Mathew S. Miller, for appellant.
Peter D. Coddington, for respondent.
Under CPL 250.10, a defendant must provide notice of intent to offer evidence in connection with the affirmative defense of extreme emotional disturbance (EED). We have held that a defendant seeking to admit expert or lay testimony related to an EED defense must comply with the notice requirement before that defense may be submitted to the jury (see People v Diaz, 15 N.Y.3d 40, 46-47 ; People v Berk, 88 N.Y.2d 257, 263 ). The question presented here is whether CPL 250.10 applies where the defendant offers no evidence at trial but requests an EED jury charge based solely upon evidence presented by the People. We conclude that statutory notice is not required under these circumstances. I.
On May 9, 2006, defendant bludgeoned his boss, Wilfredo Pinto Lebron, Jr., to death with a hammer and dismembered his body. Police arrested defendant after Lebron's girlfriend discovered his severed torso in a garbage can outside her apartment building. Defendant subsequently confessed to killing Lebron and took police to the locations in the Hunts Point area of the Bronx where he had discarded the remaining body parts.
The following day, defendant signed a written statement prepared by a police detective that described how the crime had transpired. According to the statement, Lebron had first attacked defendant on the night of the killing by punching defendant in the face and breaking a wooden bookshelf across his back. A neighbor broke up the altercation, but when Lebron tried to instigate another fight, defendant went to his room to retrieve a hammer that, by his account, he needed to defend himself against Lebron. When Lebron confronted defendant again, he struck Lebron in the head with the hammer. Lebron tried to run into a bedroom, but defendant followed and hit Lebron's head several more times with the hammer until Lebron stopped moving. Defendant then dragged Lebron's body to the bathroom and dismembered it using knives from the kitchen. He placed the body parts into separate garbage bags and, after cleaning up the apartment, deposited the bags into different garbage cans in Hunts Point.
After executing the statement, defendant gave a videotaped confession to a Bronx County Assistant District Attorney. Defendant's account of the events was essentially the same as what he described in the written statement. However, defendant stated several times during the confession that he had "lost [his] mind" during the fight with Lebron and was "out of [his] mind" while he dismembered Lebron's body. Defendant further claimed that Lebron, who had been defendant's boss at his construction job, had physically and mentally abused him every day for weeks prior to the killing. Defendant was subsequently charged with murder in the second degree (Penal Law § 125.25), manslaughter in the first degree (id. at § 125.20), removal of a body (New York City Administrative Code § 17-201), and dissection of the body of a human being (Public Health Law § 4210-a).
Before trial, defendant's attorney served on the People and filed with the court a notice of intent to proffer psychiatric evidence in connection with an EED defense (see CPL 250.10 ; see id. at  [b]). Defendant submitted to an examination by the People's psychiatrist, Dr. Goldsmith (see id. at ), and was also examined by his own psychiatrist. The psychiatric reports were later exchanged between the parties (see id. at ).
Subsequent to the examinations but prior to trial, defense counsel informed the prosecutor that defendant would not be presenting any psychiatric evidence at trial and that counsel would withdraw the CPL 250.10 notice. Defense counsel never formally withdrew the notice, however, and never informed the trial court of his intention to do so. When the prosecutor later told defense counsel that he would seek to introduce the video confession into evidence, defense counsel represented that defendant planned to assert a justification defense.
At trial, the People introduced defendant's written statement and the videotaped confession into evidence during their case in chief. The People also presented testimony from several witnesses, including the police detectives who interviewed defendant and a medical examiner who determined that Lebron's death was caused by a combination of ten hammer blows to the head and two stab wounds to the heart . The defense rested without presenting a case or cross-examining any of the People's witnesses regarding defendant's mental state.
At the charge conference conducted prior to summations, defense counsel requested that the jury be instructed on EED. The trial court agreed that the evidence presented by the People, in particular the videotaped confession, established the elements of an EED defense and defendant was therefore entitled to a jury instruction. The prosecutor opposed the request, stating that he had been led to believe that defendant's CPL 250.10 notice had been withdrawn and that defendant would rely on a justification defense rather than an EED defense. The prosecutor asserted that, now that defendant sought an EED charge, the People had the right to rebut that charge with testimony by Goldsmith, who had opined, based on his examination of defendant while the CPL 250.10 notice was still in effect, that defendant had killed Lebron out of anger but had not lost control of his actions. Defense counsel countered that the People were not permitted to rebut their own evidence, that CPL 250.10 does not apply where a defendant has offered no psychiatric evidence, and that the introduction of Goldsmith's testimony, to the extent that it relied on statements defendant had made during the psychiatric examination, would violate his Fifth Amendment privilege against self-incrimination.
The trial court ruled that it would submit an EED charge to the jury on the condition that, out of fairness, the People be given the opportunity to call Goldsmith to rebut the EED defense. Defense counsel, in response to the court's ruling, withdrew his request for the charge, and the prosecutor subsequently declined to call Goldsmith, stating that he had no reason to do so if defendant was no longer requesting an EED charge. The jury later convicted defendant of second-degree murder.
Defendant moved to set aside the verdict, arguing, as relevant here, that the trial court erred by failing to give the EED charge when the People's evidence supported that charge, and by ruling that defendant was only entitled to the charge if the People were permitted to present Goldsmith's testimony. Supreme Court denied the motion, holding that defendant's request for an EED charge served, essentially, as CPL 250.10 notice that defendant intended to offer his videotaped statements in support of an EED defense, and thus, the People were entitled to call Goldsmith to rebut that defense (see 26 Misc.3d 687, 695 [Sup Ct, Bronx Cty 2009]).
The Appellate Division affirmed (91 A.D.3d 453 [1st Dept 2012]). The court agreed with the trial court that "defendant's request for an EED charge [w]as the equivalent of a 'notice of intent to proffer psychiatric evidence' under CPL 250.10" (91 A.D.3d at 454). The court explained that "[w]hen defendant requested the... 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" (id.). Noting that we had previously construed CPL 250.10 "as applicable to ' any mental health evidence to be offered by the defendant in connection with' a defense of extreme emotional disturbance, " the court determined that "[t]his broad statutory mandate encompasses, in this case, the request for an EED charge based on the videotape ...