APPEAL by the defendant from a judgment of the Supreme Court (John M. Leventhal, J.), rendered February 14, 2005, in Kings County, convicting him of murder in the second degree, criminal contempt in the first degree (two counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
The opinion of the court was delivered by: Skelos, J.P.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PETER B. SKELOS, J.P., STEVEN W. FISHER, THOMAS A. DICKERSON, ARIEL E. BELEN, JJ.
The principal issues presented on this appeal are whether, pursuant to CPL 250.10, a defendant who intends to interpose an affirmative defense of extreme emotional disturbance is required to serve and file a notice of intent to proffer psychiatric evidence and to submit to an examination by a psychiatrist designated by the People, where the defendant only intends to present lay testimony in support of that defense.
On June 4, 2000, the defendant strangled to death Felipa Santana, his former girlfriend. At trial, the defendant testified that on the night of the murder, he visited Santana at her Brooklyn apartment where he beat and strangled her after an argument. According to the defendant, Santana told him that the younger of their two children had been fathered by another man, which caused him to go "crazy."
The older of the two subject children, their daughter, testified that she and her brother were in the room when their mother was killed. After the murder, the defendant took the children and brought them to the home of a relative. The defendant then fled to Florida where he was apprehended more than a year later, as s result of a traffic violation.
On February 18, 2004, immediately prior to jury selection, the People made a Molineux application (see People v Molineux, 168 NY 264). The People argued that the defendant had been incarcerated for a lengthy period of time because of a prior assault on Santana and that two weeks before the murder, the defendant had been released from jail. The People argued that the underlying facts of the prior assault and the defendant's lengthy incarceration provided the defendant with a motive for the killing and showed his intent to murder the victim.
Prior to deciding the application, the court informed defense counsel that in order to comply with the balancing test of Molineux, the defendant would have to advise the court of his defense. At that time, defense counsel stated that the defendant was not denying that he murdered or intended to murder Santana. However, defense counsel averred that the defendant murdered Santana under circumstances evincing extreme emotional disturbance (hereinafter EED). The People objected to any evidence of EED because the defendant had failed to serve and file a notice of intent pursuant to CPL 250.10(2) (see People v Berk, 88 NY2d 257, cert denied 519 US 859). Defense counsel argued that he was not required to give such notice because he only intended to proffer lay testimony on that defense, to wit, the defendant's own testimony, and therefore, notice was not required. The People disagreed.
The Supreme Court granted the defendant leave to serve a late notice of intent upon finding that the defendant's failure to serve and file the notice was not willful (see CPL 250.10). Thereafter, the People requested that the defendant be examined by their own expert as to the viability of the affirmative defense of EED. The defendant objected, contending that the People were not entitled to have him examined by the People's expert because the defendant intended to establish the EED defense through lay testimony only.
On February 20, 2004, after hearing argument, the Supreme Court, in an oral ruling, stated that notice had been filed, directed the examination of the defendant by the People's psychiatric expert to proceed so as to expedite the trial, and adjourned the matter pending its decision as to the "legitimacy of such grant" (People v Diaz, 3 Misc 3d 686, 691 n 4 [Sup Ct, Kings County, Leventhal, J.]).
Subsequently, in its written decision, the Supreme Court determined the admissibility and permissible scope of the People's expert testimony (see People v Diaz, 3 Misc 3d 686). The Supreme Court found, inter alia, that the court-ordered examination did not violate the defendant's Fifth Amendment right against self-incrimination because the testimony of the People's expert would only be admissible if the defendant waived that right by testifying to a mental state or to facts from which the jury could infer his EED defense (id. at 696). The Supreme Court also opined that even in the absence of a court-ordered examination, the People could have had a ...