nd Dept. 2009) . People Conyers, 49 NY2d 174 (1980), vacated on other grounds, 449 US 809 (1980), adhered to on remand 52 NY2d 454 (1981) . People v Conyers, 52 NY2d 454 (1987) .. People v Crimmins, 36 NY2d 230 (1975) . People v DeGeorge, 73 NY2d 614 (1989) . People v Fisher, 18 NY3d 964 (2012) . People v Fleegle, 295 AD2d 760 (3fd Dept. 2002) . People v Forbes, 203 AD2d 609 (3fd Dept. 1994) . People v Greene, 306 AD2d 639 (3d Dept. 2003) . People v Harris, 95 NY2d 316 (2000) . People v Harris, 99 NY2d 202 (2003) . People v Henry, 95 NY2d 563 (2000) . People v Hobot, 84 NY2d 1021 (1995) . People v Hull, 71 AD3d 1336 (3fd Dept. 2010) .. People v Isaacson, 44 NY2d 511 (1978), rearg denied, 45 NY2d 776 . People v Liebman, 179 AD2d 245 (1st Dept. 1992), app dismissed 81 NY2d 834 People v Lindo, 167 AD2d 558 (2nd Dept. 1990) .. People v Maher, 89 NY2d 456 (1997) .. People v Mariano, 101 AD3d 1367 (3fd Dept. 2012) . People v McArtllur, 101 AD3d 752 (2d Dept. 2012) .. People v McKenzie, 19 NY3d 463 (2012) . People v McLucas, 15 NY2d 167 (1965) .. Brecht v Abrahamson, 507 US 619 (1993) . Doyle v Ohio, 426 U.S. 610 (1976) . Hambsch v NY City Trans. Auth., 63 NY2d 723 (1984) . People v Abar, 99 NY2d 406 (2003) . People v Alford, 33 AD3d 1014 (2nd Dept. 2006) . People v Arnold, 85 AD3d 1330 (3rd Dept. 2011) .. People v Autry 75 NY2d 836 (1990) . People v Baldi, 54 NY2d 137 (1981) . People v Basara, 75 NY2d 993 (1990) . People v Bowen, 65 AD2d 364 (1st Dept. 1978) People v Casassa, 49 NY2d 668 (1980), cert denied 449 U.S. 842 . People v Mehmood~ 112 AD3d 850 (2nd Dept. 2013) . People v Miller~ 63 AD3d 1186 (3 fd Dept. 2009) . People v Oathout~ 21 NY2d 127 (2013) . People v Padgett~ 60 NY2d 142 . People v Patterson, 39 NY2d 288 (1976)~ affd, 532 U.S. 197 .. People v Pressley~ 93 AD2d 665 (1st Dept. 1983) .. People v Roche~ 98 NY2d 70 (2002) . People v Rothschild~ 35 NY2d 355 (1974) . People v Rutigliano, 261 NY 103 (1933) .. People v Spinelli~ 214 AD2d 135 (2nd Dept. 1995) . People v Stultz, 2 NY3d 277 (2004) . People v Tucker~ 87 AD3d 1277 (2nd Dept. 2011) .. People v Turner, 5 NY3d 476 (2005) . People v Vidal~ 26 NY2d 249 (1970) .. People v White~ 79 NY2d 900 (1992) . People v Williams, 5 NY3d 732 (2005) . Salinas v Texas, 570 U.S. _, n 3,133 S. Ct. 2174,186 L.Ed.2d 376 (2013) Strickland v Washington, 466 US 668 (1984) . Wainwright v Greenfield, 474 US 284 (1986) .. Statutes 52 50,53,64,66 66 45 35,42-44 31,33 46 31 30 32 51,64 32 2,50,64,65 33 46 33 31 51,64 32 PAGE Penal La\\T § 125.25(1)(a) 4,23,35 Penal Law § 125.27(1)(a) 4,23,34,35 Penal Law § 265.03(1)(b) 4 Constitutions PAGE New York Constitution article 1, § 6 31, 50 U.S. Constitution 5th Amendment....................................................... 31 U.S. Constitution 14th Amendment...................................................... 50 U. S. Constitution, 6th Amendment................................................. ..... 50 11 PRELIMINARY STATEMENT By leave of a Judge of the Court of Appeals, Anthony Pavone appeals from an order of the Appellate Division, Third Department, entered May 29, 2014. That order affirmed a judgment of the County Court of Clinton County, rendered August 7, 2011, convicting him of murder in the first degree (2 counts) and criminal possession of a weapon in the second degree. QUESTIONS PRESENTED 1. Whether County Court committed reversible error in overruling Appellant's objection to the prosecutor's cross-examination of Appellant as to whether, when taken into custody, he told the police what had happened at the time of the homicides? The Appellate Division majority concluded that, while County Court did err in overruling this objection, the error was harmless. 2. Whether the prosecutor's elicitation of evidence of Appellant's exercise of his pretrial right to remain silent, and the prosecutor's comments in summation about that exercise, which effectively invited the jury to infer Appellant's guilt from it, present an issue of law, and require reversal, where defense counsel failed to object to them? This issue was not presented to the Appellate Division or County Court. 3. Whether defense counsel's failure to object to the prosecutor's elicitation of evidence of Appellant's pretrial exercise of his right to remain silent in regard to the extreme emotional disturbance defense or to the prosecutor's summation comments on that exercise, and defense counsel's failure to request any limiting instructions, deprived Appellant of his constitutional right to the effective assistance of counsel? The Appellate Division held that these failures of defense counsel did not deprive Appellant of the effective assistance of counsel. 4. Whether defense counsel's failure to provide the defense psychiatric expert with the evidence he needed to offer a well-founded opinion as to the extreme emotional disturbance defense, and his apparent failure to even have reviewed that information himself before trial, deprived Appellant of his constitutional right to the effective assistance of counsel? The Appellate Division held that these failures of defense counsel did not deprive Appellant of the effective assistance of counsel. 1 PRESERVATION Question 1: Defense counsel preserved this issue by a timely objection (A320-321). In any case, no objection was necessary to preserve this issue (see Question 2, below). Question 2: As explained further in Point II, below, no objection is necessary to preserve for review the errors presented by the actions of a prosecutor in eliciting evidence of a defendant's exercise of his pretrial right to remain silent, and in effectively urging the jury, in his summation, to infer guilt from that exercise. Question 3: This issue, concerning whether trial counsel was ineffective, is not subject to preservation. See People v Turner, 5 NY3d 476 (2005)(finding appellate counsel ineffective for failing to argue that trial counsel was ineffective for failing to raise and preserve a statute of limitations defense). Question 4: This issue, concerning whether trial counsel was ineffective, is not subject to preservation. See ide 2 STATEMENT OF FACTS Background In the early morning of January 31, 2010, Appellant, a 52-year-old disabled and retired sergeant in the New York State Department of Correctional Services, shot to death his girlfriend of 8 or 9 years, Patricia Howard ("Howard"), and Timothy Carter ("Carter"), with whom she was spending the night. As of the date of the shooting, Appellant, who had no history of crime or violence, and who was diagnosed with post-traumatic stress disorder ("PTSD") and major depression, was experiencing extreme stress due to his mental disorders, loss of his career and social connections, several days of exhausting outdoor work on a plumbing problem, and the fear that Howard had left him for another man. Indeed, for several days, he had hardly eaten or slept. Armed with a handgun he had recently begun carrying for self-protection, he had gone to the home of Carter, with whom he suspected Howard was in a romantic relationship, and knocked on the door. Clad only in a bathrobe, Howard came to the door, where she and Appellant had a long conversation, interrupted once by Appellant's leaving the premises but promptly returning. In the conversation, Appellant, who was intermittently crying, begged Howard to return to him or at least to allow him to sleep there. When Howard asked him whether she "would have to f-- k" Carter "right in front" of him for him to understand that their relationship was over, Appellant, overcome by emotion, fired two bullets through the glass door of Carter's apartment, and then, inside the apartment, fired two bullets into both Howard and Carter. Thereafter, he left the area, but was apprehended a few days later. 3 Indictment As pertinent here, Appellant was indicted for two counts of first degree murder under Penal Law § 125.27(1)(a)(viii) and (b)l and one count of criminal possession ofa weapon in the second degree under Penal Law § 265.03(1)(b) (A23-7). Pretrial Proceedings Attorney William Meconi represented Appellant from his April 2, 2010 arraignment on the indictment (A26) until November 19, 2010, when Attorney John Carney replaced him (A24). Carney served a notice of psychiatric defense, specifying the defense of extreme emotional disturbance ("EED,,3) on December 9, 2010 (A25), but, as discussed further below, had not retained a psychiatric expert even as of April 17, 2011, about three weeks before trial. Trial Trial, which commenced May 9, 2011, may be summarized as follows. A. Prosecution Case The homicides Sarah Howard, Howard's daughter, explained that, for 8 or 9 years before January 2010, Howard was involved with Appellant, though they did not live together (A30-b-30c; 31); that their relationship was on and off, but had ended as of the end of December 2009 or the beginning of January 2010 (A31-32); and that, the evening before the killings, January 30, 2010, which was Howard's birthday, she (the daughter) went out to dinner with Howard, where Carter met them (A32-33). 1 This offense is committed when the defendant, over 18 years of age, intentionally causes the death of one person and, as part of the same transaction, and with intent to cause the death of or serious physical injury to an additional rerson, causes the death of such additional person, provided that the victim is not a participant in the transaction. "A" refers to the appendix to this brief. 3 See Penal Law §§ 125.25(1)(a), 125.27(2)(a). As will be discussed further below, that a defendant was experiencing an EED at the time of the offense is one of two elements that comprise the defense. The EED defense, including both elements, will be referenced as "the EED defense" in this brief; the extreme emotional disturbance element will be referenced as "EED." 4 Sarah Howard did not know whether in January 2010 Appellant and Howard were still seeing, calling, or intimate with each other (A36-37). She did note, however, that Howard told her that on January 30 "she was going over there," apparently meaning going over to see Appellant (A38). Wendall Davenport lived in an apartment in the same building as Carter, his landlord (A51-52). At about 3:30 a.m. January 31, 2010, when it was very cold (A63-64; 75), Davenport was woken by a knock on his door (A54-55; 57). Appellant, whom Davenport did not know, was at the door (A57-59). According to Davenport, in a three-minute conversation, Appellant, who was "polite" and seemed "well aware," said that his heat was out and that he was wondering where Carter lived, which Davenport told him (A59). Nicole Light, who lived in another apartment in Carter's building (A65), testified that at about 3:30 a.m. January 31 she was awoken by a knock at the door (A66-68). Opening the door, she spoke with Appellant, who asked if Carter was home (A67 -69). She said she did not know, and Appellant, who was polite (A77), said his truck is here so he must be home (A68). He then apologized for waking her (A68; 77). To Light, in their one to two-minute conversation, Appellant "seemed pretty normal," but "agitated" and "a little flustered" (A69; 76). At 3:50 a.m., the police received a 911 call from Howard, who related that she was at the residence of, and with, Carter, that her ex-boyfriend, who she said was not violent, was knocking on the door, and that she wanted him to leave (A41-44; 50). During the call, which was recorded and received in evidence (Exhibit 6), she said, apparently to Appellant, who perhaps can be heard indistinctly in the background", "You're not getting a hug" (A51). As a result of the call, two troopers were dispatched to the scene (A44-45). 4 The prosecution's psychologist, Stuart Kirschner, whose testimony is discussed below, suggested that he could hear Appellant faintly in the background. 5 A neighbor of Carter testified that, at about at about 3:30 a.m. the same day, he heard a total of six "pops," which were apparently gunshots (A78; 82; 86). Thereafter, he saw someone carrying a pistol-apparently Appellant - exit Carter's residence (A83-85). The man drove away in a truck seconds before the police arrived, at about 4:18 a.m. (A82-85; 88-90). The police found that the front and screen doors of Carter's residence were open; the glass to both was broken (A93-94). Howard, dead, lay face down in the living room (the room one entered upon walking through the front door) (A96-99; Exhibits 20-22). Carter, also dead, lay on the floor of the adjacent bedroom (A98-99; Exhibits 21-22). On a coffee table near Howard were five shell casings; a sixth was on the floor by the coffee table' (A100; Exhibit 21). Based on analysis of holes and spent bullets in the apartment, the police concluded that Appellant had fired two bullets into the apartment from the doorway, neither of which struck anyone (A103-105; 107-110; 125-126). Holes in Carter's upper left shoulder were consistent with entrance and exit wounds from a bullet (A123-124). The bullet had passed through his left shoulder and back, struck the wall, and rebounded to the floor (Al19-120; 127). Also, Carter had a hole through his right shoulder, which was raised over his head, and a hole in his neck (A121-122). The bullet entering the neck stayed within his body (Al14). Two bullets were in Howard, one in Carter (A127). This - two shots through the door, and two at each victim - accounted for the six shell casings found in the residence. In the apartment, Appellant's blood was under the kitchen table, and on the coffee table, a kitchen chair, and a hand towel (Al12-113; 131-132; 199-202). Blood on the kitchen floor in 5 Casings must be removed manually from a .357 Smith and Wesson revolver, the type and model of gun used in the shootings (AI0I-I02; 153-160; 206-215). 6 front of the stove was Carter's (A128-129). There was no evidence at the scene that anyone had tried to clean it (A102; 130-131). A pathologist who examined the scene and autopsied the bodies testified that Carter lay at the scene on his left side, with his right leg over his left leg, his right arm above his left arm, and the left side of his head on the floor (A137-141). He opined that Carter's left shoulder wound, caused by a bullet entering through the scapula and exiting the shoulder, was not fatal and was fired at a distance and from the side (A612-614). The other bullet to strike Carter, also fired from a distance, entered the back of his right shoulder, exited the front of the right shoulder, went through the neck, through the back of the face, and stopped just outside the corner of the left eye (A611a-612; 616-618). That bullet, which was fatal, was fired when Carter was on the floor with his right arm raised over his head (A616-619). The pathologist observed that Howard, clad only in a robe, had one gunshot entrance wound to her chest and a corresponding exit wound through her back (A143-144; 621-624). Another bullet entered the top of the head and traveled down into her neck (A143-144). When shot in the chest, Howard was alive, standing, and holding her robe closed with her right hand, which had "powder tattooing" from the gunshot, reflecting that the gun was close to but not touching her (A145-149). The shot to Howard's head was immediately fatal, and was therefore the second shot to her (A145-146; 151-152). From the absence of tattooing in respect of the second bullet, the pathologist concluded that the gun was at least 3 feet away at discharge (A151- 152). From the trajectory of that second bullet, the pathologist concluded that, when it was fired, Howard was kneeling, bent over, or in some other position with her head down (A151-152). 7 Appellant's apprehension On February 2, Appellant rented a room at the Del Motel in Broome County, registered under a false name, and paid cash (A632-633; 637-642). His truck, identified by its license plate, was found at the motel February 4, by which date a warrant had been issued for his arrest (A622- 631). A police negotiator, John Ellis, spoke with Appellant about 2~ hours by phone before he left his motel room and was apparently immediately taken into police custody at about 4:00 a.m, February 5 (A635-636; 643-644; 647-649; 652-655). At times in the discussion, a recording of which was received in evidence (Exhibit 205), Appellant said he had a gun and was thinking of harming himself (A653; 655; 659). Moreover, he indicated that, but for his love for his father, he would have killed himself (A659-660). He repeatedly said, however, that he was concerned with police safety and did not want to harm anyone (A660). Also, he revealed that he had prepared a will en route from Clinton County to Broome County (A662). The prosecutor elicited from Ellis on direct-examination that, in the course of the discussions, Appellant indicated in general terms that he had done something bad, but "never really specifically got into the actions of the crime" (A654). Ellis, however, did not ask him about the crimes (A654). Police investigator Les Hyman, the first police contact with Appellant when he left his motel room (A670), was with him for his transport from the motel to a police facility in Binghamton, and intermittently for the next 3 to 4 hours (A674-675). Hyman Mirandized Appellant when transporting him to the police facility, but, because a warrant had been issued for his arrest, no one questioned him about the crimes (A670-675). The prosecutor questioned Hyman as follows on direct-examination: Q ... [D]id [Appellant] ever make any statements to you about his criminal conduct as charged in Clinton County? 8 A He did not. He, not directly about the circumstances for the incident that led to his arrest. There were conversations about other matters of his life here in Clinton County. QAt no point in time he made any statements to you that, you know, I did this under extreme emotional distress, I freaked out, anything of that nature? A No. At one point he did tell me that he wouldn't be here referring to his being in the interview room if it wasn't for his father. QThat was the only statement that he made of that nature? A Yes, sir (A675-676). Defense counsel did not object to this questioning (A676). Appellant's backpack, found in his motel room, contained, among other things, the loaded handgun that he used in the killings, handwarmers, an emergency blanket, raisins, snack bars, a poncho, a ski-mask-hat, and a flashlight (A154-155; 157; 159; 203-215). In Appellant's truck was a will, dated January 31, 2010 (A161). On February 5, Appellant had a scar on his right hand, and $400.00 cash in the underwear he wore (A162-163). Police investigator Kevin Leavine, with police investigator Dufour, took custody of Appellant at about 9:50 a.m. February 5, and drove him to an airport to fly back to Clinton County (A164-168). At about 10:09 a.m., Dufour Mirandized Appellant (A168). En route to the airport, Appellant said he should have shot himself in the head when he had the chance (A168- 169). The prosecutor asked Leavine on direct-examination: QDid he make any comment regarding his conduct in Clinton County that resulted in his arrest? ANo. QHe didn't make any statement to you that he snapped or he lost it? A No, sir (A169). Defense counsel did not object to this questioning (A169). 9 At the airport, Appellant's custody was transferred to police investigator Weightman, who flew back to Clinton County with him (AI70-171). On the flight, Weightman testified, Appellant was upset, and even broke down and cried one, two, or three times (AI72). He stated that he wished he could jump out of the plane, and that he "had [his] chance and blew it" (AI72). The prosecutor questioned Weightman as follows on direct-examination: Q: Now, during that transport did the defendant make any statements to you pertaining to his criminal conduct that he had snapped or lost it on the early morning hours of January 31, 201O? A No (AI72-173). Defense counsel did not object to this questioning (AI73). Phone Recordings Exhibit 152, a compact disk containing the phone messages on Howard's cell phone and home phone after her death, and Exhibit 212, a transcript of the voice mail messages, were received in evidence (A216-222; 699-706). Of the 20 total messages, 19 were from her cell phone, 12 were saved, 8 new, and all were from Appellant (A219-220). The police found no phone messages from Howard on Appellant's cell phone (A230- 231). They learned that there were no records of any calls from Howard's home phone to Appellant from January 23 to January 31 because Howard's phone carrier would not keep such records (A223-224). Exhibit 220, Howard's cell phone records for that period (A224-225), shows that that phone called Appellant's phone 14 times in all, twice on January 29, and thrice on January 30, at 12:40 a.m., 10:06 a.m. and 10:40 a.m., for 227, 189 and 19 seconds, respectively (A224-227). During the same January 23-January 31 period, Appellant's phone called Howard's 34 times (A229). 10 A recording of messages on Carter's answering machine after his death, Exhibit 154, and a transcript of that recording, exhibit 213, were received in evidence" (A232-239; 707-708). B. Defense Case Appellant Appellant, who testified May 31, served six years, four active duty, in the Marines (A324). Thereafter, he served 26 years in the Department of Correctional Services, achieving the rank of sergeant before leaving due to a 2006 work injury (A267-269). Before the homicides, he was never convicted, nor even accused, of a crime (A269-270). Appellant started seeing Howard in the fall of 2000; he told his wife about it and moved out of their residence that November (A272-273). In January 2010, his relationship with Howard was the same as before, on and off, but he was never with anyone but her (A273). In 2006, Appellant explained, an inmate attacked him, fracturing his forehead and eye socket in five places, giving him a concussion, and effectively ending his career (A269-270; 325- 326). His treatment providers included plastic surgeons, a dentist, and an eye doctor (A270). After his injury, he was on pain medications and antibiotics because his nose fluid went in his eyes, his eye fluid went in his nose, and his eye would get hooked on the fractured bones (A271). His doctor prescribed Zoloft for depression (A271). At some point he was taking 3 to 4 pills daily (A271-272). Appellant started seeing Dr. Gitlin, a psychiatrist, shortly after the 2006 incident, and saw him as recently as the Friday before the homicides (which were early Sunday morning) (A272). As of January 2010, Appellant explained, he felt vulnerable and weak, and feared a prison work 6 In its decision, the majority at the Appellate Division summarized what it considered to be the more pertinent calls (A689-692). 11 gang would harm him (A325). Also, he was then on medication for back pain from a 2007 sky diving incident (A308). Not long before the homicides, Appellant recalled, he had begun carrying a handgun for protection against a tenant he had evicted (A278-279; 282-283). He feared that that tenant, who had stolen a police shotgun and had held the police off with a gun, would shoot him (A279-283; 327-328). Appellant had been carrying the gun to, among other places, his psychiatrist and his bank? (A292). Howard apparently told Appellant Friday, January 29, that she had a "new friend" (A274). Appellant told his psychiatrist that day that he had not seen Howard in two weeks, that she was seeing someone else, that he had troubles with his apartment, and that he continued to isolate himself (A328-329; 344). The next day, Saturday, before 11:00 a.m., Appellant called Howard a couple of times, she came to his residence, and he gave her oral sex (A274-276; 347). He could not do more because he had not showered in days and was filthy (A275-276). Indeed, he testified, he had neither slept nor eaten in days, apparently because he was working on the plumbing problem with his rental properties, which he found "overwhelm[ing]" (A275-277). Five families were relying on him to fix the problem, but he had failed (A277). At some point that Saturday - he did not recall the time - he "went to the rent all place and ... rented a huge piece ofmachinery" to use on his plumbing problem (A368-369). Appellant conceded that he made many calls on Saturday evening and into Sunday morning, which he heard in court (A274). In making those calls, he assumed Howard was with the "new friend" she had told him about, though she had told him she was going out to dinner 7 Defense witness Carla Stout corroborated this by testifying that Appellant was carrying a gun for protection due to an incident in which a tenant of an apartment he owned had fired a gun (A245). 12 with her daughters (A274). As of 9:00 p.m. January 30, Appellant was at his house or traveling to Howard's residence, trying to learn whom she was with (A283-284). He was "confused," "lost" and "[P]hysically [and] ... [m]entally ... fried" (A284). He cried when he thought Howard might be with her "new friend" (A284-285). He admitted that he was jealous of Howard, but denied that he had to control her (A351). Appellant went to Howard's daughter's house and to Howard's house, where he waited (A335). He then drove back to his own residence, where he got pain medication and the phone number for Carter (A335-336). Next, he apparently drove to a Wendy's for food (A335-336). Though his testimony was not clear on this point, it seems that he drove from Wendy's to Carter's (A335-336). He had a gun with him, but not to kill anyone (A287); as noted, he had recently begun carrying a gun for protection. While he did say in a phone message that he was going "to fight" for Howard, he had no intent to kill (A285). The gun was in his waistband when he exited his truck at Carter's residence (A292). Appellant seemed to testify that he knocked first at Light's door, then Carter's, then Davenport's, and then returned to Carter's (A290; 340). Contradicting the testimony of Davenport, whose door was open, Appellant maintained that he said to Davenport, "[Y]ou're letting the heat out" (A288). He did not care that Light and Davenport saw his face (A289). When he knocked on Carter's door, Appellant recalled, Howard came to it, wearing only a robe (A294). It was only then that he knew for certain she was with Carter (A273-274). He asked her what she was doing there, but did not recall asking for a hug (A295). He repeatedly told Howard that he "need[ed]" her (A296), and asked to be allowed to sleep in a spot inside the door to be near her (A297). Appellant recalled that he was crying on and off while at the door; 13 indeed, his "eyes were all foggy from crying ...." (A305-306). As Appellant spoke with Howard, a figure was behind her (A305). After Appellant had spoken to Howard for some time, she told him to go home and that they would talk later, and he then drove away (A332-333; 341). After driving about 200 feet, however, he turned around and returned to Carter's, for he felt he could not leave (A349-350). He explained, "I was afraid of myself if1 went home" (A350). Apparently at the end of his second conversation with Howard, she said, "[W]hat's the matter with you. You don't get it. What do 1have to do, f- - k him right in front of you" (A301- 310; 349). This made Appellant feel "distraught" (A302). At this point, he recalled, he "threw" himself at the door (A302), and Carter said, "I have a gun on you" (A303). Appellant pulled his revolver out, and "the window exploded in front of' him (A304). He fired two shots through the door within seconds after Howard's taunting remark (A304; 350). He maintained at one point in his testimony that the gun fired accidentally into the door (A353-354). After the window exploded, he stuck his gun through it and fired in Carter's direction (A305-306). At the time, he felt that the experience was not real (A303). He entered the residence by reaching through the door (A303-304). He cut himself in the process, but did not even think about it (A304-305). Appellant admitted that he shot Howard in the chest, apparently before shooting Carter (A358-359; 367). He testified that he did not remember shooting Carter, and that he did not remember what happened to Carter (A358-359, 366). He also testified, however, that he shot at Carter because he thought Carter had just shot at him (A307-308). As he approached Carter, who was in the bedroom, he expected to be shot (A357; 360-362; 364). Something from Carter's left side hit him, he drew back, and his gun fired (A365-366). 14 When he shot the victims, Appellant explained, he "was feeling all kinds of things," and "[a]ll kinds of emotions, and then there were spots where there was nothing. There were no emotions" (A372). At that time, he was not "angry" or "jealous," but "hurt" and "distraught" (A373; 375). He could not specify his complete frame of mind at that time; he "wasn't there for a lot of it" (A315). Some of what happened was "burnt in [his] mind," and some was not (A317). Appellant did not recall taking out the gun casings found in the residence (A309). He had extensive training with guns, and knew that bullet fragments could be traced back to a specific gun (A310-311). He cleaned nothing in the apartment, and tried to hide no evidence (A310). Contemplating suicide before and after the killings (A310), Appellant reloaded the gun upon returning to his apartment, in order to shoot himself (A323). He did not tum himself in to the police because he could not decide whether to kill himself (A311). He made a will while sitting in his truck after the crimes (A311-312). Appellant explained that he had $400.00 on him at the time of the arrest as part of a plan to walk to his father's residence in Glens Falls (A312-314). For that hike, he bought a back pack, handwarmers, a face mask and other items (A312-314). He removed the battery from his cell phone to preserve it by keeping it warm, and so that no one would call him (A314). The prosecutor cross-examined Appellant as follows: Q ... [W]hen you were taken into custody on February 5, 2010, did you tell ... Detective Sergeant Ellis what had happened up in Clinton County on January 31, 201O? MR. CARNEY [defense counsel]: Objection. THE COURT: Overruled. MR. PAVONE: I couldn't. MR. WYLIE: Why? A Because I didn't remember it all (A320-321). 15 There was no evidence that Appellant made any statements to the police directly addressing the shootings. The record is clear that Appellant was given Miranda warnings at least twice after his arrest (A168; 670-673), and that the police did not question him about the crimes, as to which his right to counsel had attached because an arrest warrant had been issued (A673- 674). Other defense lay witnesses Carla Stout, a friend of Appellant who had known him since high school, testified that he was never violent or abusive to her, and never lost his temper with her (A241-242). Appellant, she explained, is a very kind-hearted, loving man (A245-246). For example, he would carve statutes "and ... give them to charities to raffle off for benefits" (A246). Before the 2006 work injury, he was sociable and friendly; after it, he was not (A246). Indeed, after that injury, he became depressed, kept to himself, and did not leave his home much (A244-245). At about 11:50 a.m. January 30, 2010, Stout recalled, Appellant called her and told her that it was Howard's birthday, that Howard had been waiting for a "special present," meaning sex, and that she should not call or come over because Howard would be stopping by (A242-243; 247). Appellant, Stout explained, had been impotent due to Zoloft, but had been off it for thirty days (A242-243). Defense witness Sharon Pavone had been married to Appellant 33 years, for the last 10 of which they were separated, and she was apparently divorced from him in January 2011 (A248). Appellant left Sharon for Howard, who was married to Sharon's brother (A254-255). Nevertheless, Sharon explained, she has good relations with Appellant, who was never abusive to her and never hit her or their two children, who were now grown (A249-250). 16 According to Sharon, Appellant was very well liked as a corrections officer, and other corrections officers told her he was highly respected (A255). After the 2006 incident, however, "[h]is career ... went downhill," as "[h]e was panicked all the time" (A255-256). He became "antsy" and "more of a loner," "cut[ting] off ties with friends ... and family" (A259-260). Moreover, though before the 2006 incident Appellant was always involved with charity work, after it he became "paranoid," and "cut off his ties with all his activities he liked to do" (A252- 253; 260). In Sharon's last conversation with Appellant before the killings, they spoke of Appellant's very big sewer problem with his rental properties, about which he was stressed and had apologized to his tenants (A261-262). Due to the problem, she recalled, "he hadn't been eating or sleeping, and he just was beside himself with it" (A261-262). Appellant's daughter, Angela Pavone, testified that he was never violent to her (A264). After his 2006 injury, however, he became paranoid and antisocial, fearing and closing himself off from others (A265). He would not even take phone calls from her, and it would be weeks before he would return her call (A265). Defense psychiatrist The defense called forensic psychiatrist Jonathan Weker on June 1 (three days after Appellant's testimony) (A376). With a bachelor's degree from Harvard and a medical degree from the University of Maryland, Weker did his residency in psychiatry at Yale (A376-377). Board certified in psychiatry since 1997, Weker is licensed to practice medicine in Vermont (A376-379; 381). He has testified about 100 times, about as often for the prosecution as for the defense (A381-383). 17 Weker interviewed Appellant twice, on May 3 and May 21, 2011, for a total of 12~ hours' (A385). He did not listen to recordings of Appellant's calls to Howard and Carter, and thus by his own admission had "no sense of the quality of voice or of emotion that might have been attached... " (A389-390). Instead, he read transcripts of the calls, which, in his opinion, reflect that Appellant was in a state of "anguish" (A389-391). He did not review Appellant's trial testimony, but he conceded that it "no doubt" "would be very useful to review" it (A450). Weker explained that Appellant's 2006 work injury gave rise to PTSD and exacerbated an existing major depressive disorder (A392-397). The PTSD was diagnosed by two doctors following the 2006 incident (A453-454). As a result of that incident, Appellant was prescribed various mental health medications, including Zoloft, for depression and anxiety; Adderoll, an amphetamine used to treat total inertia and lack of energy; and Xanax, a fast-acting anti-anxiety medication (A398-399). Weker observed that, after the 2006 incident, Appellant, affected by the PTSD and major depression, feared coming in contact with former or present inmates, and suffered from paranoia and disturbance of his rational thinking (A402-404; 411). He experienced a few episodes of low- grade mania, which involves a state of increased energy, decreased need for sleep, and impulsivity (A411-412). Also, he may have had a gambling disorder (A412). Consistent with their trial testimony discussed above, Appellant's family members described to Weker significant changes in Appellant after the 2006 incident (A441). Areas of change included his capacity to work, his avoidance of people and situations, and "the fearfulness ... he exhibited [in] situations that ... reflected on the trauma... " (A441). 8 Trial started May 9, 2011, so Weker had not finished his interview of Appellant, let alone prepared a report, until the trial had been in progress more than one week. 18 Appellant's relations with Howard, Weker explained, never became stable, but were always "hot and cold on and off," and "emotionally high pitched... " (A405-406). "[O]ne would frequently break up with the other, and then they would ... eventually corne back together again" (A406). In the period before the crimes, Weker observed, Appellant suffered from accelerating distress, worsening depression, increasing anxiety and paranoia, fearfulness, anguish, and deteriorating judgment (A413). As of January 31, "he had ... been in a ... rising crescendo of anxiety and frenetic dysfunction for a couple days" (A414). In that period, he had neither slept nor eaten, and he was preoccupied with a sewer problem in the apartment building he owned, having rented thousands of dollars of equipment though the problem was actually a straightforward one that could be fixed in one to two hours (A414). Indeed, Appellant exacerbated the problem instead of fixing it (A414-415). He had lost his profession and any hope of meaningful work (A415). Also at this time, Appellant had a desperate emotional reliance on his relationship with Howard (A415). He learned only on January 29 that Howard was talking about meeting someone else, and "it became desperately important to him ... to rekindle ... [their] love " (A416). Finally, on January 31, he was "caked in mud ... [and] sewage," "physically run down," "[m]entally ... undone[,] and desperate" (A415). Weker recounted that on January 30, Howard's birthday, Appellant gave Howard oral sex at his residence, and he anticipated that he and Howard would be intimate that night (A416). When Appellant gave up on the plumbing problem, he tried to call Howard, who had said she would be out with her sisters (A417). As the evening wore on, he continued to try to call her, becoming more and more desperate as she failed to call back (A417). Eventually, he learned Carter's identity and called him, intending to make him see that he (Appellant) needed Howard 19 more than Carter did (A417-418). His emotions spiraling, Appellant then went frantically looking for Howard (A418). At about 2:00 a.m., Weker recalled, Howard returned Appellant's call, told him to stop calling, made him realize she had lied to him about where she was going, and led him to decide to go to Carter's residence (A420). Appellant's principal emotion when he went to Carter's was anguish, but he also felt sadness, desperation and fear (A429). In his account of the killing to Weker, Appellant recalled that, after shooting Howard, he brushed her hair, put the gun next to his head, and repeatedly pulled the trigger (A445-448). Weker opined that Appellant was suffering from an extreme emotional disturbance at the time of the crimes, for which there was a reasonable explanation or excuse (A432-433). The bases for his opinion were that Appellant was physically and psychologically debilitated; that he was failing to function in most realms of his life; that he had a great emotional stake in his relations with Howard and was desperate to hold on to her; and that, when he left Carter's house the first time, he felt that if he went home his life would be over, apparently in that he would kill himself, so he returned to Howard (A432-433). Appellant, who had recently lost several meaningful aspects of his life, including his marriage, most of his social life, and his profession, was now in grave danger of losing a relationship in which he was deeply invested (A414-415; 432b-433). In Weker's view, Appellant was experiencing the EED for much of the time after he began trying to reach Howard January 30 until the shooting (A438-439). The event precipitating the shooting was Howard's question whether she would have to perform sex with Carter right in front of Appellant for him to go home (A439-440). At that point, Weker explained, Appellant became unable to rationally control his actions (A434; 439). 20 Weker observed that it is common to have difficulty recalling traumatic experiences, and for those suffering from PTSD to be unable to recall germane aspects of events (A421-422). Consistent with this, Appellant acknowledged that his memory of these events was not entirely clear, and might be distorted (A428). Weker did not find Appellant to be faking any kind of illness (A423-423; 427). Moreover, Weker observed that Appellant made no effort to conceal his crime, and took "no forethought" to avoid criminal responsibility, which strengthened Weker's conclusion that this was not a deliberate or planned act (A431). That Appellant brought the gun with him to Carter's residence, Weker explained, does not disqualify him from the EED defense (A436). Indeed, Weker noted, even if Appellant had planned the killing, the EED defense would not be precluded (A436). Weker used an article on the EED defense co-authored by the prosecution psychologist, Stuart Kirschner, to better understand the defense (A442). C. Prosecution Rebuttal In rebuttal, the prosecution called Brian Martin, who worked at the rental store Appellant visited January 30. Martin explained that Appellant was in the store that day from about 12:15 p.m. to 12:45 p.m., they discussed plumbing supplies in regard to Appellant's problem at his rental property, and Appellant rented a water jet (A456-458). Martin noticed nothing unusual about Appellant's odor or demeanor (A458). Prosecution psychologist Stuart Kirschner, an associate professor ofpsychology at John Jay College of Criminal Justice and a licensed psychologist in New York State, explained that he has evaluated about 50 people for the EED defense (A458-459). About 90 percent of those evaluations were for the prosecution (A459). He has found EED in only about 10 percent of cases in which the 21 prosecution retained him (A460-461). In his EED evaluations, Kirschner explained, he may have to interview the defendant, who may be unreliable due to mental illness or his interest in the case; therefore, he must also interview those who know the defendant, and review pertinent records (A462). According to Kirschner, when he interviewed Appellant, on February 10, 2011, he was "basically cooperative," but "proved to be difficult to get a straight answer from"; he had to keep going back and explaining further (A463-464). Appellant was "controlling the interview," and would object if Kirschner tried to cut him short (A465). Appellant told Kirschner his relations with Howard were turbulent: they might break up for one to two months, and then "somehow get back together" (A475). They had a verbal dispute in December 2009, which, to Kirschner's "understanding[,] is when things really were kind of marking the end of their relationship" (A488-489). A few weeks later, Appellant informed Kirschner, Howard told him that if he should be told she had been with another man, "it's just a friend, you have nothing to worry about," and "[s]he mentioned the name Carter" (A489-490). In contrast to Weker, Kirschner listened to the audio recordings of Appellant's calls to Howard and Carter, and of the negotiations between Appellant and Ellis (A470-473). Kirschner opined that, in his phone messages to Howard, Appellant was trying various tactics to get her back, including menacing, blackmailing and making her feel guilty (A485-486). He explained that it was important that he listened to the actual recordings ofAppellant's calls to Howard and Carter, for this allowed him to ascertain, based in part on the tone of Appellant's voice, what his emotional state was and how he was trying to get his way with Howard (A473; 485-486). Kirschner acknowledged that two evaluators had found that Appellant had PTSD (A474). Kirschner, however, saw no "clear signs" of that disorder, though he conceded "it has to be 22 considered" (A474; 494-495). Even Kirschner concluded, though, that Appellant suffered from major depression (A494-495). In Kirschner's view, Appellant's PTSD, if any, and his depression, were unrelated to this case, for they did not affect his behavior (A496-498). Appellant told Kirschner that, when his gun discharged, he went inside because that is what he is trained to do (A498). This conduct, Kirschner opined, is inconsistent with PTSD, pursuant to which he would be expected to avoid the unpleasant situation (A498). According to Kirschner, Appellant had not lost his ability to control his actions at the time of the killings (A499). In Kirschner's view, Appellant's getting information about Carter online was consistent with a "stalker," not with one who had lost control (A490-491). Kirschner opined that jealousy alone, but not anger alone, could suffice for an EED (A479). He pointed to nothing in the EED statutes (Penal Law §§125.25(1)(a), 125.27(2)(a)), however, and to no other authority, to support this claim. In any event, as discussed below, even Kirschner did not think Appellant's sole emotion at the time of the crimes was anger (A525). Appellant told Kirschner he did not want to intrude on the lives of the tenants of Carter's building at 3:00 a.m., so he knocked on their doors lightly (A483). Further, Appellant admitted that he spoke to Light calmly (A481a-482). This indicated to Kirschner that, at that time, minutes before the killings, Appellant was thinking rationally and was not out of control (A482-483). He noted that Appellant did not tell him just what emotions he had at the time of the shooting, and was vague as to the actual shooting (A491-492). He opined that Appellant would not have passed what Kirschner called the "policeman at the elbow test," i.e., whether he would have acted the same way had a policeman been by his side (A492-493). Kirschner did not address the question of whether an actor under the influence of overpowering emotions could be simultaneously 23 thinking rationally in some ways, but not others. Moreover, he conceded that the EED statute does not require that, to establish the defense, the defendant must have lost the power of "rational reasoning" (A506-507). Kirschner opined that "the classic ... heat of passion situation" was absent here, for Appellant sought out the situation he found at Carter's; he had every chance not to go there" (A496). He admitted on cross-examination, however, that a defendant may cause his own stress, yet establish the EED defense, and that the defense is not precluded even when the killing is planned (A508-509; 518). Also on cross-examination, Kirschner recalled that Appellant told him that on January 30 he called Howard, she called him back, and he was crying -- in fact that he "sobbed until his stomach hurt" (A509-5l 0). Kirschner conceded that this behavior indicated emotion (A5l 0). Kirschner also conceded on cross that Appellant told him that when he saw Howard in a robe he felt that "I'm dead, I'm done, there was no reason to live," and that "it was like I was hit by a truck" (A5l9). Kirschner thought it significant that Appellant, in effect, "saw the truck coming, and he walked into it" (A5l9). He did not explain, though, why this would make the EED defense (as distinguished from the old heat of passion defense) inapplicable. Also on cross-examination, Kirschner admitted that Appellant had told him that at the time of the shooting he felt he was "going to die" or was "dead," that he was "distraught," and that he felt "full of lead" (A500-50l). Further, Kirschner conceded that Appellant had never been a violent or criminal person (A503), and that, before he got to Carter's, Appellant only suspected, and did not know, that Howard was there (A504). 9 As discussed in the argument section, below, the EED defense has superseded the old "heat of passion" defense. See People v Casassa, 49 NY2d 668, 676 (1980), cert denied 449 US 842. 24 Kirschner admitted that the EED need not be at the exact moment the defendant "pulls [a] trigger," and that the distress could be something "simmering" in the defendant's "unconscious" that "lead[s] to ... an explosion" (A521). Consistent with Weker's testimony, Kirschner conceded that Appellant was not faking an EED, and that one faking an EED would not say, as Appellant did, that at times he felt no emotion (A510-511). While Kirschner stated that he did not recall whether Appellant ever said he "lost control," he admitted that Appellant did tell him he "freaked out," a statement Kirschner omitted from his report (A513). According to Kirschner, "freaked out" does not necessarily mean "lost control," so an EED is not necessarily established by evidence that the defendant "freaked out" (A514). Kirschner did not explain the difference between those terms. Kirschner acknowledged on cross-examination that Appellant advised him that, at Carter's, he "was just crying, crying, crying, I'm shaking, I'm crying" (A530-531); that he could not hear half of what Howard was saying because he was crying and his eyes were watering (A531); and that he had then felt that "everything was caving in on" him (A527). Kirschner, however, omitted these statements from his report (A527; 530-531). Further, Appellant told him he "didn't have the vocabulary to even describe ... what he was feeling" (A529). Appellant told Kirschner that, at Carter's residence, he was not angry, and that he blamed himself, not Howard or Carter (A523). Kirschner admitted, though, that this could just be what Appellant wanted to believe (A524). Probably, Kirschner conceded, Appellant's emotions included fear, jealousy, rage, anger and love (A525). Nevertheless, Kirschner never asked Appellant if he was distraught or fearful, or, indeed, if he had any emotions except anger (A526). In any case, while Kirschner admitted that Appellant was emotional at the time of the killings, he 25 opined that his emotion was not "extreme," and thus did not suffice to establish the defense (A522). He identified no metric, however, that would allow an "extreme" emotional disturbance to be objectively distinguished from a non-extreme one. D. Defense arguments Defense counsel urged the court to bar the People from referring in their summation to Weker's failure to listen to the recordings of Howard's 911 call and to the recorded phone messages ofAppellant to the victims, because Appellant's prior attorney, Meconi, did not give him the CDs, but the court declined to so order (A532-537; 547-548). The prosecutor pointed out to defense counsel, "You at no point in time ever indicated to me that you didn't have those recordings until the middle of the trial when they were turned over again. You indicated to me you didn't have them. I turned them over again then, the recordings" (A534). Defense counsel conceded that this was correct, and failed to explain why he had not sooner requested the recordings (A535). E. Prosecution summation As will be discussed further in Point I of the argument section, below, in his summation, the prosecutor urged the jury to reject the EED defense based on Appellant's failure to report the killings to the police instead of fleeing the area (A561). Also in his summation, the prosecutor returned to and emphasized his questioning of Appellant and police witnesses as to Appellant's failure to tell the police about his EED defense when taken into custody (A562-563). Defense counsel did not object to these comments on Appellant's exercise of his right to remain silent. 26 F. Verdict Rejecting the EED defense, the jury found Appellant guilty of the two first degree murder charges. Also, the jury found him guilty of criminal possession of a weapon in the second degree (A566-568). Sentencing County Court sentenced Appellant to a term of life imprisonment without parole on each murder count, and ten years' imprisonment plus five years' postrelease supervision on the weapon offense. All sentences were to be concurrent (A589-590). Appeal Appellant argued before the Appellate Division that the prosecutor's elicitation of evidence of his exercise of his pretrial right to remain silent, and his comments on that exercise in his summation, violated his right to remain silent and his right to due process of law under the federal and state constitutions. The 3-Justice Appellate Division majority, noting that defense counsel only objected to one instance of the prosecutor's elicitation of this evidence, and not at all to his summation comments, concluded that, though Appellant's constitutional rights were violated, the evidence against the defense was overwhelming, and thus that the error was harmless (A685-694). Appellant also argued before the Appellate Division that defense counsel was ineffective in failing to object to all but one instance of the prosecutor's elicitation of evidence of Appellant's exercise of his pretrial right to remain silent, in failing to object to the prosecutor's summation comments on the same, and in failing to provide the defense psychiatrist with the evidence he needed to offer a well-founded opinion as to the EED defense. The Appellate Division majority found no ineffective assistance. It suggested that defense counsel may not have 27 objected to the prosecutor's elicitation of evidence of Appellant's exercise of his pretrial right to remain silent because he wanted the jury to be presented with evidence of Appellant's mental distress when apprehended (A686). The court did not explain, however, why this desire would require that the People be allowed to present explicit testimony that Appellant did not discuss the killings with the police. Moreover, the court did not expressly address the significance of defense counsel's failure to object to the prosecutor's summation comments on Appellant's exercise of his right to remain silent, and did not even mention his argument regarding counsel's failure to provide the defense psychiatrist with important evidence. Instead, it disposed of these arguments by stating that Appellant's "remaining contentions ... have been examined and found to be lacking in merit" (A694). Justice Garry, the sole dissenter, addressed only the right to remain silent/due process argument. Like the majority, she concluded that the prosecutor's elicitation of evidence of Appellant's exercise of his pretrial right to remain silent violated his constitutional rights (A694- 695). Contrary to the majority, however, she concluded that, on the evidence presented, the jury could well have accepted the EED defense, that the evidence against the defense, therefore, was not overwhelming, and thus that the error was not harmless, and required reversal (A696-697). A Judge of this court has granted leave to appeal (A698). 28 ARGUMENT POINT I THE PROSECUTOR'S ELICITATION OF EVIDENCE OF APPELLANT'S POST-MIRANDA EXERCISE OF HIS CONSTITUTIONAL RIGHT TO REMAIN SILENT, HIS COMMENTS ON THAT SILENCE IN HIS SUMMATION, AND THE ABSENCE OF ANY LIMITING INSTRUCTION, DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHTS TO REMAIN SILENT, TO A FAIR TRIAL, AND TO DUE PROCESS OF LAW, AND REQUIRE REVERSAL A. Pertinent facts On the People's case-in-chief, the prosecutor repeatedly elicited evidence of Appellant's failure to tell the police of his EED defense. From Investigator Ellis he elicited that Appellant "never really specifically got into the actions of the crime" in the discussions leading to his departure from the motel room (A654). Thereafter, he elicited from three police investigators, Hyman, Leavine and Weightman, that, after Appellant was given Miranda warnings - twice - he made no statements to the effect that his mental state at the time of the crimes would support the EED defense - i.e., "I did this under extreme emotional distress, I freaked out, anything of that nature" (A169; 172-173; 675-676). Defense counsel neither objected to the prosecutor's elicitation of this evidence, nor requested any limiting instructions. The prosecutor also cross-examined Appellant about his post-Miranda silence. He asked, "[W]hen you were taken into custody on February 5, 2010, did you tell ... Detective Sergeant Ellis what had happened up in Clinton County on January 31, 201O?" The court overruled defense counsel's objection to this question, to which Appellant responded, "I couldn't," "[b]ecause I didn't remember it all" (A320-321). In his summation, the prosecutor, not content to let this evidence speak for itself, returned to and reinforced the theme of Appellant's failure to tell the police about the killings and his EED defense: 29 Now, I submit to you, ladies and gentlemen, that the defendant took action not to be caught by the police. It took a rational thinking of a person who's committed murder to disclose himself, he left the area, he could have gone to the police department and said, you know, I'm suffering from an extreme emotional disturbance, I lost it, my ex-girlfriend told me, what do I have to do, do I have to like Mr. Carney said blank him right in front of you. I lost it, and I shot into the house, and as a result of that, Tim Carter and Patty Howard were dead. Well, he didn't do that (A561). Also in his summation, the prosecutor, arguing that Appellant had concocted the EED defense, drew the jury's attention to his cross-examination of Appellant as to whether, when taken into custody, he spoke to the police about his mental state at the time of the killings: It's all about him wanting to tell his story because I do submit to you that his daughter provided him information regarding EED sometime after he was charged with these offenses, and that his EED defense never came out until that time. When he was taken into custody on February 5th, we heard nothing about his emotional state. In fact, other than people saying that he was apparently making comments about suicide, there was nothing else about his emotions at that time. Although it being five days later (A562-563). Defense counsel failed to object to these remarks in the prosecutor's summation. The prosecutor, then, elicited on the People's case-in-chief evidence of Appellant's failures to proclaim his EED defense to the police both before his arrest and after his arrest and receipt of Miranda warnings. Further, he cross-examined Appellant about his post-Miranda failure to disclose the EED defense to the police. Finally, in his summation, he commented on these exercises of the right to remain silent, returning them to the jury's attention, and encouraging the jury to infer from them that Appellant had concocted the EED defense. B. Analysis 1. The constitutional violation "[A] defendant's silence cannot be used by the People as a part of their direct case." People Conyers, 49 NY2d 174, 177 (1980) (citing People v Rutigliano, 261 NY 103 (1933)), 30 vacated on other grounds, 449 US 809 (1980), adhered to on remand 52 NY2d 454 (1981). Moreover, use of a defendant's pre-arrest silence to impeach his trial testimony violates this state's "common law rules of evidence." People v DeGeorge, 73 NY2d 614, 616-620 (1989); People v Conyers, 52 NY2d 454, 457 (1981). A corollary of these rules is that a defendant has no obligation to go to the police before his arrest to proclaim his innocence or to otherwise explain his conduct, and his failure to do so may not be used against him at trial. See People v Pressley, 93 AD2d 665, 669-670 (1st Dept. 1983). Additionally, "a [d]efendant ha[s] the constitutional right to remain silent at the time of his [or her] arrest (NY Const. art I, §6; U.S. Const. 5th Amend) and his exercise of that right at or after his arrest cannot be used by the People as part of their direct case." People v Basora, 75 NY2d 992, 993 (1990)(citing, among other cases, People v Conyers, 49 NY2d 174, 177, supra and People v Rothschild, 35 NY2d 355, 359 (1974)). Impeaching a defendant by his post-Miranda silence violates not only state rules of evidence, but also the defendant's right to due process of law under the 14th Amendment of the United States Constitution, for the Miranda warning contains the state's implicit promise to not use the defendant's silence against him. See Doyle v Ohio, 426 U.S. 610, 618-619 (1976); see also Salinas v Texas, 570 U.S. _, n 3, 133 S. Ct. 2174, 186 L.Ed.2d 376 (2013) (Alito, J., plurality opinion). The New York Constitution's Due Process Clause (article 1, § 6) affords the accused no less, and possibly more, protection than its federal counterpart. See e.g. People v Isaacson, 44 NY2d 511, 519-520 (1978), rearg denied, 45 NY2d 776. Accordingly, impeachment use of a defendant's post-Miranda exercise of his right to remain silent also violates the state Due Process Clause. 31 Use against Appellant of his post-Miranda exercise of his right to remain silent as to the crimes violated these rules of law, and was fundamentally unreasonable and unfair. As explained in People v Conyers, 52 NY2d 454, 458-459, supra, for several reasons, even an innocent person who has not received Miranda warnings may choose not to talk to the police, including: an awareness that he is not obligated to speak, and that what he says may be used against him; the belief that efforts to exonerate himself would be futile; and his mistrust of law enforcement personnel. Accordingly, the probative value of such silence is minimal. Id. at 458-459. Use against a defendant of his post-Miranda silence, as occurred here, is especially unfair. The police told Appellant that he had the right to remain silent and that anything he said could be used against him. Implicitly, they promised that if he exercised his right to remain silent, his silence would not be used against him. See Doyle v Ohio, 426 U.S. 610, 618-619, supra. To then use that silence against him, as the prosecutor did by cross-examining him about it, and by his summation argument concerning it, was "'fundamentally unfair.'" People v Tucker, 87 AD3d 1277, 1077-1078 (2nd Dept. 2011), quoting People v Spinelli, 214 AD2d 135, 139 (2nd Dept. 1995); see also Brecht v Abrahamson, 507 U.S. 619, 628 (1993); Doyle v Ohio, 426 U.S. 610, 618-619, supra. Indeed, as noted above, this use of his post-Miranda silence against Appellant violated his federal and state right to due process of law. See Doyle v Ohio at 619 (addressing 14th Amendment right to due process of law). Appellant's assertion of an EED defense did not justify or excuse this use of his post- Miranda silence. In Wainwright v Greenfield, 474 US 284 (1986), the Supreme Court held it reversible error, violating the 14th Amendment's Due Process Clause, to use against a defendant his post-arrest, post-Miranda silence to overcome his insanity defense. The court rejected an attempt to distinguish Doyle v Ohio, 426 US. 610, supra: 32 The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony. It is equally unfair to breach that promise by using silence to overcome a defendant's plea of insanity. In both situations, the State gives warnings to protect constitutional rights and implicitly promises that any exercise of those rights will not be penalized. In both situations, the State then seeks to make use of the defendant's exercise of those rights in obtaining his conviction. The implicit promise, the breach, and the consequent penalty are identical in both situations. Wainwright, 474 U.S. at 292. Also prejudicial errors were the prosecutor's comments in his summation on Appellant's failure to go to the police after the crimes and to explain to them his EED defense, and on Appellant's failure to tell the police of that defense on February 5 when taken into custody. As discussed above, Appellant had no obligation to go to the police to reveal his defense before his arrest or to tell the police of the defense after his arrest and receipt of Miranda warnings. See Wainright, supra; People v Conyers, 52 NY2d 454, 458-459, supra; People v Pressley, 93 AD2d 665, 669-670, supra. The prosecutor's comments on the testimony as to Appellant's exercise of his right to remain silent exacerbated its prejudicial effect. Though Appellant did not preserve this prosecutorial error, the summation comments are relevant to an assessment of the prejudice caused by the error counsel did preserve, namely, the prosecutor's cross-examination of Appellant about his post-Miranda silence. These summation comments highlighted that silence, increasing the likelihood that it affected the verdict. Though defense counsel did not specify the bases for his objection to the prosecutor's cross-examination of Appellant about his post-Miranda silence (A320-321), those bases, discussed above, were so well known and obvious that no specification was required to preserve this issue. See People v Williams, 5 NY3d 732, 736 (2005)(R.S. Smith, concurring); People v Vidal, 26 NY2d 249, 254 (1970). Indeed, for the reasons discussed in Point II, below, no objection at all was necessary to preserve this issue. 33 2. Remedy As a constitutional violation, the improper cross-examination of Appellant as to his post- Miranda exercise of his right to remain silent requires reversal, unless the evidence against the EED defense was overwhelming, and unless there is no "reasonable possibility" that the error affected the verdict." See People v Crimmins, 36 NY2d 230,237 (1975). Though it agreed with Appellant that his constitutional rights were violated by the cross-examination about his exercise of his right to remain silent, the Appellate Division majority concluded that the evidence against the EED defense was overwhelming, and thus that the error was harmless (A685-694). In reaching this conclusion, the majority failed to correctly apply this court's precedents concerning the EED defense. Analysis begins with the statute defining the defense. Penal Law §125.27(2)(a) provides that it is an affirmative defense to the charge ofmurder in the first degree that "the defendant acted under the influence of an extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant perceived them to be." The EED defense, therefore, has two elements: that the defendant acted under the influence of an extreme emotional disturbance; and that the disturbance was a "reasonable" or "understandable" response to the circumstances perceived by the defendant, deserving of a measure of mercy, even ifhis perceptions were irrational. 11 See People v Casassa, 49 NY2d 668, 10 Of course, the ultimate disputed issue in this case was whether Appellant was guilty of murder in the first degree or, rather, manslaughter in the first degree, based on the EED defense. 11 It appears that the Appellate Division majority based its conclusion that the evidence against the defense was overwhelming primarily, if not entirely, on its perception that the evidence as to the first element was inadequate (A688-694). The court did not state that it found the evidence against the second element overwhelming. 34 678-680, supra. The defendant must prove the defense by a preponderance of the evidence. See People v Maher, 89 NY2d 456, 463 (1997); Penal Law § 125.27(2)(a). A finding that the defendant has established this defense is not equivalent to a finding that the defendant is not guilty. Rather, it reduces the crime of conviction from murder (whether first or second degree) to manslaughter in the first degree, based essentially on the rationale that, if the defendant is under the influence of an EED that the jury finds was a reasonable or understandable response to the circumstances as he perceived them, his culpability is less than that for murder. See People v McKenzie, 19 NY3d 463, 469 (2012); People v Liebman, 179 AD2d 245, 254 (1st Dept. 1992), app dismissed 81 NY2d 834; Penal Law 125.25(1)(a), 125.27(2)(a). Thus, EED is a mitigating, rather than an exculpating, defense. See People v Harris, 95 NY2d 316, 319 (2000). While evidence that a defendant seemed to act calmly shortly before the killing would not strengthen the EED defense, it would not necessarily be inconsistent with it. This follows from People v Patterson, 39 NY2d 288 (1976), affd 432 U.S. 197, and People v Casassa, 49 NY2d 668, supra, which explored the differences between the EED defense and its predecessor defense, known as "heat of passion." In Patterson, this court wrote: The opportunity opened for mitigation [of murder to manslaughter under the EED defense] differs significantly from the traditional heat of passion defense. Traditionally, an action taken under the heat of passion meant that the defendant had been provoked to the point that his "hot blood" prevented him from reflecting upon his actions. (See, e.g., People v Ferraro, 161 NY 365, 375.) Furthermore, the action had to be immediate, for if there was time for "cooling off', there could be no heat of passion. (See, e.g., People v Fiorentino, 197 NY560, 563.) An action influenced by an extreme emotional disturbance is not one that is necessarily so spontaneously undertaken. Rather, it may be that a significant mental trauma has affected a defendant's mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore. 39 NY2d at 303 (some citations omitted)(emphasis added). 35 See also Casassa, 49 NY2d at 675-676, supra. Expanding on the distinctions between the old heat of passion defense and the new EED defense, the Patterson court wrote: This change [from "heat of passion" to "extreme emotional disturbance"] was designed to avoid limiting mitigation to the situation where a defendant, provoked, acts under the influence of some sudden and uncontrollable emotion excited by the final culmination of misfortunes. The new formulation does not impose so arbitrary a limit on the nature of circumstances that might justify a mitigation. 39 NY2d at 301 (citations and internal quotation marks omitted) (emphasis added). Thus, a defendant could be acting under an EED in killing though his conduct was not spontaneous, but planned, and even if he was not acting under the influence of a sudden, unanticipated provocation. Indeed, to preclude the defense in such contexts would be to "impose" the very "arbitrary limit on the nature of circumstances that might justify a mitigation" that the replacement of the heat ofpassion defense with the EED defense was intended to eliminate. 12 Illustrating the distinction between the old and the new defense is People v Casassa itself, where the defendant, waiving ajury, interposed the EED defense. 49 NY2d at 674. The defendant and the victim had dated a few times over 3 to 4 months before the victim broke off their relationship, which the defendant claimed "'devastated him. ,,, Id. at 672. Thereafter, he broke into an apartment below the victim's to eavesdrop on her when she had company. Id. And, armed with a knife, he broke into her apartment when she was out, and lay naked on her bed. Id. He later told police that he carried the knife because he was going to kill either the victim or himself. Id. Finally, the defendant came to the victim's apartment bearing gifts - and a steak knife. When the victim rejected the proffered gifts, he slew her with the knife, and even 12 Quoting People v Harris, 95 NY2d 316, 319, supra, the majority below stated that the "subjective element is 'generally associated with a loss of self-control'" (A687). While this may be true, as an empirical matter, it should not be understood that a loss of self-control, as in the heat of passion defense, is a necessary element of the EED defense. Plainly, Patterson and Casassa, discussed further below, teach that it is not. 36 "submerged [her] in a bathtub to" ensure her demise. Id. The next day, he purported to cooperate with the police, while denying involvement in the killing. Id. at 672-673. He voluntarily accompanied the police to the station that day, where, after hours of interrogation, he admitted the killing. Id. at 673. At trial, a defense psychiatrist testified that he acted under an EED. Id. at 674. The People presented a psychiatrist in rebuttal. Id. There was ample reason in Casassa to conclude that the defendant had planned the killing, taking the knife with him to slay the victim if she rejected his gift. Moreover, it is plain that, at least to some extent, the defendant in Casassa was thinking rationally immediately before the killing, as reflected in his taking the gift and the knife with him to the victim's residence, and in his offering the former before using the latter. These circumstances would seemingly have precluded the heat ofpassion defense. Nevertheless, the trial court in Casassa found that the defendant acted under an EED - the first element of the EED defense - though it also concluded that he had not proved that his explanation therefor was reasonable or understandable - the second element - and thus rejected the defense. Id. at 679. Significantly, this court, quoting the above passage from Patterson to the effect that, to satisfy the EED defense, as opposed to the heat ofpassion defense, the killing need not be spontaneous, and that the "mental trauma may have affected a defendant's mind for a substantial period of time," held that the trial court "properly applied" "[t]his distinction between the past and present law of mitigation...." Id. at 676. Accordingly, this court effectively approved the trial court's finding that the defendant acted under an EED. Though the majority below found the weight of evidence here overwhelmingly against the EED defense, the evidence in favor of that defense was, in fact, considerably stronger than in Casassa. Appellant presented substantial evidence that he was suffering from PTSD and major 37 depression following the 2006 work injury (A244-245; 265; 392-397; 453-454), and that he became stressed and paranoid after that incident (A252-253; 265). That he was suffering from PTSD following his 2006 injury was disputed by prosecution psychologist Kirschner (A474; 494-495). The prosecution did not dispute, however, that two physicians in addition to Weker found that Appellant suffers from PTSD (A453-454). Even Kirschner admitted that the possibility that Appellant had PTSD "has to be considered" (A474; 494-495). Moreover, even he conceded that Appellant was suffering from major depression after the 2006 incident (A494- 495). From this evidence, a jury could readily conclude that Appellant was at least more prone to an extreme emotional disturbance after the 2006 injury than before it.I3 In Casassa, by contrast, there is no indication that the defendant suffered from any diagnosed underlying mental disorders, though there was evidence that he had "several personality attributes peculiar to" himself that led him to become emotionally disturbed at the time of the killing. 49 NY2d at 674. Other circumstances of Appellant's life made him especially susceptible to an extreme emotional disturbance at the time of the killings. As of the morning of January 30, he had not showered, eaten or slept in days, apparently because he was working on a sewer problem with his rental properties, which he found "overwhelm[ing] ... " (A275-278). Five families were relying on him to fix the problem, but he had failed to do so (A277). That day, he continued to work on the problem, including renting "a huge piece ofmachinery" (A368-369). As of 9:00 p.m. that day, he was, by his own description, "confused," "lost" and mentally and physically 13 While Kirschner testified that the diagnoses of major depression and PTSD (assuming Appellant had PTSD, of which Kirschner was not convinced) "would not have anything necessarily to do with the condition ofEED," and that those diagnoses are "unrelated ... in this case" (A496-497), he offered no basis for these assertions, which, therefore, are entitled to little, if any, weight. See Hambsch v NY City Trans. Auth., 63 NY2d 723, 725-726 (1984). Indeed, they seem counterintuitive, for it is only reasonable that a jury may consider a defendant's mental health conditions or diagnoses in determining whether or not he acted under an EED and whether his response to the circumstances he perceived was reasonable or understandable, and thus deserving of a measure ofmercy. See generally People v Casassa, 49 NY2d 668, 680, supra. 38 "fried" (A284). Still another stressor, of course, was the fact that, due to the 2006 inmate assault, which left him disabled, he had lost his profession and any hope of meaningful work (A325-326; 415). Appellant's greatest stress on January 30 and 31, however, was that he suspected, without knowing for certain, that his long-time girlfriend was romantically involved with another man (A274; 284-285; 328-329; 344). Appellant had had a sexual encounter with her that morning, and thus would have reason to think she was at least not in a deep romantic relationship with her "new friend't'" (A274-275; 347). That same day, in a phone conversation with Howard, he "sobbed until his stomach hurt" (A509-51 0). Even Kirschner conceded that this "would be indicative of emotion" (A510). Before he got to Carter's on January 31, Appellant only suspected that Howard was there (A504). And, again, based on his sexual encounter with her the prior morning, he had reason to think she did not have an intimate relationship with Carter. Though Appellant was polite to the tenants in Carter's building, one tenant, Light, recalled that he was "agitated" and "a little flustered" (A69; 76). This suggests that, at this time, only minutes before the shootings, he was desperately trying to hold himself together. When Appellant knocked on Carter's door, Howard came to it wearing only a robe (A294). Appellant told Kirschner that, when he saw Howard so clad, he felt "I'm dead, I'm done, there was no reason to live," and that "it was like I was hit by a truck" (A519). Indeed, almost any man in Appellant's situation would find this situation deeply traumatic, as it would graphically convey 14 Though, in his summation, the prosecutor questioned whether this event occurred (A552-554), Howard's daughter, Sarah Howard, testified that her mother told her that on January 30 "she was going over there," apparently meaning going over to see Appellant (A38). Moreover, Appellant's friend Carla Stout testified that Appellant told her that day not to come over because he was expecting a visit from Howard, with whom he expected to have sex (A242-243). The jury was entitled to credit this testimony and to conclude that Appellant and Howard had a sexual encounter January 30. 39 that his long-time girlfriend was intimately involved with another man. Appellant was so upset at this time that he asked to be allowed to sleep in a spot inside the door to be near Howard (A297). Further evidence of Appellant's fraught mental state is that he told Kirschner that, at Carter's, he "was just crying, crying, crying, I'm shaking, I'm crying" (A530-531), and that he then felt like "everything was caving in on" him (A527). Appellant testified that he was crying on and off the whole time he was at Carter's door, and that his "eyes were all foggy from crying ... " (A305- 307). Obviously, this was a manifestation of extreme emotion. Especially important is Howard's statement, at the end of her second conversation with Appellant (after he had briefly left and returned), "[W]hat's the matter with you. You don't get it. What do I have to do, f - - k him right in front ofyou" (A301-302; 349). Appellant, who at trial seemed to understate his feelings, testified that this made him feel "distraught" (A302). He told Kirschner that he "freaked out" (A513). It seems that it was right after this taunting remark that he first fired the gun (A302-306; 350). At this time, he was so upset that, though he cut himself in reaching through the window to open the door, he was not even aware of it (A304- 305). In contrast to the multiple stressors to which Appellant was subjected, in Casassa there is no indication that the defendant suffered from any stressor except unrequited love. Yet, as we have seen, in Casassa this court approved the trial court's finding that the defendant had acted under an EED. Substantial additional trial evidence supported the view that Appellant was suffering from an EED at the time of the killings. His recollection of the actual shooting was not clear (A307-308; 357-362; 364-366), which Weker suggested could itself be consistent with EED (A421-422). Appellant explained that, when he killed the victims, he "was feeling all kinds of 40 things," and "[a]ll kinds of emotions, and then there were spots where there was nothing. There were no emotions" (A372). At that time, Appellant testified, he was not "angry" or "jealous," but "hurt" and "distraught" (A373; 375). Despite this testimony, even Kirschner admitted that, at the time of the killings, Appellant was likely experiencing fear, jealousy, rage, anger and love (A524-525). Appellant told Kirschner that at that time he felt he was "going to die" or was "dead," that he was "distraught," and that he felt "full of lead" (A500-501). Appellant even told Kirschner "that he didn't have the vocabulary to even describe ... what he was feeling" (A529). Further demonstrating Appellant's extreme emotions is that, after the shooting, he brushed Howard's hair, put his gun to his own head, and repeatedly pulled the trigger (A445-448). The jury could reasonably conclude that these feelings and actions reflect a man in the throes of an EED. Critically, Weker, and even Kirschner, did not think Appellant was faking in his statements as to his mental state at and about the time of the killings (A423-424; 427; 510). This means that those statements, some of which are recounted above - e.g., that he "freaked out," that he felt like a "truck had hit him," that "he felt dead," and that he did not have the "vocabulary" to adequately describe his emotions - did not overstate his emotional distress at the time of the killings. Certainly, therefore, the jury could have credited Appellant's account of his emotional disturbance, and concluded that it was extreme. For all these reasons, the evidence that Appellant was experiencing an EED at the time of the crimes was substantial - considerably more so than in Casassa. Thus, that this court approved the trial court's finding that the defendant had acted under an EED there implies that a reasonable factfinder could have reached the same conclusion here. Therefore, as the dissent below found, the evidence against the EED defense was not overwhelming. 41 To understand why the majority below reached the contrary conclusion, this critical paragraph in its decision must be read with Casassa and Patterson in mind: To be sure, the extreme emotional disturbance defense "is significantly broader in scope than the 'heat of passion' doctrine [that] it replaced" (People v Casassa, 49 NY2d at 676; see People v Sepe, 111 AD3d at 86) and, for that reason, the "[a]ction[s] influenced by [such defense] need not be spontaneous" (People v Wells, 101 AD3d 1250, 1252 [2012], Iv denied 20 NY3d 1066 [2013]). "'Rather, it may be that a significant mental trauma has affected a defendant's mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore'" (People v Casassa, 49 NY2d at 676, quoting People v Patterson, 39 NY2d 288, 303 [1976], affd 432 US 197 [1977]; see People v Wells, 101 AD3d at 1252). That said, evidence demonstrating a defendant's "high degree of self-control" (People v Bonilla, 57 AD3d 400, 401 [2008], Iv denied 12 NY3d 814 [2009]; see People v Mohamud, 115 AD3d 1227, 1228 [2014]; People v Moronta, 96 AD3d at 420) or "the planned and deliberate character of the [underlying] attack" (People v Acevedo, 56 AD3d 341, 341 [2008], Iv denied 12 NY3d 813 [2009]; accord People v Moronta, 96 AD3d at 420), as well as any "postcrime conduct ... suggest[ing] ... that [the defendant] was in full command of his [or her] faculties and had consciousness of guilt" (People v Acevedo, 56 AD3d at 341-342; see People v Parra, 58 AD3d 479, 480 [2009], Iv denied 12 NY3d 820 [2009]), is entirely inconsistent with an extreme emotional disturbance defense (A688). In this paragraph, only Appellate Division decisions are cited to support the assertion that certain characteristics of a defendant's conduct - a "high degree of self-control," "the planned and deliberate nature of the underlying attack," and "postcrime conduct suggesting that the defendant was in full command of his faculties and had consciousness of guilt" (some internal bracketing, ellipses, words and citations omitted) - are "entirely inconsistent with an [EED] defense." This omission of decisions of this court can only be because this court has rendered none supporting the majority's position. This court has never held, for example, that planning, or postcrime conduct suggestive of consciousness of guilt, are necessarily inconsistent with the EED defense. To the contrary, it follows from Patterson and Casassa that none of the characteristics the Appellate Division majority identified as "entirely inconsistent with an [EED] defense" is necessarily inconsistent. Though, of course, the jury could properly consider such 42 characteristics in determining whether the EED defense was established, their significance was for the jury to decide, in the context of all the other evidence. Indeed, while the Appellate Division majority expressly acknowledged the Patterson/Casassa rule that the EED defense, in contrast to the superseded "heat of passion" defense, may be established though the criminal conduct is not spontaneous but the product of a long "simmering" "mental trauma," it failed to apply that rule. Instead it "impose[d]" the very "arbitrary limit on the nature of circumstances that might justify a mitigation," Patterson, 39 NY2d at 301, that the EED defense was intended to eliminate. Specifically, the Appellate Division admitted that, if the only evidence pertaining to the EED defense had been the defense psychiatrist and the prosecution psychologist, it would not have found the evidence against the defense overwhelming (A689). It concluded, however, that other evidence - particularly Appellant's repeated calls to the victims; his seeming calm, in some respects, minutes before the shootings; his coming to the victims deliberately and with a weapon; his seeming "executjion]" of the victims; and his flight from the scene - was so inconsistent with EED that the evidence against the defense was overwhelming (A689-694). In large part, then, the majority's view that the evidence against the EED defense was overwhelming was based on its conclusions that the evidence indisputably showed that Appellant was calm around the time of the killings, and that the killings were not spontaneous and unplanned. Neither conclusion is sound. As to the first, there was ample evidence, discussed above at 39-41, of Appellant's extreme emotions just before and at the time of the killings. Plainly, the trial evidence did not overwhelmingly show that Appellant was not then experiencing extreme emotions. 43 Also, ample evidence tended to show that the killings were spontaneous and unplanned, including: Appellant's failure to take steps before or after them to prevent his identification; his leaving multiple voice mail messages for the victims; his waking and speaking to the occupants of the neighboring apartments minutes before the shootings, with no attempt to disguise his appearance (A51-52; 54-55; 57-59; 65-69; 76-77); his long conversations with Howard before the shootings (A295-297; 341); his driving away from Carter's residence, apparently having decided to just go home, before returning (A349-350); that what actually precipitated the killings was Howard's taunting remark (A301-310; 349-350); and that, in the period leading up to January 31, he had been carrying a gun with him, even, for example, to his bank and psychiatrist, for fear of a tenant he had evicted (A279-283; 292; 327-328). Even assuming, however, arguendo, that the majority correctly concluded that the evidence indisputably showed that Appellant appeared calm before the killings, and that the killings were not spontaneous and unplanned, it would not follow that the evidence against the EED defense was overwhelming. As explained above, under Patterson and Casassa, the defense may be established though the homicide is not spontaneous or unplanned, and there is no requirement that the defendant appear to be experiencing an EED before - or, for that matter, even when - he commits the crimes. Here, it is well to recognize that different people react differently to feelings of great stress: some may manifest those feelings by their behavior, facial expressions and conversation; others may maintain a placid exterior, concealing a tempest within. It could well be that Appellant, a veteran and successful prison guard, as which he would often have had to deal with highly stressful situations, was practiced at concealing inner turmoil. Certainly the jury could have so inferred, and thus discounted the significance of evidence which the three Justices of 44 Appellate Division majority found "entirely inconsistent" with the EED defense (A694), such as his apparent calm in speaking with Carter's neighbors.f It is precisely to decide such factual issues that 12 jurors, with their varied backgrounds, experiences, and perspectives, are empaneled. Significantly, the Appellate Division majority recognized that the trial court properly charged the EED defense (A694). A court is not to charge a defense unless there is a reasonable view of the evidence, considered in a light most favorable to the defendant, that supports it. See People v Padgett, 60 NY2d 142, 144-145 (1983); People v Mariano, 101 AD3d 1367, 1368 (3rd Dept. 2012). Accordingly, in approving County Court's decision to charge the EED defense, the majority below was necessarily recognizing that there was a reasonable view of the evidence such that the jury could have found in favor of it. This recognition is at odds with the majority's conclusion that there was no reasonable possibility that the receipt of evidence violating Appellant's right to remain silent and to due process of law, coupled with the prosecutor's emphasis of that evidence in his summation, could have affected the verdict. If, as the majority implicitly concluded, the jury could reasonably have found the EED defense established by a preponderance of the evidence, then it is reasonably possible that receipt of this highly prejudicial evidence "tipped the scales" against the defense. Moreover, if, as the majority implicitly concluded, the jury could reasonably have found the EED defense established by a preponderance of the evidence, then the evidence against that defense must not have been overwhelming, for it is hardly reasonable to find for a defense which the evidence is overwhelmingly against. 15 Notably, however, Light testified that Appellant appeared "a little flustered," and she agreed that he seemed "agitated" (A69). Thus, her testimony arguably bolstered the defense. 45 Two cases in which this court held the evidence of EED insufficient to warrant a charge down from murder to manslaughter, People v Roche, 98 NY2d 70 (2002), and People v White, 79 NY2d 900 (1992), are instructive. In each, the defense presented no psychiatric evidence, and the defendant's position at trial was not that he killed under the influence of an EED, but that he did not kill at all. 16 Here, by contrast, a defense psychiatrist testified to his opinion that Appellant was acting under an EED, and Appellant's trial testimony was that he did kill the victims, but did so while experiencing emotions so powerful that he could hardly describe them. Appellant's detailed testimony as to his emotional disturbance at the time of the killings was corroborated by evidence of his previously diagnosed PTSD and major depression, for which he was under medical care, and by the testimony of both mental health experts that he was not exaggerating or embellishing his mental distress. Not only was the evidence here sufficient to entitle Appellant to the EED charge (which even the Appellate Division majority conceded (A694), it was also more than sufficient to defeat the position that the evidence against that defense was overwhelming. In a case such as this, where a qualified defense psychiatrist has testified that the defendant was indeed acting under an EED for which there was a reasonable explanation or excuse (A432-433), this court has never held that the evidence against the defense was yet "overwhelming," so that a constitutional error relating to the defense could be dismissed as harmless under People v Crimmins, 36 NY2d 230, supra. This case should not be the first in which this court so holds. For all these reasons, violation of Appellant's post-Miranda right to silence, and the corollary violation of his right to due process of law under the state and federal constitutions, were not harmless, and require reversal. 16 In White, the defendant testified to this effect. See White, 79 NY2d at 903-904. In Roche, the defendant did not testify, but his written statement received in evidence was to this effect. See Roche, 98 NY2d at 74. 46 POINT II EVEN ABSENT DEFENSE OBJECTION, THE PROSECUTOR'S ELICITATION OF EVIDENCE OF APPELLANT'S PRETRIAL EXERCISE OF HIS RIGHT TO REMAIN SILENT, AND HIS COMMENTS ON THAT EVIDENCE IN HIS SUMMATION, PRESENT ISSUES OF LAW THAT REQUIRE REVERSAL In Point I, above, Appellant has set forth all the instances in which the prosecutor elicited evidence of Appellant's pretrial (including, but not limited to, post-Miranda) exercises of his right to remain silent, though defense counsel objected only to the instance occurring on Appellant's cross-examination. Even considered in isolation, that instance requires reversal for the reasons in Point I. This court must also consider, however, the other instances in which the prosecutor elicited evidence of Appellant's pretrial exercise of his right to remain silent, for they present issues of law though defense counsel failed to object to them. Further, this court must consider the prosecutor's comments on that evidence in his summation, which also present an issue of law even absent defense objection. An explanation follows. In People v McLucas, 15 NY2d 167, 171 (1965), the court's final charge suggested to the jury that the defendant, who had elected not to testify, had some obligation to testify. Id. at 170- 171. Defense counsel failed to object to this error. Id. at 171-172. The Court of Appeals concluded that the error nevertheless presented an issue of law, for "no exception is necessary to preserve for appellate review a deprivation of a fundamental constitutional right." Id. at 172. In People v Autry, 75 NY2d 836, 839 (1990), this court clarified McLucas by stating, "In the case of a charge error implicating defendant's right against self-incrimination, the exception to the preservation requirement may be invoked only where the language of the charge expressly, or at 47 least unambiguously, conveys to the jury that the defendant should have testified" (citations omitted). In People v Bowen, 65 AD2d 364, 367-368 (1st Dept. 1978), the Appellate Division, applying McLucas, apparently concluded that the defendant's claim that he was deprived ofa fair trial by the prosecutor's cross-examination of him about his failure to make any exculpatory statement at the time of his arrest presented an issue of law, though defense counsel had not objected. In People v Cavallerio, 71 AD2d 338, 343-344 (1st Dept. 1979), the Appellate Division, citing McLucas, held that the trial prosecutor's comment on summation on the defendant's failure to testify presented an error of law that was preserved even in the absence of objection. Collectively, these cases stand for the proposition that no objection is necessary to preserve for review a prosecutor's elicitation of evidence of a defendant's pretrial exercise of his right to remain silent and the prosecutor's summation comments on that evidence, at least where the prosecutor's questioning and summation comments "unambiguously[] convey[] to the jury that" it may infer guilt from that evidence. People v Autry, supra. Here, the prosecutor's repeated elicitation of evidence of Appellant's pretrial silence, as to which no limiting instructions were given, and his comments on that evidence in his summation, would have led a reasonable juror to conclude that he or she was free to infer from that evidence that Appellant's EED defense was concocted, and thus that Appellant was guilty. Accordingly, the issues presented by elicitation of this evidence and the summation comments on it are preserved despite the absence of an objection. 48 For the reasons in Point I, the prosecutor's elicitation of this evidence of Appellant's pretrial exercise of his right to remain silent, and his comments on that evidence in his summation, were plainly errors. The argument in Point I as to why the prosecutor's cross-examination of Appellant about his post-Miranda exercise of his right to remain silent was not harmless error is equally applicable here. In this point, however, the case against a finding of harmless error is even stronger, for the errors include all the instances in which the prosecutor elicited evidence of Appellant's pretrial silence, as well as the prosecutor's comments on that silence in his summation, in which he effectively invited the jury to infer from it that Appellant concocted the EED defense. Because the evidence against the EED defense was not overwhelming, and because there is at least a reasonable possibility that all these errors affected the jury's decision to reject that defense, the errors require reversal. 49 POINT III APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STATE CONSTITUTION AND FEDERAL CONSTITUTION Appellant was denied the effective assistance of counsel under the state and federal constitutions in that counsel: (1) failed to object to improper and prejudicial evidence elicited by the prosecutor as to Appellant's pretrial and post-Miranda silence concerning the EED defense; (2) failed to request limiting instructions as to that evidence; (3) failed to object to the prosecutor's improper summation argument as to that evidence; and (4) failed to provide the defense psychiatrist critical evidence pertaining to the EED defense, thus undermining the credibility of his opinion. Under the New York Constitution's right to the effective assistance of counsel (article I, § 6), "[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirements will have been met ...." People v Baldi, 54 NY2d 137, 147 (1981). "Meaningful representation," in turn, requires counsel whose conduct is "reasonably competent." People v Harris, 99 NY2d 202, 209 (2003); People v Abar, 99 NY2d 406, 409 (2003). This standard includes a prejudice component that "focuses on the fairness of the process as a whole rather than [any] particular impact on the outcome of the case." People v Henry, 95 NY2d 563, 566 (2000); see also People v Hull, 71 AD3d 1336, 1339 (3rd Dept. 2010). Thus, even where the record contains strong evidence of guilt, ineffective assistance of counsel may be established where defense counsel's representation is so deficient as to render the trial unfair. See People v Miller, 63 AD3d 1186, 1188 (3rd Dept. 2009). The federal constitutional standard for ineffective assistance of counsel, premised on the 6th and 14th Amendments, is less favorable to the accused. See People v Turner, 5 NY3d 476, 50 480 (2005). To prevail on a claim under this standard, the defense must show that counsel did not render reasonably competent assistance, and that there is a "reasonable probability" that, but for the ineffectiveness, the outcome of the trial would have been different. Strickland v Washington, 466 US 668, 694 (1984); People v Stultz, 2 NY3d 277, 283 (2004). A. Counsel's failure to object to the prosecutor's elicitation of evidence of Appellant's pretrial silence, his failure to request limiting instructions as to that evidence, and his failure to object to the prosecutor's summation comments on that evidence As explained in Point I, the prosecutor elicited from five witnesses, including Appellant, evidence of his failure, before and after his arrest, to speak out about his mental state at the time of the crimes. As also explained in Point I, this questioning and the resultant testimony were improper and prejudicial, but defense counsel failed to object to them, except that he did object, in vain, to the question put to Appellant on cross-examination about his post-Miranda exercise of his right to remain silent (A320-321). Moreover, counsel failed to request instructions forbidding the jury to use this evidence for any inappropriate purpose (assuming, contrary to Appellant's position, that it had some appropriate purpose). Also, defense counsel failed to object to the prosecutor's summation arguments that the jury could infer that Appellant's EED defense was concocted from the facts: (1) that Appellant did not go to the police right after the crimes and tell them that he killed the victims due to an EED; and (2) that Appellant failed to tell the police of the EED defense after he was taken into custody (A561-563). Reasonably competent defense counsel would have objected to the prosecutor's elicitation of evidence of Appellant's pre-trial and post-Miranda exercise of his right to remain silent: based on the analysis in Point I, their impropriety under the law, and their prejudicial effect, were manifest. See People v McArthur, 101AD3d 752, 754 (2nd Dept. 2012). Further, 51 assuming, arguendo, that the evidence of Appellant's pre-trial exercise of his right to remain silent was admissible for some purpose, competent counsel would have requested appropriate limiting instructions. See People v Greene, 306 AD2d 639, 642 - 643 (3d Dept. 2003); People v Forbes, 203 AD2d 609, 611 (3rd Dept. 1994); People v Fleegle, 295 AD2d 760, 762-763 (3rd Dept. 2002). Finally, competent counsel would have objected to the prosecutor's improper and prejudicial summation remarks effectively urging the jury to infer from Appellant's pre-trial silence as to the EED defense that that defense was concocted. See People v Fisher, 18 NY3d 964, 967 (2012); People v Mehmood, 112 AD3d 850, 855 (2nd Dept. 2013); People v McArthur, 101 AD3d 752, 754, supra. Fundamentally, the only issue in this case was whether Appellant established the EED defense by a preponderance of the evidence. For the reasons discussed in Point I, the evidence against the defense was not overwhelming. Thus, the evidence of Appellant's exercise of his constitutional right to remain silent, before and at the time of his arrest, about his state of mind at the time of the crimes, coupled with the prosecutor's summation arguments about the same, could very well have influenced the jury to reject the defense. Accordingly, there is at least a reasonable probability that counsel's failure to object to this evidence and the summation arguments about it affected the verdict. This establishes ineffective assistance of counsel under the Strickland standard. Since, as noted above, the federal constitutional standard is less favorable to the defense than the state "meaningful representation" standard, it follows that counsel was ineffective under the latter standard also. In any case, these multiple errors by defense counsel, which had the effect ofpermitting such prejudicial evidence to be received, and prejudicial arguments to be made, here, where the evidence was far from overwhelming, deprived Appellant of a fair trial 52 and, therefore, of meaningful representation. See People v Arnold, 85 AD3d 1330, 1332-1333 (3rd Dept. 2011); People v Miller, 63 AD3d 1186, 1186-1187, supra; People v Alford, 33 AD3d 1014, 1014-1015 (2nd Dept. 2006); People v Lindo, 167 AD2d 558, 559 (2nd Dept. 1990); compare People v Robot, 84 NY2d 1021, 1022-1024 (1995) (defendant not deprived of effective assistance of counsel where counsel erred in failing to familiarize himself with a document, but the error did not prejudice defendant's right to a fair trial). B. Defense counsel's failure to provide the defense psychiatric expert with the evidence he needed to offer a well-founded opinion as to the EED defense Defense counsel also erred in failing to provide the defense psychiatric expert, Dr. Weker, with the items he needed to review to offer an informed opinion as to the EED defense. To fully understand this, we must review the history of this case as it relates to that defense. History At Appellant's arraignment on the indictment, on April 2, 2010, the prosecutor gave his then attorney, William Meconi, CDs, presumably including recordings of Appellant's phone messages to the victims, and of the police negotiations with Appellant at the Del Motel (A27- 28). By letter of April 12, 2010, the prosecutor gave the defense the recording ofRoward's 911 call (A22). On November 19, 2010, attorney John Carney was substituted for Meconi (A23-24). Carney filed a notice of psychiatric defense December 8, 2010 giving notice of Appellant's intention to present psychiatric evidence as to the defense of not responsible by reason of mental disease or defect and/or as to the EED defense (A13-14; 25). On January 31, 2011, a May 4, 2011 trial date was set (A14). On February 10, prosecution psychologist Kirschner interviewed Appellant (A463). 53 At a hearing of April 4, almost four months after he filed the notice of psychiatric defense, Carney explained that he was trying to find a psychiatrist to testify, that Appellant was indigent, and that the defense psychiatrist would need to be court-appointed (A596-600). County Court responded: I mean we're sitting here at the beginning of April, and this trial is scheduled to begin the beginning of May. My experience has been that even a psychiatrist on board today would not likely generate what's needed to be generated for the beginning of a trial in the beginning of May (A606). The prosecutor noted that Meconi had been planning to use Dr. Gitlin, Appellant's treating psychiatrist (A271-272; 605), but Carney explained that Gitlin would not be appropriate because he did not even know what EED was (A607). Also at the April 4 appearance, County Court explained that it did not have enough information to decide whether to approve payment ofpublic funds for a defense psychiatrist, and suggested that defense counsel prepare a written application (A607-610). And, at that appearance, defense counsel never stated or suggested that he lacked any recordings relevant to the case, except possibly a video recording (A602; 611). By motion dated April 17, 2011 (almost two week after the April 4 appearance) and received by County Court April 20, 2011, defense counsel requested appointment of a psychiatrist who could testify on the EED defense (A680-682). In this application, as in the April 4 appearance, defense counsel did not suggest that he lacked any recording relevant to this case. By decision and order dated April 26, 2011, County Court denied the motion on several grounds (AI3-19). As pertinent here, the court pointed out that, "[a]s a result of the statements made by defense counsel on April 4, 2011, it appears that defense counsel only recently has begun in earnest to seek someone who will opine that the defendant suffered from EED. There is no explanation or offer made in this application as to when the effort was begun to explore the 54 psychiatric defense ... " (A15). The court also observed, "It appears that counsel does not have even a preliminary opinion as to the EED defense from anyone and it is now 14 days before the trial is scheduled to begin..." (A16). Finally, the court noted, "Counsel, by his own admission, is an experienced criminal lawyer and as such should have some idea of the amount of time and preparation needed by an expert to opine on the defense ofEED" (A18). At trial, the defense expert, Weker, testified that he interviewed Appellant May 3 and May 21, 2011 (A385). Thus, he did not even finish interviewing Appellant until trial, which started May 9, was well underway. Also, Weker admitted at trial that he never reviewed several critical items. First, he did not review the transcript of Appellant's trial testimony, though he acknowledged "it would no doubt be very useful to review" (A450). Further, he did not listen to the recording of the 911 call placed by Howard because, as far as he knew, he was not provided with it (A455). He conceded, though, that "it would be ... quite useful and important" to listen to this call in forming his opinion (A455). Also, he did not listen to the recordings of the many messages Appellant left for the victims; instead, he only read the transcripts (A389). Thus, he admitted, "I have no sense of the quality of voice or of emotion that might have been attached..." (A389-390). In contrast to Weker, Kirschner was a model of preparation. He listened to the recording of Howard's 911 call, as to which he testified: QAny significance in listening to that call as opposed to not listening to it? A Well, certainly this was right around the time of the incident, January so" and January 31st so by listening, I can certainly hear voice inflections, tones, what might have been going on in the background, for example, I could hear in the vague distance apparently Mr. Pavone saying things and then Ms. Howard saying no, I'm not giving you a hug, and so it would be just more than mere words on a paper. And certainly since this is an issue involving emotions, it's extremely important to listen to audio recordings because one cannot capture emotions from a transcript. 55 Q So is it fair to say that an individual who was conducting an investigation or an evaluation would better be able to render a more appropriate opinion if they're actually listening to the 911 call? (A469-470) At this point, defense counsel objected on two grounds, one of which was that the CD containing this recording was not timely provided to him. Overruling the objection, the court directed the jury to disregard it (A469-470). The prosecutor essentially re-asked the question, and this followed: AYes, absolutely especially since I was not there at the time of the incident, and my role is to try and determine what a person was experiencing exactly at that time. If I have ... an audio recording ... it brings the evaluator right to that point in time which is exactly where I need to be. And so I can hear voice inflections whether a person is angry or sad. Again, this cannot be captured on paper (A470-471). Kirschner also explained that he listened to the audio recordings of calls to Howard's phone from Appellant (A471). He opined that, "in light of the fact that I'm asked to evaluate Mr. Pavone's emotions, what he might have been experiencing at that time certainly is very compelling to me to be able to hear what he was saying not only what he was saying but how he was saying it and the tone that might have been behind the words" (A471). He also listened to recordings of Appellant's calls to Carter's phone (A472-473), about which he testified: QWhat significance, if any, did that have on your rendering your final opinion? A Well, that also was pretty significant in the sense that in those messages Mr. Pavone was fairly confrontational and he was challenging Mr. Carter's manhood, and so it was again not only the words but the tone that was behind the words. A major concern in evaluating extreme emotional disturbance is whether someone's thinking is overborne by his emotions. And so certainly by listening to the words and the emotions behind it, one can get a good sense of whether someone is so overwrought by emotions that his ability to reason rationally is lost. And certainly in these messages certainly to Mr. Carter, they were calculated, confrontations as I stated, things such as if you're a real man, you would call me back. And the tone was very important there as well as the words (A473). Later, the prosecutor returned Kirschner to the subject of Appellant's calls to Howard's phone: 56 QAnd is the demeanor in [sic] which was displayed by the defendant in those phone calls leading up to the early morning hours of January 31st consistent with the depositions ofNicole Light and Wendall Davenport? A Yes. QAnd how so? A Well, Mr. Pavone left I would say roughly a dozen messages, maybe more, and each one it was a different tactic that he was employing. At times he would sound broken up, that he please, you got to help me here. Then at other times he would say, you know, you ought to show just a little courtesy, it would be courteous for you to call me, and then he might say call back and say it's your birthday, it's your birthday, how can you do this to me on your birthday.... Then he sounded kind of menacing and threatening, I'm going to come up there, and I don't care what you say or what you do ... I'm going to come up there, and I'm going to find you... (A485-486). At close of evidence, defense counsel argued that the prosecutor should not be able to base any summation argument on Weker's failure to listen to the recordings of Howard's 911 call or the recordings of Appellant's calls to the victims (A532-536). He urged that he did provide Weker with the 911 call recording, but Weker somehow did not realize he had it (A532- 533). Further, he maintained that he did not have Weker listen to Appellant's calls to Howard and Carter because he (defense counsel) received them from the prosecution only after Weker had already prepared his report, and he did not want to delay the trial by delaying Weker's testimony so he could listen to the recordings (A533-534). Responding, the prosecutor observed that he had given all the recordings to Meconi, and also that Carney did not bring to his attention that he lacked any "recordings until the middle of the trial when they were turned over again" (A534). Carney did not disagree, but noted that he did not get the recordings until the day ofWeker's testimony (A534-535). Counsel never explained why he did not sooner request the recordings from the prosecutor if he was unable to 57 get them from Meconi. County Court declined to preclude the prosecutor from referencing Weker's failure to listen to the recordings in his summation (A535-537). In his summation, defense counsel stated: Our doctor tells you [Appellant] becomes increasingly emotional practically crying on the phone. He's obsessed, he's unquestionably suffering from this emotional condition, and their doctor says no, at times he's laughing, and I listened, you know, to the CD and the prosecutor made an issue of it. That CD came to me at the last minute. I was not going to have this doctor go back to Vermont take a week off and take one day to testify (A551). Here, the prosecutor objected, but defense counsel continued: And I made the decision that the transcript was enough, and I was not going to send you home for a week. The transcript was enough. Blame me. Nobody else. It was my decision not to delay this trial for a week. If the DA wants to make a big deal it was before the crime, it's obvious from the transcript you don't need to hear it on the CD. I didn't get time to send it. It's not my fault (A551). In his summation, the prosecutor played 18 recorded phone messages from Appellant to the victims (A554-559), as well as Howard's 911 call (A560). Moreover, he hammered home the point that Kirschner, but not Weker, had actually listened to these critical recordings: Weker said he relied on the defendant's account of the 911 tape that he didn't listen to and the voice mails that he never listened to. Dr. Kirschner testified that ... he listened to all the recordings. He said all those recordings were very significant in his ability to make a final opinion as to whether the defendant was suffering from extreme emotional disturbance on January 31st (A563-564). Analysis Again, the fundamental issue at trial was whether at the time of the crimes Appellant was suffering from an EED for which there was a reasonable explanation. See People v Casassa, 49 NY2d 668, 678-679, supra. The recordings of his messages to the victims within a few hours of the killings, revealing his tone, volume, cadence, and inflection, could give insight into his mental state when he killed. Also, the recording of Howard's 911 call, placed at about 3:50 a.m. (A41-43), just minutes before the homicides, on which Appellant can perhaps be heard in the 58 background'", would give insight into the circumstances at the time of the homicides. Predictably, in his testimony, Kirschner relied on those recordings, and explained their importance in formulating his own opinion. By contrast, while Weker candidly admitted that "it would be ... quite useful and important" to listen to those recordings in formulating his own opinion (A455), he did not listen to them, because defense counsel did not provide them (though, as noted, defense counsel maintained that he did provide the 911 recording). Though Carney argued at trial that he was not to blame for the failure to get the recordings to his expert because they were not timely provided to him, it was undisputed that they were provided to Meconi before Carney entered the case in November 2010. Moreover, the record leaves no doubt that Carney did not have the recordings of Appellant's calls to Howard and Carter even as of the middle of the trial, and that he only then apprised the prosecutor that he lacked them (A534). This means not only that Weker had not then listened to the recordings, but also that Carney himself had not listened to them before trial. Indeed, presumably the first time Carney heard them was when the prosecution played them at trial. Given the obvious significance of these recordings to an evaluation of Appellant's mental state at the time of the killings - which, again, was one of the two elements of the EED defense - counsel's failure to listen to them long before trial is inexplicable, and inexcusable. Also inexplicable, and undoubtedly prejudicial to Appellant, was counsel's failure to provide Weker with the recordings of Appellant's calls to the victims. That Weker and Kirschner - and, for that matter, any other mental health expert - would consider these calls significant to their evaluation of Appellant's mental state at the time of the killings was obvious. Accordingly, it was imperative that defense counsel ensure that Weker review these recordings, both so that Weker's opinion would be based on all significant information, and so that the prosecution 17 Kirschner suggested that he could hear Appellant "in the vague distance ... " (A469). 59 would not be able to impugn his opinion, and bolster Kirschner's, based on Weker's failure to listen to them. Further, defense counsel should have ensured that Weker listened to Howard's 911 call. He could have done this by means of a letter or email to Weker specifically identifying the documents and other evidentiary items he was providing to him. To simply send to Weker the myriad items he needed to review, without identifying them, would create a significant risk that he would overlook one or more of them, as he apparently did. Moreover, long before trial, defense counsel should have reviewed Weker's report and discussed with him his evaluation of Appellant, so that he would know whether Weker had reviewed all the items he needed to review to offer a well-founded opinion. Of course, counsel's inexplicable delay in retaining an expert made this impossible. Therefore, in the alternative, defense counsel should at least have requested an adjournment to enable Weker to listen to the 911 recording and the phone messages of Appellant to Howard and Carter. Though the court might not have granted the request, it was worth making. No strategic purpose in Appellant's best interest was served by not making it. Notwithstanding his arguments to the contrary, Carney was responsible for his expert's ill-preparedness. Though Carney was retained in November 2010, and though, plainly, the only defense in this case would be insanity or, more likely, EED, he had not retained an expert even as of April 17, 2011, when he applied to the court for appointment of a psychiatric expert at public expense. The possible difficulty of finding a mental health expert able to take on this case was a compelling reason for defense counsel to have promptly begun his search for such an expert shortly after taking on this case in December 2010. Had he done so, he would not have been in the position of getting his expert's report long after trial had started, when it could be 60 difficult or impossible to provide the expert with additional materials he would need to review to offer a well-founded opinion. Defense counsel also erred in failing to have Weker review Appellant's trial testimony (A450). Weker testified that "it would no doubt be very useful to review" that testimony, but, not having reviewed it, he had to admit that he did not know whether it would assist him (A450). By contrast, Kirschner did review that testimony, and was able to explain to the jury how, in his opinion, it strengthened the conclusion that Appellant was not experiencing an EED at the time of the killings (A476-477). Here, too, then, the prosecutor used Weker's failure to review important information to undermine Weker's conclusion as to the EED defense, and to support Kirschner's. Thus, defense counsel made a series of substantial errors: he delayed finding a mental health expert to testify to the EED defense, so that the expert he eventually did retain had not even finished interviewing Appellant until the trial was already more than a week underway; he himself failed to review, or even obtain, the critical phone message recordings and 911 recording before trial; he failed to provide Weker with the items he needed to review to develop a well- founded opinion on the EED defense, including those recordings and the recording of Ellis's negotiations with Appellant; even when he did realize, or should have realized, his error in failing to provide these items to Weker, he failed to request a delay in the trial to enable Weker to review these recordings; and, finally, he failed to provide Weker with Appellant's trial testimony. Due to these errors, the prosecutor was able to seriously undermine the credibility of Weker and thus of the EED defense, while at the same time bolstering the credibility of Kirschner, who had done all that Weker failed to do. 61 The prejudice to Appellant from these errors was grave. Particularly prejudicial was Weker's admission that, because he did not listen to the recordings of Appellant's calls to Howard and Carter, he had "no sense of the quality of voice or of emotion that might have been attached... " (A389-390). This directly implicated the defense, which was, of course, predicated on Appellant's emotion. Also prejudicial was Weker's admission that review of Appellant's trial testimony would have been "very useful ... " (A450). In his summation, the prosecutor exacerbated the prejudicial effects of counsel's errors both by his observation that Weker had not reviewed this critical evidence but Kirschner had, and by his own reliance on the recordings, which he played in his summation (A554-560). The People urged before the Appellate Division that Carney may have had a strategic reason for not providing the recorded phone calls to Weker, namely, that they might have undermined Weker's conclusion that Appellant was acting under an EED (Respondent's Appellate Division Brief at 40-41). Nothing in the record supports this argument. Carney stated in his summation, "I listened to the CD.... I made the decision that the transcript was enough .... It was my decision not to delay the trial for a week" (A683). This suggests only that he was concerned with not delaying the trial and was trying to minimize the prejudicial effect of his blunder in not providing the recordings to Weker. It does not suggest that he was concerned that the recordings could make Weker reconsider his opinion as to the EED defense. It is important to appreciate also that Carney apparently did not have the recordings even after trial had started, though it was undisputed that the prosecution had given them to Appellant's first attorney, Meconi, in April 2010. Indeed, Carney did not even request the recordings from the prosecutor "until the middle of the trial ... " (A534). Further, and contrary to the prosecution's position as to a possible strategic reason for not supplying the recordings to 62 Weker, defense counsel told the court on June 7, 2011, just before summations, that he did not have Weker listen to the recordings of Appellant's calls to the victims because he (Carney) received them from the prosecution only after Weker had already prepared his report, and he did not want to delay the trial by delaying Weker's testimony so he could listen to the recordings (A533-534). Thus, he did not suggest that he did not give Weker the recordings because he feared they would make Weker reconsider his position that Appellant was acting under an EED for which there was a reasonable explanation. In sum, Carney did not give the recordings to Weker because he did not have them, and he did not have them because he had apparently failed to obtain them from Meconi or the prosecution. Moreover, the sequence of these events contradicts the People's theory of a possible strategic reason for not supplying the recordings to Weker. Since Carney apparently had not heard the recordings until the middle of trial, his failure to give them to Weker upon retaining him could not be the result of an informed decision based on having himself heard the recordings. It was the result, rather, of gross negligence in failing to obtain this critical evidence. Any concern Carney may have had about delaying the trial would not amount to a strategic reason for his course of action. Again, the only reason any delay in the trial might have been necessary is that he failed to timely retain an expert, and, even when he did retain him, apparently in April 2011, he failed to provide him with the recordings. He failed to provide him with the recordings because he did not have them, though the prosecution had provided them to Meconi in about April 2010. Thus, the dilemma Carney faced - having Weker testify without having heard and analyzed the recordings, or asking for a delay - was of his own making. This was not strategy, but ineffective assistance of counsel. 63 Even one error, if serious enough to deprive a defendant of a fair trial, may render counsel constitutionally ineffective. See People Turner, 5 NY3d 476, 478, supra. Here, counsel made not merely one error as to the retaining and handling of the defense expert, but a series of errors, which greatly prejudiced Appellant in this relatively close case, where there was ample evidence to support the EED defense. Accordingly, there is a "reasonable probability" that, but for counsel's errors, the outcome of the trial would have been different, and a new trial is therefore required based on the federal constitutional right to counsel. See Strickland v Washington, 466 US 668, 694, supra; People v Stultz, 2 NY3d 277, 283, supra. Since the federal constitutional standard for ineffective assistance of counsel is stricter than the state constitutional standard, see People v Turner, 5 NY3d 476, 480, supra, it must be concluded that these errors rendered defense counsel ineffective under the state constitution also. In any event, these errors rendered the trial fundamentally unfair by giving the prosecution expert a profound advantage over the defense expert, and may very well have affected the trial's outcome. Accordingly, counsel's representation was much less than meaningful, and thus did not satisfy the minimum requirements for effective assistance of counsel under the state constitution. See People v Baldi, 54 NY2d at 147, supra; People v Miller, 63 AD2d 1186, 1186-1187, supra; People v Chapman, 54 AD3d 507, 511 (3rd Dept. 2008). C. The Appellate Division's analysis of the ineffective assistance issue The dissenter at the Appellate Division did not address the ineffective assistance issue; the majority addressed it only in a long footnote (A686). Even there, however, the majority addressed only one aspect of it, namely, the failure to object to the prosecutor's elicitation of evidence of Appellant's exercise of his pre-trial right to silence. As to that aspect, the majority implied that the failure to object to the prosecutor's questioning of the police witnesses about 64 Appellant's post-Miranda silence was strategic. Id. The majority did not identify the strategy it had in mind, but suggested that it concerned counsel's effort to elicit evidence of Appellant's mental state at the time of his apprehension: [D]efense counsel established through hiscross-examination of ... Weightman that defendant was upset and seemingly suicidal following his apprehension and, further, that Weightman 'had no reason to suspect that [defendant] was faking' his emotional state at that time. Through this same witness, defense counsel also was able to imply that defendant's failure to state that 'he snapped or lost it' at the time of the killings stemmed from the fact that defendant admittedly was not questioned regarding the underlying crimes after he was given his Miranda warnings and, hence, was not afforded an opportunity to explain his emotional state.Id. The majority overlooked the critical point, however, that defense counsel could have delved into Appellant's emotional state at the time of his apprehension without eliciting any evidence as to whether he did or did not then address his involvement in the killings; the first subject did not necessarily open the door to the second. And, of course, counsel should not have had to cross- examine Weightman about his failure to say "he snapped or lost it"; the prosecutor should never have broached that subject on direct, and, when he did, defense counsel should have immediately objected, and possibly asked for a curative instruction. Thus, there was no possible strategic reason for counsel's failure to object to the prosecutor's elicitation of evidence of Appellant's exercise of his 5th Amendment right to remain silent on his case-in-chief. Indeed, that he had any such strategic reason is belied by the fact that he did object to the prosecutor's cross-examination of Appellant about his exercise of his right to remain silent (A320-321). D. Cumulative effect of errors As noted, even one error, if serious enough to deprive a defendant of a fair trial, may render counsel constitutionally ineffective. See People Turner, 5 NY3d 476, 478, supra. If, however, defense counsel's errors as to the defense expert, alone, or ifhis errors as to the right to 65 remain silent, alone, are not sufficient unto themselves to render counsel ineffective, their cumulative effect surely is. See People v Oathout, 21 NY2d 127, 132 (2013); People v Arnold, 85 AD3d 1330, 1334-1335, supra; People v Miller, 63 AD3d 1186, 1186-1187, supra; People v Clarke, 66 AD3d 694, 698 (2nd Dept. 2009); People v Chapman, 54 AD3d 507, 511, supra. For this reason, reversal and a new trial are necessary. CONCLUSION For the foregoing reasons, the Appellate Division order must be reversed, the judgment vacated, and a new trial conducted. DATE: November 24, 2014 E40~~SQ. Attorney for Appellant Office and P.O. Address 2 Wedge Road Delmar, NY 12054 PH: (518) 439-7633 66