The People, Respondent,v.Victor Gonzalez, Appellant.BriefN.Y.January 9, 2014To Be Argued By: MATHEW S. MILLER Time Requested: 20 Minutes Bronx County Indictment No. 1975/06 APL-2013-00081 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, —against— VICTOR GONZALEZ, Defendant-Appellant. BRIEF OF DEFENDANT-APPELLANT MATHEW S. MILLER, ESQ. DAVIS POLK & WARDWELL LLP 450 Lexington Avenue New York, New York 10017 Telephone: (212) 450-4531 Facsimile: (212) 701-5531 V. M ARIKA MEIS, ESQ. THE BRONX DEFENDERS 360 East 161st Street Bronx, New York 10451-4338 Telephone: (718) 838-7846 Facsimile: (718) 838-7853 Attorneys for Defendant-AppellantJune 14, 2013 d i TABLE OF CONTENTS PAGE TABLE OF CASES AND AUTHORITIES .......................................................... iii PRELIMINARY STATEMENT ............................................................................. 1 QUESTIONS PRESENTED .................................................................................... 2 JURISDICTION AND REVIEWABILITY ............................................................ 3 INTRODUCTION ................................................................................................... 3 SUMMARY OF ARGUMENT ............................................................................... 4 STATEMENT OF FACTS ...................................................................................... 7 Background .................................................................................................... 7 Notice of Intent to Proffer Psychiatric Evidence and Trial ........................... 8 Motion to Set Aside the Verdict and Sentence ............................................ 10 Appellate Division Proceedings .................................................................. 11 Court of Appeals Proceedings ..................................................................... 13 ARGUMENT ......................................................................................................... 14 I. THE TRIAL COURT MISAPPLIED C.P.L. § 250.10 BY CONSTRUING APPELLANT’S REQUEST FOR AN EXTREME EMOTIONAL DISTURBANCE JURY CHARGE BASED SOLELY ON EVIDENCE INTRODUCED BY THE PEOPLE AS “EVIDENCE . . . TO BE OFFERED BY THE DEFENDANT” AND STATUTORY “NOTICE,” ENTITLING THE PEOPLE TO REOPEN THEIR CASE AND PRESENT PSYCHIATRIC EVIDENCE TO REBUT THEIR OWN EVIDENCE. ............................... 14 A. Appellant Was Entitled To The EED Jury Charge ........................... 14 ii B. Criminal Procedure Law § 250.10 Is Not Triggered By A Request To Charge On EED And Does Not Authorize Conditioning An Otherwise Warranted Jury Instruction On The People Reopening Their Case To Introduce Additional Evidence Rebutting Evidence They Had Introduced ........................ 16 1. Requesting An EED Jury Instruction Is Not “[E]vidence . . . [O]ffered [B]y [T]he [D]efendant” Under C.P.L. § 250.10 And Does Not Trigger The Statute. ................ 17 2. Neither C.P.L. § 250.10 Nor “Fairness” Authorize The People To Introduce New Evidence To Rebut Their Own Evidence. ................................................................................... 20 II. THE TRIAL COURT VIOLATED APPELLANT’S FIFTH AMENDMENT RIGHT BY CONDITIONING ALLOWANCE OF THE EED JURY CHARGE ON THE INTRODUCTION OF APPELLANT’S FIFTH-AMENDMENT-PROTECTED STATEMENTS AGAINST HIM. ............................................................... 24 A. Appellant’s Statements To The People’s Psychiatrist Were Protected By The Fifth Amendment ................................................. 24 B. Appellant Never Waived His Fifth Amendment Right ..................... 26 CONCLUSION ...................................................................................................... 31 iii TABLE OF CASES AND AUTHORITIES PAGE CASES Battie v. Estelle, 655 F.2d 692 (5th Cir. 1981) ......................................................................... 26 Brooks v. Tennessee, 406 U.S. 605 (1972)....................................................................................... 26 Brown v. Butler, 876 F.2d 427 (5th Cir. 1989) ................................................................... 27, 29 Buchanan v. Kentucky, 483 U.S. 402 (1987)................................................................................. 25, 29 Estelle v. Smith, 451 U.S. 454 (1981)....................................................................................... 25 Hittson v. Humphrey, No. 01 Civ. 384, 2012 WL 5497808 (M.D. Ga. Nov. 13, 2012) .............................................. 27 Mitchell v. United States, 526 U.S. 314 (1999)....................................................................................... 29 New Jersey v. Portash, 440 U.S. 450 (1979) ..................................................................................... 25 People v. Almonor, 93 N.Y.2d 571 (1999) .................................................................................... 18 People v. Bagby, 65 N.Y.2d 410 (1985) .................................................................................... 29 iv People v. Berk, 88 N.Y.2d 257 (1996) ........................................................................ 18, 21-23 People v. Davis, 136 Misc. 2d 1076 (Sup. Ct. N.Y. Co. 1987) .......................................... 20, 22 People v. Diaz, 3 Misc. 3d 686 (Sup. Ct. Kings. Co. 2004) ............................................. 25, 27 People v. Diaz, 15 N.Y.3d 40 (2010) ................................................................................ 18, 28 People v. Gonzalez, 91 A.D.3d 453 (1st Dep’t 2012) .................................................... 4, 12, 13, 26 People v. Gonzalez, 26 Misc. 3d 687 (Sup. Ct. Bronx Co. 2009) ................................. 10-11, 15-16 People v. Harris, 95 N.Y.2d 316 (2000) .................................................................................... 15 People v. Johnson, 225 A.D.2d 464 (1st Dep’t 1996) .................................................................. 23 People v. Khan, 68 N.Y.2d 921 (1986) .................................................................................... 23 People v. Kruglik, 256 A.D.2d 592 (2d Dep’t 1998) ....................................................... 25, 28, 29 People v. McKenzie, 19 N.Y.3d 463 (2012) ............................................................ 14-15, 16, 19, 28 People v. Moye, 66 N.Y.2d 887 (1985) .............................................................................. 15-16 People v. Segal, 54 N.Y.2d 58 (1981) ...................................................................................... 30 v People v. Wenzel, 133 A.D.2d 716 (2d Dep’t 1987) ............................................................. 18, 28 United States v. Hall, 152 F.3d 381 (5th Cir. 1998) ................................................................... 27, 29 United States v. Harding, 219 F.R.D. 62 (S.D.N.Y. 2003) ..................................................................... 28 United States v. Trapnell, 495 F.2d 22 (2d Cir. 1974) ............................................................................ 28 United States v. Wilson, No. 04 Crim. 1016 (NGG), 2012 WL 6962982 (E.D.N.Y. Jun. 22, 2012)................................................ 27 STATUTES C.P.L. § 250.10 ................................................................................................. passim C.P.L. § 260.30(7) .................................................................................................... 24 C.P.L. § 300.10(2) .................................................................................................... 29 P.L. § 125.25(1)(a) ..................................................................................................... 6 OTHER AUTHORITIES BALLENTINE’S LAW DICTIONARY (3d ed. 2010) ...................................................... 18 C.P.L. § 250.10, Preiser Practice Commentary (McKinney’s 2002) ...................... 21 L. 1980, c. 548, § 7; 1980 N.Y. Sess. Laws 944 (McKinney) ................................. 19 1 PRELIMINARY STATEMENT By permission of this Court, granted March 29, 2013, this appeal is taken from an order of the Appellate Division, First Department, entered January 10, 2012, affirming a judgment of the Supreme Court, Bronx County (Cirigliano, J.), rendered May 6, 2010, convicting Defendant-Appellant, after a jury trial, of Murder in the Second Degree and sentencing him to twenty-five years to life in prison. Timely application for leave to appeal was filed and a motion to assign The Bronx Defenders and Davis Polk & Wardwell LLP as co-appellate counsel was filed with this Court with a return date of June 10, 2013, which the Chief Motion Clerk modified to June 17, 2013. Appellant is currently incarcerated. 2 QUESTIONS PRESENTED 1. Did the trial court incorrectly interpret C.P.L. § 250.10 by construing a request for an extreme emotional disturbance jury charge based solely on evidence introduced by the People as “evidence . . . offered by the defendant” and statutory “notice” entitling the People to reopen their case and introduce psychiatric testimony to rebut their own evidence? 2. Did the trial court violate Appellant’s Fifth Amendment right against self- incrimination by conditioning a jury charge to which Appellant was entitled on introduction of Appellant’s statements to the People’s psychiatrist against him? 3 JURISDICTION AND REVIEWABILITY This case presents questions of law, as it involves matters of statutory interpretation and constitutional rights, which were fully litigated below, and are amenable to this Court’s review. The issues were fully preserved and timely appealed. INTRODUCTION During their case-in-chief, the People introduced evidence sufficient to warrant charging the jury on the defense of extreme emotional disturbance (“EED”) under P.L. § 125.25(1)(a). At the close of the People’s case, and based solely on evidence the People had introduced, Appellant asked the court to instruct the jury on the EED defense. Justice Cirigliano agreed that the charge should be given, but erroneously construed the request to charge as “evidence . . . offered by the defendant” and “notice” under C.P.L. § 250.10 and, on that basis, indicated that if he were to give the instruction, the People were entitled to reopen their case to rebut this “evidence” with new evidence of Appellant’s statements to the People’s psychiatrist. Appellant, therefore, withdrew his request to charge the jury on EED in order to avoid the erroneous admission of that evidence and a violation of his Fifth Amendment right. Without hearing the EED instruction, the jury convicted Appellant of Murder in the Second Degree. 4 The Appellate Division, First Department affirmed, concluding that the trial court properly construed defendant’s request for an EED charge as § 250.10 notice, entitling the People to reopen their case and to present psychiatric evidence. People v. Gonzalez, 91 A.D.3d 453, 454 (1st Dep’t 2012). The Appellate Division also found that Appellant’s Fifth Amendment right had not been violated. Id. at 455. Mr. Gonzalez applied for leave to appeal to this Court, which Chief Judge Lippman granted. SUMMARY OF ARGUMENT The trial court incorrectly interpreted C.P.L. § 250.10 by construing a request to charge the jury on EED as “evidence . . . offered by the defendant” and “notice” under the statute. It thereafter ruled that the supposed new “evidence” and “notice” entitled the People to reopen their case and introduce evidence based on Appellant’s statements to the People’s psychiatrist, effectively conditioning the charge, to which it agreed Appellant was entitled, on the admission of additional evidence by the People rebutting the evidence the People had introduced. Neither the plain language of C.P.L. § 250.10, its legislative history, nor the case law supports this construction or entitles the People to reopen their case and rebut their own evidence. Section 250.10 is not implicated by a request for a jury instruction. It governs, and is exclusively triggered by, psychiatric evidence 5 “offered . . . by the defendant.” C.P.L. § 250.10(1). An “offer” of evidence requires an affirmative step by the introducing party to add to the record, either on direct or through cross-examination, neither of which was done here. In short, requesting a jury instruction based on the prosecution’s evidence does not constitute an “offer” of evidence by the defendant and does not trigger C.P.L. § 250.10. Imposing a condition on the charge also violated Appellant’s Fifth Amendment right. The trial court’s allowance of the EED charge came with an unfair and unconstitutional burden on defendant’s right against self-incrimination: The People would be permitted to use Appellant’s Fifth-Amendment-protected statements against him. But the Fifth Amendment precludes admission of Appellant’s statements to a prosecutor’s psychiatrist unless Appellant waives his right by actually introducing his own evidence regarding his mental state. By effectively conditioning the EED charge on the admission into evidence of Appellant’s statements to the People’s psychiatrist, the trial court impermissibly forced Appellant to choose between a warranted jury charge and not having his statements used against him, violating his Fifth Amendment right. These errors were significant and deprived the jury of the opportunity to consider the mitigating EED defense, which would have allowed them to convict 6 Appellant of Manslaughter in the First Degree, instead of Murder in the Second Degree. P.L. § 125.25(1)(a).1 They require reversal. 1 Penal Law § 125.25(1)(a) provides: “A person is guilty of murder in the second degree when: 1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that: (a) The defendant acted under the influence of 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 believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude conviction of, manslaughter in the first degree or any other crime.” 7 STATEMENT OF FACTS Background On May 9, 2006, the Defendant-Appellant, Victor Gonzalez (“Mr. Gonzalez” or “Appellant”), arrived at home at Kelly Street, Bronx, New York, to find his boss, Wilfredo Lebron (“Mr. Lebron”), waiting for him (A. 276, 584).2 Mr. Lebron, who visited the apartment often because he was dating Mr. Gonzalez’s roommate, regularly physically and verbally abused Mr. Gonzalez both at home and at work (A. 584, 587-89, 600-01). Mr. Lebron previously had shown Mr. Gonzalez guns and had threatened to kill Mr. Gonzalez if he said anything about them (A. 600-01). Having had several drinks, Mr. Lebron initiated an argument with Mr. Gonzalez when Mr. Gonzalez arrived home (A. 276-77, 584). Mr. Lebron punched Mr. Gonzalez in the face several times and broke a wooden bookstand over Mr. Gonzalez’s back (A. 585). Mr. Lebron stopped attacking Mr. Gonzalez only after a neighbor heard the commotion and stopped Mr. Lebron (A. 585). Several minutes later, Mr. Gonzalez attempted to reach the bathroom to take a shower and “calm down,” but Mr. Lebron again confronted him (A. 585-86, 591). Fearing for his safety, Mr. Gonzalez lost control (A. 591, 600). He struck Mr. 2 References preceded by “A.” are to pages in the Appendix. 8 Lebron in the head several times with a hammer and stabbed him in the chest, thereby causing Mr. Lebron’s death (A. 160, 277-78, 592-93). Mr. Gonzalez then dismembered Mr. Lebron’s body, placed the body parts in black plastic bags, and distributed the bags to different locations within a four-block radius of Kelly Street (A. 278-80). Upon his arrest, Mr. Gonzalez gave written and videotaped statements describing Mr. Lebron’s ongoing pattern of abuse (see A. 603-04). Mr. Gonzalez told the police that Mr. Lebron was “a guy that whip you and whip you and whip you all day, every day, every day, every day, and don’t let you alone, you know” and that he (Mr. Gonzalez) was “[o]ut of my mind” when he struck Mr. Lebron (A. 587, 591, 600). Notice of Intent to Proffer Psychiatric Evidence and Trial Prior to trial, Mr. Gonzalez served Notice of Intent to Proffer Psychiatric Evidence pursuant to C.P.L. § 250.10 (A. 358, 387). As a result, Mr. Gonzalez was examined by both his and the People’s psychiatrists, and psychiatric reports were exchanged between the parties (A. 358, 387-88). Subsequent to this examination but prior to trial, Mr. Gonzalez informed the People that he would not offer any psychiatric testimony at trial (A. 358-87). At trial, the People introduced Mr. Gonzalez’s written and videotaped statements during their case-in-chief (A. 146, 274-81). Mr. Gonzalez did not 9 cross-examine any of the People’s witnesses regarding his mental state, or present any evidence or call any witnesses on this issue. At the charging conference, Mr. Gonzalez requested an EED instruction based solely on evidence presented by the People (A. 346). The trial court agreed that Mr. Gonzalez was entitled to an EED charge because the evidence presented during the People’s case-in-chief—primarily the videotaped statement— established the elements of an EED defense (A. 346-50, 355-57). The People then requested that they be allowed to call their psychiatrist as a rebuttal witness, even though Mr. Gonzalez had not offered any psychiatric evidence nor cross-examined any of the People’s witnesses regarding his mental state (A. 357). Mr. Gonzalez objected to this request and argued that the People cannot rebut their own evidence, that § 250.10 does not apply where a defendant has offered no evidence, and that allowing the People to introduce such psychiatric testimony in these circumstances would violate Mr. Gonzalez’s Fifth Amendment right against self-incrimination (A. 359-75, 380-402). After argument on these issues, the trial court ruled that the People’s psychiatrist could testify, reasoning that “if [Mr. Gonzalez] want[s] the charge of extreme emotional disturbance, I think it is only fair that the district attorney be given an opportunity to call his witness” (A. 366-67; see also A. 399-401). In response to the court’s ruling, Mr. 10 Gonzalez withdrew his request for an EED charge, explicitly stating that the withdrawal was conditioned on the court’s ruling: If your Honor is not inclined and disagrees with me, then we would be withdrawing our application for the EED instruction and proceed forward to summations, but noting on the record our basis for withdrawing the instruction is that your Honor considers that [the People are] allowed to get into statements that our client made regarding his background and things that happened on May 9th of 2006. (A. 386; see also A. 401-02). On April 7, 2009, Mr. Gonzalez was convicted of Murder in the Second Degree pursuant to P.L. § 125.25. People v. Gonzalez, 26 Misc. 3d 687, 688 (Sup. Ct. Bronx Co. 2009). Motion to Set Aside the Verdict and Sentence Following conviction, Mr. Gonzalez moved pursuant to C.P.L. § 330.30(1) to set aside the verdict based on the trial court’s failure to charge on the EED defense that was supported by the evidence. Gonzalez, 26 Misc. 3d at 689. Mr. Gonzalez further argued that the verdict should be set aside on the grounds that the trial court had misinterpreted § 250.10 and violated his Fifth Amendment right against self-incrimination by ruling that the People could submit their psychiatrist’s testimony to rebut their own evidence. Id. at 689-90. 11 On December 3, 2009, the trial court denied Mr. Gonzalez’s motion to set aside the verdict. Id. at 696. The court held that when Mr. Gonzalez requested a jury charge on the EED defense solely based on evidence presented by the People, he in effect offered the People’s evidence in support of his request, and that this purported “offer” of “new evidence” triggered the People’s right to reopen their case and rebut their own evidence with additional testimony based on defendant’s statements to the People’s psychiatrist. Id. at 694-95. The trial court also found that allowing Mr. Gonzalez to argue that the People’s evidence supported an EED defense without giving the People an opportunity to rebut their own evidence would have put the People at an unfair disadvantage. Id. at 695-96. The trial court did not address whether Mr. Gonzalez’s Fifth Amendment rights had been violated. On May 6, 2010, Mr. Gonzalez was sentenced to an indeterminate term with a minimum sentence of twenty-five years in prison and a maximum sentence of life in prison (A. 581). Appellate Division Proceedings Mr. Gonzalez filed a timely Notice of Appeal on May 24, 2010. On appeal, Mr. Gonzalez argued that C.P.L. § 250.10 was an evidentiary rule, limited to governing the admissibility of, and procedures for admitting, psychiatric evidence. Mr. Gonzalez also argued that the trial court had violated his 12 Fifth Amendment right against self-incrimination by conditioning the EED jury charge to which he was entitled on the People introducing Mr. Gonzalez’s statements to the People’s psychiatrist against him. In response, the People argued that it was proper to condition the EED instruction on the People introducing Mr. Gonzalez’s statements to the prosecution’s psychiatrist, that Mr. Gonzalez had waived his Fifth Amendment rights at trial by asking for the EED jury instruction, and that “fairness” supported the trial court’s rulings. On January 10, 2012, the Appellate Division, First Department affirmed, concluding that the trial court “properly construed defendant’s request for an EED charge as the equivalent of a ‘notice of intent to proffer psychiatric evidence’ under C.P.L. 250.10, entitling the People to reopen its case and present psychiatric evidence” and that “[w]hen defendant requested the EED charge . . . defendant ‘offered’ that evidence ‘in connection with’ the EED defense, notwithstanding the fact that defendant did not present a case or cross-examine the People’s witnesses concerning his mental state.” Gonzalez, 91 A.D.3d at 454. The Appellate Division also concluded that there had been no Fifth Amendment violation because Appellant’s “notice of an intention to present an EED defense” waived the right 13 against self-incrimination and because the “statements . . . were never used against him at trial.” Id. at 455. Court of Appeals Proceedings On February 9, 2012, Mr. Gonzalez filed an application for leave to appeal to this Court. This Court granted leave on March 29, 2013 (A. 2). 14 ARGUMENT I. THE TRIAL COURT MISAPPLIED C.P.L. § 250.10 BY CONSTRUING APPELLANT’S REQUEST FOR AN EXTREME EMOTIONAL DISTURBANCE JURY CHARGE BASED SOLELY ON EVIDENCE INTRODUCED BY THE PEOPLE AS “EVIDENCE . . . TO BE OFFERED BY THE DEFENDANT” AND STATUTORY “NOTICE,” ENTITLING THE PEOPLE TO REOPEN THEIR CASE AND PRESENT PSYCHIATRIC EVIDENCE TO REBUT THEIR OWN EVIDENCE. Appellant was entitled to an EED jury charge based solely on the People’s evidence. Erroneously construing a request for a jury instruction as “evidence . . . to be offered by the defendant” and C.P.L. § 250.10 “notice,” the trial court refused to give the EED charge without also permitting the People to reopen their case to introduce psychiatric evidence to rebut the evidence they previously had introduced (A. 366-67 (“[I]f [Appellant] want[s] the charge of extreme emotional disturbance, I think it is only fair that the district attorney be given an opportunity to call his witness”)). Neither the text, legislative history of, nor the case law interpreting § 250.10 supports this construction or requires the People to have an opportunity to introduce psychiatric evidence against a defendant before the jury can be instructed on EED. A. Appellant Was Entitled To The EED Jury Charge As this Court recently held, an EED charge “must be given if there is evidence reasonably supportive of the defense” even if the “[d]efendant did not 15 testify or otherwise present evidence” and the “request for an extreme emotional disturbance charge [i]s based entirely on proof elicited during the People’s case.” People v. McKenzie, 19 N.Y.3d 463, 465-66 (2012) (emphasis added). In evaluating the record, the court must “view the evidence in the light most favorable to the defendant.” Id. at 466; see also People v. Moye, 66 N.Y.2d 887, 889 (1985) (defendant entitled to EED charge if “sufficient evidence is presented for the jury to find by a preponderance of the evidence that the elements of the affirmative defense [were] satisfied”). The record amply supports the trial court’s conclusion that Appellant was entitled to the EED charge. Gonzalez, 26 Misc. 3d at 691-92; (see also A. 146-47, 276-81, 584-88, 591, 593-95, 597-98, 600, 603-05). According to the People’s evidence, Appellant repeatedly stabbed Mr. Lebron and dismembered his body in direct response to Mr. Lebron’s latest round of ongoing taunting and abuse (A. 154-58, 160-61, 276-81). Appellant later made statements to police that he was “[o]ut of [his] mind” when he struck Mr. Lebron. (A. 600, 603; see also A. 585, 591). This Court has repeatedly held that evidence of this sort warrants charging the jury on EED. See, e.g., McKenzie, 19 N.Y.3d at 467 (“the sheer number and redundancy of the knife wounds inflicted on [the victim] was indicative of defendant’s loss of control”); People v. Harris, 95 N.Y.2d 316, 320 (2000) (EED 16 charge required based on evidence that defendant “lost control” over his actions); Moye, 66 N.Y.2d at 889-90 (EED charge required based on savage nature of crime, defendants’ statements that “something snapped” inside him, and fact that the victim taunted and ridiculed the defendant). Accordingly, as reaffirmed by this Court’s recent holding in McKenzie, Appellant was entitled to the EED charge even though he “did not testify or otherwise present evidence” and his request for the charge was “based entirely on proof elicited during the People’s case.” McKenzie, 19 N.Y.3d at 465-66. B. Criminal Procedure Law § 250.10 Is Not Triggered By A Request To Charge On EED And Does Not Authorize Conditioning An Otherwise Warranted Jury Instruction On The People Reopening Their Case To Introduce Additional Evidence Rebutting Evidence They Had Introduced Because the evidence supported the EED defense, Appellant was entitled to a jury charge without conditions. McKenzie, 19 N.Y.3d at 466; Moye, 66 N.Y.2d at 889. But relying on C.P.L. § 250.10, the trial court found it “unfair” to submit the EED defense to the jury unless the People were also allowed to reopen their case and introduce psychiatric testimony to rebut the evidence they had introduced and that supported the charge (A. 362-67, 398-402). Invoking the § 250.10 framework, the trial court construed Appellant’s request for an EED jury instruction as an “offer” of psychiatric evidence and “notice of intent to proffer evidence under § 250.10 (A. 398-402). See also Gonzalez, 26 Misc. 3d at 695. 17 The trial court then erroneously conditioned the EED instruction on the People reopening its case to introduce psychiatric testimony against Appellant to rebut evidence they had introduced. 1. Requesting An EED Jury Instruction Is Not “[E]vidence . . . [O]ffered [B]y [T]he [D]efendant” Under C.P.L. § 250.10 And Does Not Trigger The Statute. Criminal Procedure Law § 250.10 does not restrict a defendant’s ability to assert an EED defense. It is an evidentiary statute that governs the admissibility of “psychiatric evidence.” “Psychiatric evidence” is “evidence . . . to be offered by the defendant in connection with” the EED defense, among others. C.P.L. § 250.10(1)(b) (emphasis added). Pursuant to § 250.10, “[p]sychiatric evidence is not admissible upon a trial unless the defendant serves upon the people and files with the court a written notice of his intention to present psychiatric evidence.” C.P.L. § 250.10(2). Once a defendant “serves notice of intent to present psychiatric evidence,” then the People may apply for an order directing the defendant to submit to a psychiatric examination and the resulting report must be distributed appropriately. C.P.L. § 250.10(3)-(4). The statute also permits a defendant to introduce “other proof” in support of the defense, even if he does not submit to a court-ordered psychiatric examination. C.P.L. § 250.10(5). Despite the statute’s clear language, the trial court erroneously construed Appellant’s request for an EED jury charge as “evidence . . . to be offered by the 18 defendant” and “notice” under § 250.10. But equating a request for a jury instruction with an offer of evidence defies the plain meaning of the word “offered” in the evidentiary context and in the cases interpreting § 250.10. As the C.P.L. § 250.10 cases demonstrate, a defendant “offers” evidence within the meaning of the statute only by affirmatively introducing into the record expert or lay testimony regarding the defendant’s mental state or by cross-examining the People’s witnesses on the topic. See, e.g., People v. Almonor, 93 N.Y.2d 571, 577 (1999) (defendant sought to call witness); People v. Berk, 88 N.Y.2d 257, 261 (1996) (defendant sought to call psychiatrist); People v. Diaz, 15 N.Y.3d 40, 43 (2010) (defendant testified and presented psychiatrist’s testimony); People v. Wenzel, 133 A.D.2d 716, 716-17 (2d Dep’t 1987) (defendant “endeavored to prove his affirmative defense by cross-examination of the People’s witnesses”); see also BALLENTINE’S LAW DICTIONARY (3d ed. 2010) (defining “offer of proof” as “[p]resenting evidence for admission or for a ruling upon admissibility”). Appellant did none of these things. He never put on a case in support of the EED defense, he never called any witnesses, and never even cross-examined the People’s witnesses with respect to EED.3 Asking for a jury instruction based on 3 Construing “offered” to include a request for a jury instruction also creates an anomaly in the statutory scheme. The statute mandates that a defendant who intends to offer psychiatric evidence must provide the People notice “before trial,” specifically, “not more than thirty days after entry of the plea of not guilty to the indictment.” C.P.L. § 250.10(2). But a defendant who 19 the People’s evidence is not “offering” evidence within the meaning of the statute or case law, even though it is sufficient to support the EED jury instruction. See McKenzie, 19 N.Y.3d at 454-55. By its terms, § 250.10 was never triggered here. The legislative history supports this interpretation. In 1980, the Legislature specifically revised § 250.10 so that the People’s right to a psychiatric examination would be triggered by notice of a defendant’s intent to “present psychiatric evidence,” rather than notice of an intent to “rely upon [a] defense” of mental disease or defect, such as EED: § 250.10 Notice of defense of mental disease or defect intent to proffer psychiatric evidence; examination of defendant upon application of prosecutor . . . 2. Psychiatric evidence is not admissible upon a trial unless the defendant serves upon the people and files with the court a written notice of his intention to rely upon such defense present psychiatric evidence. L. 1980, c. 548, § 7; 1980 N.Y. Sess. Laws 944 (McKinney) (the Legislature replaced the crossed-out text with the underlined text). In replacing “rely upon such defense” with “present psychiatric evidence,” the Legislature changed the words of the statute to restrict § 250.10’s application to seeks a jury instruction based solely on the People’s evidence never could comply with this requirement, even though entitled to the charge, McKenzie, 19 N.Y.3d at 454-55, because the request to charge only occurs at the close of the trial. 20 those situations in which a defendant gave notice that he intended to present psychiatric evidence, not to all cases in which a psychiatric defense was asserted. See also People v. Davis, 136 Misc. 2d 1076, 1080 (Sup. Ct. N.Y. Co. 1987) (where the defendant had failed to provide adequate § 250.10 notice of his intent to present psychiatric evidence, the court explained that this failure precluded the defendant from introducing psychiatric evidence, “but not the defense”) (emphasis added). Accordingly, the trial court erred by construing the request for a jury charge as an “offer” of evidence and notice under § 250.10. 2. Neither C.P.L. § 250.10 Nor “Fairness” Authorize The People To Introduce New Evidence To Rebut Their Own Evidence. Relying on this erroneous construction, the trial court found that the supposed “notice” and “new evidence” (the request for the EED charge) entitled the People to reopen their case and introduce psychiatric evidence to rebut the evidence they previously had introduced. In doing so, the trial court effectively placed a condition on the jury charge to which Appellant was entitled; if Appellant wanted the jury charged on EED, then the People were entitled to introduce evidence in rebuttal, even though Appellant had not offered any evidence in support of EED. Neither the statute nor “fairness” authorized this. As an initial matter, as explained above, the statute is limited to procedures regulating a defendant’s offer of psychiatric evidence and the People’s right to 21 examine a defendant by a psychiatric expert. Section 250.10 says nothing about the People’s ability to introduce evidence at all, let alone their ability to introduce new evidence to rebut evidence they themselves introduced during their case-in- chief. Moreover, there is no unfairness in charging the jury without allowing the People to reopen their case to rebut their evidence. First, the fairness with which § 250.10 is concerned is merely the requirement that a defendant alert the prosecution to the type and nature of a possible psychiatric defense to permit the prosecution ample time to conduct their own expert examination of defendant. See, e.g., Berk, 88 N.Y.2d at 262-64; C.P.L. § 250.10, Preiser Practice Commentary (McKinney’s 2002). Appellant complied with this provision by giving timely notice and submitting to an examination by the prosecution’s expert. Second, although the statute embodies a concern for fairness, § 250.10 itself provides that there is no unfairness in allowing a jury to be charged on EED even if the People are unable to introduce psychiatric testimony. Under § 250.10(5), if a defendant refuses to be examined by the People’s psychiatric expert, the court may preclude the defendant from offering expert psychiatric testimony at trial. Notably, however, the defendant still can assert an EED defense based on “other proof of his affirmative defense.” Id. In other words, § 250.10 itself contemplates that 22 defendants may assert an EED defense even where the People cannot introduce a psychiatric report. The statute, thus, contradicts the trial court’s and Appellate Division’s views that “fairness” necessarily required that the People be allowed to introduce expert psychiatric evidence if an EED charge were given. See also Davis, 136 Misc. 2d at 1080 (defendant’s failure to provide § 250.10 notice of intent to present psychiatric evidence precluded defendant from introducing psychiatric evidence, “but not the defense”) (emphasis added). Third, there was no unfairness in this case. Here, the People could not possibly be surprised or “sandbagged” by the evidence supporting the EED jury charge. The EED charge was warranted exclusively because of evidence that the People had introduced, not surprise evidence from Appellant. The People had the videotaped statement, the People knew its contents and the likelihood that it supported an EED defense, and the People offered it into evidence anyway. At the conclusion of the People’s case, Appellant reviewed the record that the People had created and asked for a jury instruction supported by it. Thus, the concern of “prevent[ing] disadvantage to the prosecution as a result of surprise,” see Berk, 88 N.Y.2d at 262-64, is not present here. This is not a case, as in Berk, where a defendant attempted to affirmatively introduce expert psychiatric evidence at trial without first notifying the People. See id. at 265 (“defendant sought to introduce 23 expert testimony by a forensic psychologist”). It would be anomalous to suggest that the People were surprised by their own evidence, and there simply is nothing “unfair” about the fact that the People made a strategic decision to introduce evidence that supported their case but also gave rise to an affirmative defense. Finally, there is nothing unfair about Appellant requesting a jury charge after the close of the People’s case. In general, a trial court does not conduct a charge conference until the end of a case, and a jury charge request can be made at any time, even after the court’s initial charge. See, e.g., People v. Khan, 68 N.Y.2d 921, 922 (1986) (“Defendant’s request for a justification charge, though made after summations and the court’s initial charge, neither of which referred to that defense, was timely.”); People v. Johnson, 225 A.D.2d 464, 465 (1st Dep’t 1996) (failure to give requested supplemental charge after delivering initial instruction required new trial). Moreover, there was no basis here for requesting the EED charge until after the People’s case. The only unfairness here was in the trial court’s conditioning the EED charge to which it agreed Appellant was entitled on permitting the People to reopen their case to undermine their own evidence. Whether termed “reopening” or “rebutting,” the fundamental point is the same: It is unfair to allow the People to introduce additional evidence to contradict their case-in-chief simply because a 24 defendant asked for a jury instruction based on the record the People created. See C.P.L. § 260.30(7) (“The people may offer evidence in rebuttal of the defense evidence”) (emphasis added). The trial court improperly construed C.P.L. § 250.10 and, based on the erroneous construction, effectively conditioned the EED jury charge on the People reopening their case to rebut evidence that they had previously introduced, even though Appellant had offered no evidence or even cross-examined the prosecution’s witnesses on the issue of EED. This error requires reversal. II. THE TRIAL COURT VIOLATED APPELLANT’S FIFTH AMENDMENT RIGHT BY CONDITIONING ALLOWANCE OF THE EED JURY CHARGE ON THE INTRODUCTION OF APPELLANT’S FIFTH-AMENDMENT-PROTECTED STATEMENTS AGAINST HIM. The trial court also erred by impermissibly forcing Appellant to choose between a warranted EED jury charge and not having his statements to the People’s psychiatrist used against him. By conditioning the charge on the admission of the statements, the trial court infringed Appellant’s constitutional right against self-incrimination, requiring reversal. A. Appellant’s Statements To The People’s Psychiatrist Were Protected By The Fifth Amendment The Fifth Amendment’s self-incrimination clause generally prohibits the introduction into evidence of a psychiatric evaluation based on a defendant’s 25 statements. Estelle v. Smith, 451 U.S. 454, 464-66 (1981) (introduction of a psychiatric report based on court-ordered interview of defendant violated Fifth Amendment right against self-incrimination). Admission of such testimony is prohibited because a psychiatrist’s opinion necessarily is based on communications with the defendant. Thus, allowing a psychiatrist to testify would in effect permit the jury to hear statements made to the psychiatrist as if the defendant actually were testifying on the stand. See, e.g., id. at 467-69; Buchanan v. Kentucky, 483 U.S. 402, 422 (1987); People v. Diaz, 3 Misc. 3d 686, 692-93 (Sup. Ct. Kings. Co. 2004). For the same reason that a defendant cannot be compelled to testify, his words cannot be used against him through a psychiatrist’s testimony or report unless and until he has waived his Fifth Amendment rights. See Buchanan, 483 U.S. at 422-24; People v. Kruglik, 256 A.D.2d 592, 593 (2d Dep’t 1998). Appellant’s Fifth Amendment rights were violated even though the statements were not introduced into evidence because a Fifth Amendment violation occurs if a defendant is penalized for remaining silent. See New Jersey v. Portash, 440 U.S. 450, 454-56 (1979) (Fifth Amendment violated where defendant did not testify because trial court ruled that if defendant did so, his previously immunized testimony would be admitted); Brooks v. Tennessee, 406 U.S. 605, 610-11 & n.6 (1972) (“The dissenting opinions suggest that there can be no violation of the right 26 against self-incrimination in this case because Brooks never took the stand. But the Tennessee rule imposed a penalty for petitioner’s initial silence, and that penalty constitutes the infringement of the right.”). The trial court improperly penalized Appellant for remaining silent by refusing to charge the jury on EED unless the People could introduce into evidence psychiatric testimony based on his statements to the prosecution’s psychiatrist. This penalty, thus, constitutes a Fifth Amendment violation even where the statement was not introduced. B. Appellant Never Waived His Fifth Amendment Right Contrary to the Appellate Division’s ruling, see Gonzalez, 91 A.D.3d at 455, a criminal defendant does not waive his Fifth Amendment right to remain silent at trial merely by submitting to a psychiatric examination or filing notice regarding psychiatric evidence.4 See Battie v. Estelle, 655 F.2d 692, 702 (5th Cir. 1981) (“Submitting to a psychiatric or psychological examination does not itself constitute a waiver of the [F]ifth [A]mendment’s protection.”); Diaz, 3 Misc. at 694 (reviewing cases and concluding that “[a]ll jurisdictions seem to agree that the 4 As a practical matter, it makes sense that notice and submission to an examination by the prosecution’s psychiatrist do not amount to a waiver of a defendant’s Fifth Amendment right at trial. Criminal Procedure Law § 250.10 requires notice of intent to offer psychiatric evidence to be served before trial and “not more than thirty days after entry of the plea of not guilty to the indictment.” C.P.L. § 250.10(2). If notice alone were a waiver, a defendant would be forced to waive his Fifth Amendment right to preclude use of his statements against him at trial long before the trial actually begins (and before knowing what evidence would be offered against him) simply to preserve the option of introducing psychiatric evidence at some point. 27 mere filing of a notice of intent to offer a mental status defense does not bar the defendant from asserting his or her Fifth Amendment rights.”), aff’d on other grounds, 62 A.D.3d 157 (2d Dep’t 2009), aff’d, 15 N.Y.3d 40 (2010); United States v. Wilson, No. 04 Crim. 1016 (NGG), 2012 WL 6962982, at *13 (E.D.N.Y. Jun. 22, 2012) (defendant giving notice of intent to present an EED defense “makes a limited waiver of his Fifth Amendment rights that permits the Government to conduct an examination of the defendant”); Hittson v. Humphrey, No. 01 Civ. 384, 2012 WL 5497808, at *27-34 (M.D. Ga. Nov. 13, 2012) (defendant who does not introduce evidence of his mental state does not generally waive Fifth Amendment privilege by consenting to psychiatric evaluation). A defendant waives his Fifth Amendment right over statements to a prosecution psychiatrist only if he actually introduces evidence regarding his mental state. United States v. Hall, 152 F.3d 381, 398 (5th Cir. 1998) (defendant retains his Fifth Amendment privilege against self-incrimination until he waives it by offering psychiatric testimony), abrogated on other grounds by United States v. Martinez-Salazar, 528 U.S. 304 (2000); Brown v. Butler, 876 F.2d 427, 430 (5th Cir. 1989) (state may not introduce expert testimony based on previous psychological examination of defendant where defendant had announced intention to offer expert psychological evidence but never did so); United States v. Trapnell, 28 495 F.2d 22, 24 (2d Cir. 1974) (“[O]nce a defendant puts in evidence the opinion testimony of his expert . . . the Government has the right to have its expert examine the accused and to put in evidence his opinion testimony in rebuttal, and that . . . does not infringe the defendant’s right against self-incrimination.”) (emphasis added; internal quotation marks omitted); United States v. Harding, 219 F.R.D. 62, 63 (S.D.N.Y. 2003) (“[F]airness virtually requires that the government have an opportunity to have the defendant examined by appropriate experts in order that it may prepare properly for trial—just as it recognizes that nothing the defendant says to those experts may be used by the government at trial until after the defendant has introduced evidence of his mental condition.”) (emphasis added). Appellant did none of the things that courts in this state construe as an offer of psychiatric evidence. He never introduced expert testimony. E.g., Kruglik, 256 A.D.2d at 593. He never introduced lay testimony. Diaz, 15 N.Y.3d at 46-47. He never even cross-examined on the issue. Wenzel, 133 A.D.2d at 716-17. He simply requested a jury charge based on evidence introduced by the People as he was entitled to do. McKenzie, 19 N.Y.3d at 465-66. A request for a jury charge is not an introduction of evidence. It is only a request for a legal instruction to which a defendant is entitled based on evidence in the record. See C.P.L. § 300.10(2) (a jury charge must set forth the “material legal principles applicable to the particular 29 case, and, so far as practicable, explain the application of the law to the facts”). Because Appellant did not introduce any evidence concerning his emotional or mental state at trial, he did not waive his Fifth Amendment privilege against self- incrimination, and the People were not entitled to offer evidence based on Appellant’s statements to the prosecution’s psychiatrist in a psychiatric exam. See Buchanan, 483 U.S. at 422-24; Kruglik, 256 A.D.2d at 593; see also Hall, 152 F.3d at 398; Brown, 876 F.2d at 430. This conclusion also comports with the policies behind the waiver doctrine. When a defendant testifies, he waives his Fifth Amendment privilege with respect to all subjects discussed. People v. Bagby, 65 N.Y.2d 410, 414 (1985) (“In its classic application, the waiver principle prevents a witness from testifying in his or her own defense and thereafter refusing to answer questions on cross-examination regarding matters made relevant by the direct examination because the answers might tend to be incriminating.”). The waiver is justified to guard against a defendant distorting the truth-seeking process by “pick[ing] and choos[ing] what aspects of a particular subject to discuss.” Mitchell v. United States, 526 U.S. 314, 322 (1999). Consistent with this policy, this Court has expressed concern about the “unfair[ness]” of permitting a defendant to present psychiatric evidence on his mental state while denying the People the opportunity to rebut it. People v. Segal, 30 54 N.Y.2d 58, 67 (1981) (affirming trial court’s striking of defendant’s expert where defendant refused to submit to examination by People’s expert to test the validity of his expert’s opinions). But that rationale plainly is inapplicable where a defendant has not introduced any psychiatric evidence and, indeed, has not introduced anything into evidence on the EED defense or even cross-examined the prosecution’s witnesses on the issue. There is no risk that a defendant can distort the truth-seeking process where, as here, his adversary selects which of his statements is put before the jury, knows the content of the statements, and knows the likelihood that they would warrant an EED charge. Accordingly, Appellant did not waive his Fifth Amendment privilege against self-incrimination simply by asking for a jury instruction. Forcing him to choose between remaining silent and receiving a jury charge supported by the People’s evidence violated his constitutional right and requires reversal. 31 CONCLUSION For the foregoing reasons, the conviction for Second Degree Murder must be set aside and a new trial ordered. Dated: New York, New York June 14, 2013 DAVIS POLK & WARDWELL LLP By: Mathew S. Miller mathew.miller@davispolk.com 450 Lexington Avenue New York, New York 10017 (212) 450-4000 THE BRONX DEFENDERS V. Marika Meis marikam@bronxdefenders.org 360 East 161st Street Bronx, New York 10451-4338 (718) 838-7846 Attorneys for Victor Gonzalez /s/ Mathew S. Miller