Justice William McCarthy
Wells appealed from a judgment convicting him of second degree murder, alleging ineffective assistance of counsel based on his trial attorney’s failure to give notice of intent to offer psychiatric evidence for an affirmative defense of extreme emotional disturbance (EED). Counsel did not provide notice, but raised EED in his opening statement. The County Court denied defense counsel’s requested EED defense charge for lack of notice, and for lack of proof to support the charge. The court noted counsel’s actions undermined his ability to have the jury consider the EED defense. It stated a single error may constitute ineffective assistance if a defendant showed the error was “so egregious and prejudicial” as to deprive him of a fair trial. The court found while counsel’s failure to give notice of intent may have been erroneous, it also noted Wells’ testimony was insufficient to support a jury finding that he established the elements of EED. Thus, the record did not support the defense, and Wells’ own conduct in refusing to answer questions and testify regarding the homicide events prevented the jury from determining his state of mind during the commission of the crime. Hence, counsel’s error in failing to give notice was irrelevant, and Wells was not entitled to a new trial.