The People, Respondent,v.Victor Gonzalez, Appellant.

Brief

N.Y.January 9, 2014

Argued by PETER D. CODDINGTON (20 minutes) APL - 2103-00081 ____________________________________________________________________________ Court of Appeals STATE OF NEW YORK S)))Q THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - VICTOR GONZALEZ, Defendant-Appellant. ____________________________________________________________________ R E S P O N D E N T ’ S B R I E F _______________________________________________________________________________ ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent 198 East 161st Street Bronx, New York 10451 (718) 838-7090; Fax (718) 590-2728, or 590-6523 email: coddingp@bronxda.nyc.gov PETER D. CODDINGTON Chief Appellate Attorney of Counsel Date Completed: July 16, 2013 ______________________________________________________________________________ PRINTED ON RECYCLED PAPER TABLE OF CONTENTS Page Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Question Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Pretrial Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Pretrial Psychiatric Examinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The People’s Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Charge Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Justice Cirigliano’s Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 The Appellate Division’s Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ARGUMENT POINT JUSTICE CIRIGLIANO PROPERLY CONDITIONED APPELLANT’S RIGHT TO ASSERT EED UPON THE PROSECUTION’S RIGHT TO REBUT THAT DEFENSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 By Withdrawing His Request for the EED Charge, Appellant Waived His Claims for Review as Questions of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 TABLE OF CONTENTS Page By Offering Evidence in Connection With the EED Defense, Appellant Waived His Fifth Amendment Rights Regarding the Rebuttal Evidence . . . . . . . . . . . . 26 The Ruling Permitting the People to Rebut Appellant’s EED Defense Comports with the Fairness Principles that were Enacted by CPL § 250.10 . . . . . . . . . . . 28 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 TABLE OF AUTHORITIES Page Table of Cases Brown v. Butler, 876 F2d 427, 430 [5th Cir 1989]) . . . . . . . . . . . . . . . . . . . . . . . 28 Brooks v. Tennessee, 406 US 605 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Buchanan v. Kentucky, 483 US 402 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28 Estelle v. Smith, 451 US 454 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28 Lee v. County Court of Erie County, 27 N.Y.2d 432 (1971), cert. denied,404 US 823 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 New Jersey v. Portash, 440 US 450 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 People v Jenkins, 44 A.D.3d 1 (1st Dept. 2007), aff’d, 11 N.Y.3d 282 (2008) . 24, 25 People v. Almonor, 93 N.Y.2d 571 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 29 People v. Berk, 88 N.Y.2d 257 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29, 31 People v. Brown, 4 A.D.3d 886 (4th Dept. 2004) . . . . . . . . . . . . . . . . . . . . . . . . 31 People v. Carrion, 54 A.D.3d 640 (1st Dept. 2008) . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Clayton, 41 A.D.2d 204 (2d Dept. 1973) . . . . . . . . . . . . . . . . . . . . . . . 24 People v. Cruickshank, 105 A.D.2d 325 (3rd Dept. 1985), aff’d, 67 NY2d 625 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 People v. Davis, 136 Misc.2d 1076 (Sup. Ct. N.Y. Co. 1987) . . . . . . . . . . . . . . . 32 People v. Diaz, 15 N.Y.3d 40 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 29 i TABLE OF AUTHORITIES Page People v. Garguilio, 57 A.D.3d 797 (2d Dept. 2008) . . . . . . . . . . . . . . . . . . . . . 25 People v. Gonzalez, 20 N.Y.3d 1099 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 People v. Gonzalez, 31 Misc. 3d 687 (Sup. Ct. Bronx Co. 2009) . . . . . . . . 2, 14, 15 People v. Gonzalez, 91 A.D.3d 453 (1st Dept. 2011). . . . . . . . 2, 15-17, 22, 28, 32 People v. Hall, 18 N.Y.3d 122 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 People v. Hill, 10 A.D.3d 310(1st Dept. 2004), aff’d 4 N.Y.3d 876 (2005) . . . . 31 People v. Leon, 121 A.D.2d 1 (1st Dept. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. McKenzie, 19 N.Y.3d 463, (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 People v. Moye, 66 N.Y.2d 887 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14, 19 People v. Roche, 98 N.Y.2d 70 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 People v. Smith, 1 N.Y.3d 610 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 People v. Wenzel, 133 AD2d 716 (2d Dept. 1987) . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Whipple, 97 NY2d 1 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 United States v. Patane, 542 US 630 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 ii TABLE OF AUTHORITIES Page Statutory Authority Criminal Procedure Law § 210.40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Criminal Procedure Law § 250.10 . . . . . . . . . . . . . . 2, 3, 9, 11-15, 18-21, 23, 27-32 Criminal Procedure Law § 60.55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13, 26 Constitutional Authority United States Constitution Fifth Amendment . . . . . . . . . . 2, 10-14, 20, 23, 25-28 Other Authority McKinney’s Statutes § 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 McKinney’s Statutes § 98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 iii COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- VICTOR GONZALEZ, Defendant-Appellant. --------------------------------------------------------------------------X RESPONDENT'S BRIEF STATEMENT By permission of Chief Judge Jonathan Lippman, granted March 29, 2013 (A. 2),1 (People v. Gonzalez, 20 N.Y.3d 1099 [2013]), Victor Gonzalez appeals from an order of the Appellate Division, First Department, entered January 10, 2011, which affirmed a judgment of the Supreme Court, Bronx County (Cirigliano, J.), rendered May 6, 2010, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life. Appellant is presently incarcerated. 1Page notations prefixed by “A.” refer to appellant’s appendix; those prefixed by “H.” refer to the pretrial hearing; those prefixed by “T.” refer to the trial; those prefixed by “V.” refer to the videotaped confession. QUESTION PRESENTED 1. Because defense counsel had led the prosecutor to believe that he did not intend to interpose a defense of extreme emotional disturbance (Penal Law § 125.25 [1][a]), (hereafter “EED”) at trial by withdrawing his Criminal Procedure Law § 250.10 (1)(b) notice of intent to offer psychiatric evidence, did the trial court act within its discretion when it told defense counsel that it would allow the prosecutor to present rebuttal evidence to EED after defense counsel changed course and requested that EED be submitted to the jury? When Justice Cirigliano ruled that he would submit EED to the jury upon condition that the prosecutor could reopen his case to rebut that defense, appellant withdrew his request to charge EED. In deciding appellant’s CPL § 330.30 (1) motion to set aside the verdict, Justice Cirigliano found that, by withdrawing his request, appellant had failed to preserve a question of law which would require reversal of the judgment on appeal. People v. Gonzalez, 31 Misc. 3d 687, 690, 695 (Sup. Ct. Bronx Co. 2009). The Appellate Division affirmed, finding that Justice Cirigliano properly construed defendant’s request for an EED charge as the equivalent of a “notice of intent to proffer psychiatric evidence” under CPL 250.10. It reasoned that, when appellant requested the EED charge based on his statements to the police, he “offered” that evidence “in connection with” the EED defense, notwithstanding the fact that he did not present a case or cross-examine the People’s witnesses concerning his mental state. It also found appellant necessarily waived any Fifth Amendment rights regarding the offered evidence, to the extent it would be offered in relation to the EED defense. People v . Gonzalez, 91 A.D.3d 453, 454-55 (1st Dept. 2011). 2 THE FACTS The Indictment On May 25, 2006, the Bronx County Grand Jury indicted appellant for second- degree murder, first-degree manslaughter, report of deaths – removal of a body, and dissection of the body of a human being (Indictment No. 1975/06). The Pretrial Hearing On March 24, 2009, Justice Cirigliano denied appellant’s motion to suppress his written confession to a detective, his videotaped confession to an assistant district attorney, and evidence seized in his apartment (H. 156-58). Appellant does not challenge that ruling. The Pretrial Psychiatric Examinations Appellant had served pre-trial CPL § 250.10 notice that he would offer psychiatric evidence in support of EED. Accordingly, appellant was examined by psychiatrists for the defense and the prosecution. Following the submission of the defense psychiatrist’s report, counsel for the defense, Matthew Kadushin, Esq., of the Bronx Defenders (“Kadushin”), advised the prosecutor, Gary Weil, Esq. (“Weil”), four weeks before trial that, although he hoped Weil would offer a manslaughter plea to settle the case, he would not be relying on EED at trial and “had basically withdrawn my notice.” From that point on, Weil was led to believe that justification 3 would be the defense in this case (A. 357-58, 380-81; T. 290-91, 313-14). THE TRIAL The People’s Case At 5:00 a.m. on May 10, 2006, Lt. Dennis Murphy, the midnight patrol commander for the 41st precinct and his driver, Police Officer Alexander Santiago, received a radio transmission directing them to an address Kelly Street in the Bronx, where they found a hysterical woman who told them her boyfriend’s body was in a nearby garbage bag. Inspection of the bag revealed a bleeding torso (A. 79-83, Murphy: T. 12-16; A. 110-15, Santiago: T. 43-48). Following the woman’s direction, Murphy Santiago, and Officer Biondo went to the third floor where they saw blood drops in front of the door to apartment 3B (A. 83-85, Murphy: T. 16-18; A. 115-17, Santiago: T. 48-50). When appellant answered their knock on the door, the officers placed him on the floor and handcuffed him. Then, while Murphy guarded appellant, Santiago and Biondo quickly searched the apartment for other victims but found none. Appellant offered no resistance when Murphy took him to the 41st precinct. Santiago remained behind to guard the apartment (A. 85-88, 93-94, Murphy: T. 18-21, 26-27; A. 117-20, Santiago: T. 50-53). After Detective Robert Grant saw the torso in the garbage bag, he directed the sanitation department to cease collecting garbage bags in that area because the police 4 had not yet located all the body parts (A. 249-51, 255; Grant: T. 182-84, 188). At the precinct, Grant found appellant in the downstairs cell. Appellant immediately asserted that he had acted in self-defense, but Grant stopped him from talking until 9:50 a.m., when he read appellant the Miranda rights (A. 256-57, 261-63, 312-14, 317, Grant: T. 189-90, 194-96, 245-47, 250; Exhibit 52, the Miranda rights form, A. 260-61, T. 193-94). Appellant waived his rights and asserted that he could show the detectives where he dumped the other body parts. Then he took the police to five separate locations in the Hunts Point area of the Bronx, where Detective O’Brien of the crime scene unit recovered five bags containing bloody clothing and the remaining body parts of Wilfredo Pinto Lebron, Jr. (A. 120-25, Santiago: T. 53-58, 67-70; A. 264-70, Grant: T. 197-203; Stipulation: A. 229-39; T. 162-72).2 Upon their return to the precinct, appellant explained how he had killed and dismembered Lebron. Then, he repeated his confession as Grant wrote down its sum and substance. Appellant reviewed the writing, added some corrections, and initialed it. (A. 272-74, 321, Grant: T. 205-07, 254; A. 274, 604-05 Exhibit 53, the written statement, T. 207). Appellant said he rented a room in the apartment of Sandra Estrada, Lebron’s girlfriend. Around 7:00 p.m. on May 9, 2006, appellant returned 2. Lebron’s sister, Amada Alfonso, and Officer Santiago identified Lebron’s remains at the morgue (A. 71, 76, Alfonso: T. 4, 9; A. 125, Santiago: T. 58). 5 to Estrada’s apartment to find Lebron there, drunk on cognac. Lebron yelled at appellant and then assaulted him, breaking a wooden bookshelf across his back (A. 276-77, T. 209-10). The fight continued until Eddie from next door came and broke it up. Then appellant tried to take a shower, but Lebron insisted on continuing the fight. Accordingly, appellant said, he went to his room, removed a hammer from his tool bag, and, to stop Lebron from continuing his abuse, hit him in the head with the hammer. Lebron ran to Sandra’s room, but appellant followed, and because “I couldn’t let him kill me,” continued to hit Lebron in the head with the hammer (A. 277, T. 210). When Lebron stopped moving, appellant related, he tried to move the body out of Estrada’s apartment, but could not because it was too heavy. Accordingly, appellant dragged Lebron’s body to the bathroom and dismembered it using knives from the kitchen. Then, appellant placed the body parts and bloody clothes in separate garbage bags and, on his bicycle, took them to various locations in the vicinity of Kelly Street (A. 278-80, T. 211-13). When he returned, appellant cleaned the apartment and showered. He believed that Sandra must have called the police because they arrived so soon after his return (A. 280-81, T. 213-14). That afternoon, appellant took the detectives to apartment 3B where he showed them the hammer and knives he had used and permitted them to take them (A. 282- 84, Grant: T. 215-17; A. 284-86, Exhibits 41-43, the knives appellant used to 6 dismember the body; Exhibit 45, the hammer, T. 217-19). Later that day, appellant repeated and embellished his confession on videotape to Assistant District Attorney David Weisel. The principal embellishments included appellant’s claims that Lebron, the boss at appellant’s construction job, had abused him physically and mentally on a daily basis for weeks (V. 5-6), that at various points during the fight and dismemberment appellant had “lost my mind” (V. 3, 9), had “just lost it” (V. 15), or “was out of [my] mind” (V. 4, 16, 18), that he had wanted to leave the apartment after his shower (V. 9), and that he had learned how to butcher animals on a farm (V. 11). (A. 294, Grant: T. 227; Exhibit 50, appellant’s videotaped confession, A. 146, 244, 303-04, T. 79, 177, 236-37). Through DNA analysis, Linda Razzano, a criminalist for the Medical Examiner, identified Lebron’s blood on the knives and hammer (A. 239-41, Stipulation: T. 172- 74). Dr. Carolyn Kappen reassembled Lebron’s body parts and determined that Lebron’s death was caused by a combination of ten hammer blows to the head which crushed his skull and two stab wounds to the heart (which appellant had not mentioned in either of his confessions). She found no defensive wounds on Lebron’s arm (A. 156-57, 163-64, 168-69, 183, 213-214, Kappen: T. 89-90, 96-97, 101-02, 116, 146-47). 7 The Charge Conference3 After the People rested, Justice Cirigliano decided, based upon appellant’s statements during his videotaped confession, to grant appellant’s request to submit the defenses of EED and justification to the jury (A. 346-47, T. 279-80). Weil strongly opposed EED, arguing that while the evidence showed that appellant was angry at Lebron and hated him, nonetheless he had acted deliberately because he had returned to the fight and killed Lebron after the initial altercation ended. Accordingly, Weil argued, the evidence did not support the loss of control that is the hallmark of EED (A. 350-56, T. 283-89). Justice Cirigliano granted appellant’s application to submit EED (A. 356-57, T. 289-90). In response, the prosecutor announced that he had been led to believe that the defense would be justification, and now that it had expanded to include EED, he had the right to rebut the defense through the prosecution’s psychiatrist, Dr. Eric Goldsmith (“Goldsmith”), who examined appellant before trial and opined that appellant had acted out of anger but had not lost control of his actions (A. 357-59, T. 290-92). In reply, Kadushin agreed that, four weeks before trial, he had told Weil that he 3The parties’ arguments occurred during two court sessions. Because the parties’ positions remained the same during both sessions, we have melded the two sessions into one argument in this brief for the sake of simplicity. 8 would not rely on EED. He had never formally withdrawn his CPL § 250.10 notice but had represented that he would do so. He explained that, at the time, he knew that Weil had not served CPL § 710.30 notice with regard to appellant’s videotaped confession, and, because he believed that the videotaped confession provided an evidentiary basis for EED while the written confession did not, he inquired if Weil planned to introduce the videotaped confession. Weil told him that he was not committed to introducing the videotaped statement at trial even if the defense made no objection. When trial began, Kadushin was concerned that Weil would rely solely on the written confession. “So it put me in a very tactically difficult position, because there is some case law that suggests he could go forward solely on the written statement, and I didn’t want to – so I had to wait until actually the issue became clear and it was played on the jury before I felt I could raise the issue.” When Weil introduced the videotaped confession, Kadushin felt that People v. Moye, 66 N.Y.2d 887 (1985), allowed him to raise EED based on evidence submitted by the prosecution. He argued that no law permitted the prosecution to rebut EED if the defense introduced no affirmative evidence of EED and didn’t touch upon the subject on cross-examination of the prosecution witnesses (A. 359-62, 380-83, 391; T. 292- 95, 313-16, 324, 331-32). Kadushin conceded that, if he had offered evidence of EED through appellant’s testimony, Weil could have rebutted EED through Goldsmith’s 9 testimony, but, he argued, because he had offered no evidence on the defense case, the introduction of Goldsmith’s opinion, to the extent that it relied on statements appellant had made during the psychiatric examination, violated appellant’s Fifth Amendment right against self-incrimination (A. 359-62, 369-70, 373, 385-86, 396-97; T. 292-95, 302-03, 306, 318-19, 329-30). Weil responded that when Kadushin advised he would not object to the videotaped confession, he told Kadushin that he would introduce the evidence, but there had never been any representation that Kadushin would use portions of the confession as the basis for EED. In fact, Weil said, he would have told Kadushin that he would introduce the tape even if Kadushin had advised him of the EED defense. But, due to Kadushin’s failure to explain his tactics before trial, Weil thought that EED was out of the case and had voir dired the jury on the theory that the defense would be justification [e.g. Voir Dire transcript pp. 50-51, 84-85, 179-80, 183-84, 296-300] (A. 387-91, T. 320-24). Weil acknowledged the tactical benefit to the defense of raising EED at the last minute because he couldn’t “gear” his case to meet it, but nonetheless cited the unfairness to the prosecution because the defense was “completely out of the blue” and the jury was unprepared for it. Moreover, if Kadushin had not withdrawn EED from the case, the parties could have raised their contentions with the court before jury selection, obtained a ruling, and then acted 10 accordingly (A. 389-92, T. 322-25). Moreover, Weil continued, by withdrawing the CPL § 250.10 notice, Kadushin had not withdrawn the right to raise EED, but rather his right to introduce psychiatric evidence in support of EED. “If he doesn’t want to call the doctor, that’s his privilege, but if he’s raising the issue of extreme emotional disturbance, I still have a right to call my doctor to rebut that. It’s a very serious, important issue and the jury has the right to hear the evidence. They can hear the evidence from the defense if they want to call, they have a right to hear my witness also.” Nor, Weil continued, were Fifth Amendment rights in jeopardy, because, pursuant to CPL § 60.55, Goldsmith’s testimony would not be admitted as evidence in chief (A. 393-95, T. 326-28). Justice Cirigliano considered the parties arguments over the weekend recess, and ruled, as he had indicated he would on Friday, that he would submit EED to the jury, but that, in fairness to the prosecution, he would permit Weil to call Goldsmith to rebut the defense (A. 362-63, 375, 397-401; T. 295-96, 308, 330-34). Kadushin responded , “Your Honor, I’m withdrawing my request for extreme emotional disturbance based upon your Honor’s ruling.”4 (A. 364-65, 401, T. 297-98, 334). The Motion to Set Aside the Verdict 4Kadushin also stated, “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 they’re allowed to get into statements that our client made regarding his background and things that happened on May 9th of 2006.” (A. 386, T. 319). 11 Following the jury’s verdict (rendered in less than five hours of deliberation, PM 4)5, appellant moved, pursuant to CPL § 330.30 (1), to set aside the verdict, claiming that the court’s ruling conditioning appellant’s right to interpose EED upon the prosecution’s right to rebut that defense, would require reversal as a matter of law if raised on appeal (DM 16-18). Appellant argued that Justice Cirigliano erred in finding that appellant had attempted to offer psychiatric evidence, as that term is defined in CPL § 250.10, because he had relied on evidence presented by the People (DM 4-7). He argued that requesting an EED charge is not offering evidence (DM 8- 9, 12-13), and that the use of his statements to the psychiatrist violated his Fifth Amendment privilege against self-incrimination (DM 10-11). In response, the People asserted that a CPL § 330.30 (1) motion did not lie because, by withdrawing his request for the EED charge, appellant had abandoned the claim and failed to preserve a question of law for appellate review (PM 4-7). Second, the People argued that appellant had offered evidence in support of EED within the meaning of CPL § 250.10, when he offered evidence introduced by the People for the unanticipated (and unnoticed) purpose of EED, and that because appellant had withdrawn his CPL § 250.10 notice, his attempt to “sandbag” the prosecution and 5Page notations denominated “DM” refer to appellant’s motion to set aside the verdict; those denominated “PM” refer to the People’s opposition to that motion; those denominated “RM” refer to appellant’s reply to the People’s opposition. 12 “end-around” the purposes of CPL § 250.10 should bar him from the benefit of the EED defense (PM pp 8-10). Third, citing People v. Carrion, 54 A.D.3d 640 (1st Dept. 2008), the People argued they had the right to rebut a new theory of the case interjected by the defense even if the defense did not offer any evidence. Moreover, they continued, the rebuttal evidence would not infringe appellant’s Fifth Amendment rights because (1) appellant had been warned about the purposes for which his statements to Goldsmith could be used, (2) CPL § 60.55 prevented the use of the statements as evidence in chief, and (3) by interposing EED as a defense, appellant affirmatively waived his Fifth Amendment rights as to the rebuttal evidence (PM 11- 12). Finally, the People argued that because the trial evidence showed that appellant had acted purposely and in control when he murdered Lebron and dismembered his body, the evidence did not support the submission of EED (PM 12-14). In reply, appellant asserted that he had preserved a question of law for review (RM 2-4), he had not offered evidence within the meaning of CPL § 250.10 (RM 4-6), and the introduction of rebuttal evidence by the prosecutor would violate his Fifth Amendment right to refrain from self-incrimination (RM 6-9). Justice Cirigliano’s Decision On December 3, 2009, Justice Cirigliano denied the to motion to set aside the verdict, concluding that the motion was procedurally defective because, by 13 withdrawing his request for the EED charge, appellant had failed to preserve a question of law that would require reversal by an appellate court. (A. 610-11). People v Gonzalez, 31 Misc 3d 687, 690, 695 (Sup. Ct. Bronx Co. 2009). But assuming, arguendo, that appellant had preserved his claim, he went on to discuss the reasons for his ruling. First, Justice Cirigliano concluded that, because appellant’s statements in the videotaped confession provided the evidentiary foundation for EED, People v. Moye, 66 N.Y.2d 887 (1985), required him to submit the defense. Moye, however, did not address the notice requirements of CPL § 250.10 (hereafter “CPL 250 notice”). (A. 612-13, Gonzalez at 692-93. Addressing the notice requirement, Justice Cirigliano reasoned from People v Diaz (then at the Appellate Division level, 62 A.D.3d 157 [2d Dept. 2009]) that while appellant could meet his evidentiary burden through lay testimony alone, his offering of the videotaped confession to prove EED required CPL 250 notice. (A. 615-16) Gonzalez at 693-94. He continued: In the instant case, prior to the start of trial, the defense complied with CPL 250.10 and both sides had an opportunity to seek their own expert testimony. Then the defense withdrew its notice, which the People took to indicate that the affirmative defense of EED was not going to be an issue throughout the trial and hence fashioned their strategy accordingly. Now, upon this court granting the defense's request to charge EED, the door swung open for 14 the defense to tailor their summation to fit that particular charge. In effect, creating the perception of an unrebuttable inference. Permitting this one-sided inference would have placed the People at an “unfair disadvantage.” The court, therefore, had an obligation to allow the People to offer its expert to rebut this inference thus, presenting to the jury two sides of this particular issue. It is this court's opinion that the request to charge EED by the defense was both a request to charge and notice of intent to proffer evidence of EED. Practically speaking and within the context of the subject trial, the defense could not have predicted whether the defendant's videotaped admission would be used by the People. Further, without the confession the subjective and objective elements of EED would have been nonexistent. The use by the People of defendant's own statements as confessions of guilt, gave the defense the opportunity to recharacterize the statement and proffer their own client's statements as evidence of EED and to pursue the affirmative defense of EED. The request to charge EED, served as notice to the People of the defense's intent to offer the defendant's statements in support of the affirmative defense of EED. In effect, the requirements of section 250.10 were met. (A. 616-17) Gonzalez at 694-95. * * * This court's determination is consistent with the intent behind CPL 250.10 which involves the concept of “basic fairness.” (CPL 240.45.) To permit the defense to recharacterize the defendant's statement and offer it as evidence of EED and not permit the People the opportunity to present relevant evidence to rebut the offer, would open up a Pandora's box that would eviscerate the very intent and spirit of the law, undermine the concept of justice and be utterly unfair to the People. (People v Berk, 88 NY2d 257 [1996].) Further, it would create a precedent that would permit the defense to avoid their obligation to give notice under section 250.10, deny the People their right to 15 examine the defendant and permit the EED to go unchallenged. This could not have been the intent of the Legislature, nor the spirit of the law. The very essence of CPL 250.10 seeks to insure that the defense and the People are afforded a fair trial and safeguard the orderly and expeditious disposition of cases. (A. 617-18). Gonzalez at 695-96. The Appellate Division’s Decision On January 10, 2011, the Appellate Division, First Department, affirmed. People v . Gonzalez, 91 A.D.3d 453, 454-55 (1st Dept. 2011). It reasoned: The court properly construed defendant’s request for an EED charge as the equivalent of a “notice of intent to proffer psychiatric evidence” under CPL 250.10, entitling the People to reopen its case and to present psychiatric evidence. CPL 250.10 defines psychiatric evidence as, inter alia, “[e]vidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of extreme emotional disturbance” (CPL 250[1][b]). When defendant requested the EED charge based on his statements to the police, 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 at 454. * * * * * To allow defendant to recharacterize his statements as evidence of EED, yet not permit the People the opportunity to present evidence in rebuttal, would be manifestly unfair, effectively allowing the defense to “sandbag” the prosecution, and defeat the very purpose of the statute. The psychiatric evidence offered by the People was 16 obtained, with defendant’s consent, when defendant gave notice of his intention to present an EED defense. Defendant necessarily waived any Fifth Amendment rights regarding that evidence, to the extent it would be offered in relation to the EED defense. In any event, defendant’s statements to the psychiatrist were never used against him at trial. We limit our holding to the facts herein and express no opinion concerning a case where a defendant has not filed such initial CPL 250.10 notice. Gonzalez at 455. 17 ARGUMENT POINT JUSTICE CIRIGLIANO PROPERLY CONDITIONED APPELLANT’S RIGHT TO ASSERT EED UPON THE PROSECUTION’S RIGHT TO REBUT THAT DEFENSE (responding to defendant-appellant’s brief, Points I-II, pp. 14-30). This case presents a single question for this Court’s review: whether Justice Cirigliano abused his discretion as a matter of law in ruling that, if defendant was permitted to change course and to surprise the prosecutor by re-interposing the EED defense, he would, as a matter of fairness, allow the prosecutor to rebut that defense with the testimony of a psychiatrist who had already examined appellant and filed a report concerning the likelihood that he suffered from EED at the time of the crime. On these unusual facts, Justice Cirigliano fashioned an appropriate remedy. In pertinent part, CPL § 250.10 provides: 1. As used in this section, the term psychiatric evidence means: . . . (b) Evidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of extreme emotional disturbance as defined in paragraph (a) of subdivision one of section 125.25 of the penal law . . . 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 present psychiatric evidence. 18 Although the statute defines “psychiatric evidence” as “evidence of mental disease or defect,” this Court has given the term an expansive reading, finding that the term (as it pertains to EED) includes “a mental infirmity not rising to the level of insanity at the time of the homicide, typically manifested by a loss of self-control.” People v. Roche, 98 N.Y.2d 70, 75 (2002). EED requires evidence of a subjective element, that defendant acted under an extreme emotional disturbance, and an objective element, that there was a reasonable explanation or excuse for the emotional disturbance. People v. Smith, 1 N.Y.3d 610, 612 (2004). The subjective element may be established through lay testimony. A defendant’s conclusory statements, like I “just snapped,” or “just lost it,” and “blacked out” (People v . McKenzie, 19 N.Y.3d 463, 466 [2012]), or I went “crazy” (People v. Diaz, 15 N.Y.3d 40, 46 [2010]) or “Seems like something snapped inside me, you know, bananas.” (People v. Moye, 66 N.Y.2d 887, 889 [1985]), suffice. Justice Cirigliano concluded that appellant’s statements during the videotaped confession that he “lost my mind” (V. 3, 9), had “just lost it” (V. 15), or “was out of [my] mind” (V. 4, 16, 18) warranted submitting EED to the jury. However, he recognized that because appellant had withdrawn his CPL 250 notice before trial commenced, the prosecution had tried the case under the good faith belief that CPL § 250.10 (2) banished EED from the trial. Hence, the People would be placed at 19 unfair disadvantage if they were not permitted to rebut EED. Accordingly, he followed the procedure that would have been in effect if CPL 250 notice had been given and decided that, if EED was going to be submitted, the prosecution would have the opportunity to rebut that defense. Appellant now assails that ruling on three fronts. He argues that (1) Justice Cirigliano incorrectly ruled that appellant’s request for the EED charge was in fact notice of intent to offer a psychiatric defense and implicated the provisions of CPL § 250.10 (appellant’s brief pp. 14-20); (2) Justice Cirigliano incorrectly reasoned that fairness to the People required affording them the opportunity to rebut EED before he submitted that defense to the jury (appellant’s brief pp. 20-24); and (3) the ruling violated his Fifth Amendment right against self incrimination by requiring him to choose between offering a fully-warranted jury charge on EED or consenting to the admission of Goldsmith’s testimony rebutting his defense (appellant’s brief pp. 24- 30). Appellant’s contentions are not preserved for review as questions of law and are without merit. Our argument will be facilitated by identifying a central flaw in appellant’s position before we address the specific arguments he raises in his brief. Appellant’s argument that he did not “offer” psychiatric evidence at trial founders because it fails to acknowledge all the statutory language. (See McKinney’s Statutes §§ 97 [“A 20 statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent”]; and 98 [“All parts of a statute must be harmonized with each other as well as with the general intent of the whole statute, and effect and meaning must, if possible, be given to the entire statute and every part and word thereof”]). CPL § 250.10 (1) defines psychiatric evidence, in pertinent part, as: (b) Evidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of extreme emotional disturbance as defined in paragraph (a) of subdivision one of section 125.25 of the penal law (emphasis added) Appellant argues that he did not “offer” the evidence on which his EED defense rested because the People introduced Exhibit 50, his videotaped confession, into evidence. But his argument fails to account for the language “in connection with” that modifies the meaning of the word “offer.” Here, the People offered the videotaped confession “in connection with” proving appellant’s guilt of murder. The People did not offer it “in connection with” proving or disproving EED because appellant had withdrawn his CPL 250 notice and CPL § 250.10 (2) barred EED from the trial. Thus, Exhibit 50 did not become evidence offered “in connection with” proving EED until appellant offered some of his statements during videotaped confession as the evidence that established the affirmative defense at the charge conference. See People v. 21 Wenzel, 133 A.D.2d 716, 716-17 (2d Dept. 1987) (EED is an affirmative defense which cannot be submitted to the jury unless the defendant offers proof, here through cross-examination of the prosecution witnesses). At that point, CPL § 250.10 became applicable, as the First Department held. People v . Gonzalez, 91 A.D.3d 454 (1st Dept. 2011) (“CPL 250.10 defines psychiatric evidence as, inter alia, “[e]vidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of extreme emotional disturbance” (CPL 250.10 [1] [b]). When defendant requested the EED charge based on his statements to the police, 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.”). But rather than comply with the legislative directive that afforded the prosecution the opportunity to rebut his spin on the evidence, appellant took the issue out of the case by withdrawing his request for the EED charge. Under those circumstances, including appellant’s frank concession that he withheld notice of his intent to offer the EED defense until the charge conference as a tactical ploy to deprive the People of their right to rebut his evidence of EED (see e.g. A. 359–65, 380-83, 387-92; T. 292-98, 313-16, 320-25), it becomes plain that appellant failed to preserve a question of law for this Court’s review. Moreover, because appellant chose 22 his tactical course for the purpose of frustrating the legislative policy of fairness to the prosecution promulgated in CPL § 250.10, this Court should reject his present arguments on jurisprudential grounds. Also, it is plain that by offering an affirmative psychiatric defense (albeit at the very end of the trial), appellant waived his Fifth Amendment objection to the rebuttal evidence. By Withdrawing His Request for the EED Charge, Appellant Waived His Claims for Review as Questions of Law Although appellant asked for an EED charge, by law he was not entitled to the instruction because he had withdrawn his 250.10 notice. CPL § 250.10 (2); People v Almonor, 93 N.Y.2d 571, 581 (1999). Thus, Justice Cirigliano gave him far more than he was entitled to when he agreed to give the EED charge upon condition that the People would be permitted to introduce Goldsmith’s testimony to rebut the belated EED claim. That ruling balanced the equities between the parties in the manner contemplated by CPL § 250.10 by permitting the People to offer the evidence that would have been admitted if appellant had given CPL 250 notice and presented his EED argument in the normal fashion. Accordingly, when appellant withdrew his request to submit EED to the jury in order to avoid allowing the People the rights accorded them by CPL § 250.10, he forfeited the right to complain that Justice Cirigliano erred in ruling the People could offer evidence rebutting the defense before the jury considered EED. 23 This Court has refused to consider an appellate claim raised in a similar procedural posture. In People v. Hall, 18 N.Y.3d 122 (2011), the defendant requested a missing witness charge but then withdrew his request after he was given the opportunity to interview the witnesses and to make a missing witness argument in summation. Under those circumstances this Court held he had not preserved his claim that the court should have given a missing witness charge. Hall, 18 N.Y.3d at 129, 132. Also, the First Department found a waiver under similar circumstances in People v. Jenkins, 44 A.D.3d 1 (1st Dept. 2007), aff’d, 11 N.Y.3d 282 (2008), where the defense filed a Clayton motion,6 then withdrew it pending the outcome of a sentence hearing: Shortly after the... hearing, defendant [violated terms of the plea agreement]. Thus, defendant's renewed Clayton motion, though purportedly preserved for purposes of appeal, is not before us. The notion that a defendant could simultaneously withdraw a motion and yet preserve for review the issue raised by the motion is fraught with contradiction. Contrary to defendant's claim, the issue is not preserved, and we decline to reach it in the interest of justice. Jenkins at 7 [emphasis added]. The Second Department likewise found a waiver of EED in People v . Garguilio, 57 A.D.3d 797, 798 (2d Dept. 2008). There (like here, see A. 387-89, 391, T. 320-22, 324) the defendant eschewed EED at trial in favor of a justification 6People v. Clayton, 41 A.D.2d 204 (2d Dept. 1973); CPL § 210.40. 24 defense. The Second Department found that he had waived the right to claim EED on appeal. Accordingly, this Court should find that appellant failed to preserve his claims concerning Justice Cirigliano’s ruling. Any other ruling will have the effect of rewarding appellant for his calculated attempt to frustrate the legislative policies promulgated in CPL § 250.10. Cf. People v. Leon, 121 A.D.2d 1, 6 (1st Dept. 1986) (“We hold that when the case against the defendant rests substantially on the testimony of a witness who is an accomplice as a matter of law, or who may be one as a matter of fact, it is best that the court offer to charge the accomplice-corroboration rule if not requested by the defendant. Should the defendant then reject the offer, his failure to request the instruction or object to its omission will more readily appear as a deliberate trial tactic, and interest of justice review pursuant to CPL 470.15 (6) will be virtually foreclosed.”). By Offering Evidence in Connection With the EED Defense, Appellant Waived His Fifth Amendment Rights Regarding the Rebuttal Evidence Weil proposed offering Goldsmith’s testimony solely to rebut the requested EED defense and requested a limiting instruction, pursuant to CPL § 60.55, that would bar any consideration of Goldsmith’s testimony as evidence in chief (A. 393-94; T. 326-29). Accordingly, it is extremely doubtful that appellant’s Fifth Amendment 25 rights would have been violated if Weil had presented Goldsmith’s evidence. See, Buchanan v Kentucky, 483 US 402, 423-24 (1987): This case presents one of the situations that we distinguished from the facts in [Estelle v Smith, 451 US 454 (1981)]. Here petitioner's counsel joined in a motion for Doctor Lange's examination pursuant to the Kentucky procedure for involuntary hospitalization. Moreover, petitioner's entire defense strategy was to establish the “mental status” defense of extreme emotional disturbance. Indeed, the sole witness for petitioner was Elam, who was asked by defense counsel to do little more than read to the jury the psychological reports and letter in the custody of Kentucky's Department of Human Services. In such circumstances, with petitioner not taking the stand, the Commonwealth could not respond to this defense unless it presented other psychological evidence. Accordingly, the Commonwealth asked Elam to read excerpts of Doctor Lange's report, in which the psychiatrist had set forth his general observations about the mental state of petitioner but had not described any statements by petitioner dealing with the crimes for which he was charged. The introduction of such a report for this limited rebuttal purpose does not constitute a Fifth Amendment violation [footnote omitted]. Moreover, since appellant’s statements to Goldsmith were not used against him at trial, his current ability to assert a Fifth Amendment violation is even further compromised. See United States v Patane, 542 US 630, 641-42 (2004) (“Potential violations [of the Fifth Amendment Miranda rule] occur, if at all, only upon the admission of unwarned statements into evidence at trial. And, at that point, the exclusion of unwarned statements is a complete and sufficient remedy for any 26 perceived Miranda violation”) (Plurality opinion of Thomas, Rehnquist, and Scalia; internal quotation and ellipsis marks omitted).7 But, assuming (as appellant argues at pp. 25-26 of his brief) that Brooks v. Tennessee, 406 US 605 (1972), and New Jersey v. Portash, 440 US 450 (1979) protect some atavistic Fifth Amendment right by making its invocation costly, appellant waived that right when he interposed a psychiatric defense included in CPL § 250.10 (1) (b). See Lee v. County Court of Erie County, 27 N.Y.2d 432, 439-41 (1971), cert. denied,404 US 823 (1971) (assertion of insanity defense waives Fifth Amendment rights); accord People v. Cruickshank, 105 A.D.2d 325, 330-31 (3rd Dept. 1985), aff’d, 67 NY2d 625 (1986) (defendant waives right to assert Fifth Amendment by asserting EED defense). In other words, because appellant’s CPL 250 notice was in effect when he spoke to Goldsmith, and because he had been warned that his statements to the psychiatrists were not confidential and could be used at trial (A. 370; T. 303, PM 11; Buchanan v. Kentucky, 483 US at 422; Estelle v. Smith, 451 US at 466-67 [Fifth Amendment holding limited to use of defendant’s made without an awareness he was assisting the state]; accord Brown v. Butler, 876 F2d 427, 430 [5th 7Because appellant withdrew his request for the EED charge, Goldsmith did not testify. Thus, we cannot know the extent (if any) that his opinion, as articulated in court, might have relied on appellant’s statements during their interview about the crime (see A. 366-68; T. 299-301). Accordingly, appellant’s present claims of a Fifth Amendment violation have an aroma of mootness about them that counsels in favor of finding them unpreserved for review as questions of law. 27 Cir 1989]), any Fifth Amendment right that appellant could have asserted during the interview was waived as a matter of law. Then, when appellant offered the videotaped confession in support of his EED defense (in effect reinstating his withdrawn CPL 250 notice, Gonzalez at 695), he again waived any Fifth Amendment right he could have asserted at trial.8 Accordingly, this Court should conclude that appellant has no valid Fifth Amendment objection to the rebuttal evidence. The Ruling Permitting the People to Rebut Appellant’s EED Defense Comports with the Fairness Principles that were Enacted by CPL § 250.10 This Court has thoroughly explicated the legislative purposes enacted by CPL § 250.10. People v. Berk, 88 N.Y.2d 257, 262-65 (1996) traced its legislative history to its predecessor in the Code of Criminal Procedure and found that it was intended to “rectify” the situation where the People are placed at “an unfair disadvantage” by the surprise interposition of a psychiatric defense at trial. Thus the statute’s “primary aim” is to give the People the opportunity to acquire evidence to rebut the defense at trial. This court concluded, “ Inasmuch as the notice requirement was designed to allow the People an opportunity to obtain any mental health evidence necessary to refute a defense of mental infirmity, it follows that it applies to any mental health 8Contrary to the argument, at ft. 4 p. 26 of appellant’s brief, the fact that the CPL 250 notice should be served within thirty days of the entry of a not guilty plea does not effect a waiver of his Fifth Amendment right by itself. The waiver occurs only when a defendant offers psychiatric evidence at trial. Presumably, this decision will be made after he has heard the People’s evidence and can make an informed choice about whether a waiver of his Fifth Amendment right is in his best interest. 28 evidence to be offered by the defendant in connection with such a defense.” Berk at 265 (emphasis added); accord People v. Diaz, 15 N.Y.3d at 46 (emphasis supplied by Diaz court). Plainly, appellant’s statements on the videotape that he “lost my mind” (V. 3, 9), had “just lost it” (V. 15), or “was out of [my] mind” (V. 4, 16, 18) are “mental health evidence” as described by Berk. Later, in People v Almonor, 93 N.Y.2d at 581, the court stated that the legislature intended that compliance with CPL 250 notice is the sine qua non to the assertion of the EED defense: We conclude that because defendant did not comply with CPL 250.10, the trial court acted within its discretion in precluding defendant as it did. Indeed, the statute contemplates and mandates preclusion for failure of compliance. The statute is not cast so as to allow a defense or affirmative defense to be introduced when notice is given; it is cast in terms that bar the defense unless notice is given. People v. Diaz, 15 N.Y.3d at 45, endorses (in broad terms) the procedure that Justice Cirigliano employed in this trial: Under CPL 250.10 (2), a defendant is precluded from raising any defense predicated on a mental infirmity, including extreme emotional disturbance, if the defendant fails to file and serve a timely notice of intent to present psychiatric evidence. The trial court possesses broad discretion, however, to grant permission to submit a late notice in the interest of justice at any time prior to the close of evidence. When notice is given under CPL 250.10 (2), the People may apply for an order directing the defendant to submit to an examination by a psychiatrist selected by the People [some citations to § 250.10 omitted]. 29 Here, in effect, Justice Cirigliano permitted appellant to file late CPL 250 notice, and then – because the prosecution psychiatrist had examined appellant before trial – allowed them to use that examination as contemplated by the legislature. Indeed, that solution was particularly appropriate, because appellant’s pretrial withdrawal of his CPL 250 notice, and eleventh-hour-attempt to assert his EED defense based on the argument that he had not offered evidence in support of the affirmative defense was manifestly a tactical endeavor designed to “end-around” CPL § 250.10’s provisions and nullify the legislative policy that underlies the CPL 250 notice requirements (see A. 359–65, 380-83, 387-92; T. 292-98, 313-16, 320-25; PM. 10). Under these circumstances, as in People v. Carrion, 54 A.D.3d 640 (1st Dept. 2008), Justice Cirigliano had the discretion to permit the prosecutor to reopen the People’s case to meet the new interjected defense. See also People v. Whipple, 97 N.Y.2d 1, 7-8 (2001) (noting the People’s motion to reopen is more justified when the need to [dis]prove a particular element was unexpected, and decrying the defense’s “gotcha” tactics); People v. Hill, 10 A.D.3d 310, 311-12 (1st Dept. 2004), aff’d 4 N.Y.3d 876, 877 (2005) (court properly precludes insanity defense when defendant fails to give CPL 250 notice for tactical reasons; there is no constitutional right to indecision or gamesmanship); People v Brown, 4 A.D.3d 886, 887-89 (4th Dept. 30 2004) (evidence pertaining to defendant’s credibility is offered in connection with a psychiatric defense; due to defendant’s failure to comply with CPL 250 notice, court properly barred the evidence). Appellant’s attempts to justify his trial tactic by claiming that in good faith he did not know that Weil would introduce the videotaped confession (appellant’s brief, p. 16) should be rejected as a factual matter, since Weil told him that he would be using the evidence (A. 338; T. 321), and – if asked – would have told him that he would use the evidence even if appellant planned to use it to support EED (A. 391; T. 324). Additionally, it should be rejected on the law, as indecision does not excuse a failure to give CPL 250 notice. See Berk, 88 NY2d at 266. Thus, as a matter of law, there was no unfairness worked on appellant at this trial. If appellant disagrees with that conclusion, he should address his arguments to the Legislature rather than this Court. Appellant’s observation, citing People v. Davis, 136 Misc.2d 1076, 1080 (Sup. Ct. N.Y. Co. 1987), that his failure to give CPL 250 notice does not preclude him from offering an EED defense without offering psychiatric evidence (appellant’s brief, p. 22) may be true, but that rule, as Justice Cirigliano recognized, does not preclude the 31 People from rebutting that defense by whatever evidence is available.9 As, the Appellate Division correctly observed: To permit the defense to recharacterize the defendant's statement and offer it as evidence of EED and not permit the People the opportunity to present relevant evidence to rebut the offer, would open up a Pandora's box that would eviscerate the very intent and spirit of the law, undermine the concept of justice and be utterly unfair to the People. (People v Berk, 88 NY2d 257 [1996].) Further, it would create a precedent that would permit the defense to avoid their obligation to give notice under section 250.10, deny the People their right to examine the defendant and permit the EED to go unchallenged. This could not have been the intent of the Legislature, nor the spirit of the law. The very essence of CPL 250.10 seeks to insure that the defense and the People are afforded a fair trial and safeguard the orderly and expeditious disposition of cases. (A. 617-18). Gonzalez at 695-96. In sum, appellant was deprived of no enforceable right when Justice Cirigliano blocked his attempts to “end-around” (PM 10) CPL § 250.10. This Court should reject his arguments to the contrary. CONCLUSION THE JUDGMENT APPEALED FROM SHOULD BE AFFIRMED IN ALL RESPECTS. 9Because appellant did not refuse to be examined by the prosecution’s psychiatrist, the provisions of CPL § 250.10 (5) are simply inapplicable. 32 Respectfully submitted, ROBERT T. JOHNSON DISTRICT ATTORNEY BRONX COUNTY PETER D. CODDINGTON Chief Appellate Attorney of Counsel July 16, 2013 33