Barry Kamins
Barry Kamins ()

For the second time this term, the Court of Appeals has addressed the prosecution’s strategy in presenting evidence and the legal consequences that will flow from that choice. Earlier this term, in People v. Kevin W., the court ruled that a prosecutor will not get a “second bite of the apple” if she miscalculates and fails to present sufficient evidence at a pretrial hearing.1 In People v. Gonzalez,2 the court has now held that, should a prosecutor choose to offer evidence sufficient to warrant charging a jury on the defense of extreme emotional disturbance (EED), the defendant can obtain a charge from the court without having to present his own evidence and without having to file statutory notice pursuant to CPL 250.10. The court also, for the first time, more sharply defined a defendant’s burden in establishing this affirmative defense.

This decision completes a line of cases by the court addressing the procedural complexities of the EED defense, in particular, the notice required under CPL 250.10. This statutory notice alerts the prosecutor and the court that the defendant intends to offer psychiatric evidence in connection with an EED defense. The court began this series of decisions by holding that an EED defense can be established by either expert or lay evidence.3

The court next addressed what type of evidence triggered the CPL 250.10 notice, ruling that any mental health evidence to be offered by the defendant in connection with the defense required notice.4 The defendant must serve statutory notice when offering expert or lay testimony, through his or her own testimony or other persons.5 More recently, the court acknowledged in People v. McKenzie that an EED defense can be established by the People’s evidence.6 Finally, Gonzalez addresses the question left open in McKenzie by holding that no notice need be filed where the defendant relies upon the People’s evidence supporting an EED defense.

Gonzalez Case

In Gonzalez, testimony revealed that the defendant rented a room in the apartment of his employer’s girlfriend. The defendant’s employer would visit the apartment often and would frequently physically and verbally abuse the defendant. On May 9, 2006, the defendant came home and found his boss, who had been drinking, present. The employer assaulted the defendant by punching him in the face and breaking a wooden bookshelf across his back.

After a neighbor broke up the altercation, the boss confronted the defendant again and the defendant went to his room and retrieved a hammer from his tool bag. When confronted again by his boss, the defendant struck him in the head with the hammer. The employer ran into his girlfriend’s bedroom followed by the defendant, who continued to hit him with a hammer until the boss stopped breathing.

The defendant dragged the body to the bathroom and dismembered it using knives he found in the kitchen. He placed the body parts into separate garbage bags and, on his bicycle, took them to various locations in the Bronx. Later that night, the boss’ girlfriend discovered a part of her boyfriend’s body in a garbage can outside her building, and called the police. Shortly thereafter, the defendant was arrested, and he subsequently gave two inculpatory, but slightly different, statements.

The first statement, containing details about how the crime occurred, was written and signed by the defendant, and given to the police. After executing the statement, the defendant gave a confession to an assistant district attorney which was videotaped.

In the second statement, the defendant recounted the same details he had given in the written statement. However, the defendant also stated that his employer had abused him both physically and mentally every day for weeks prior to the killing. In addition, the defendant stated that during the fight with his employer he had “lost [his] mind” while he dismembered the body.7

Before trial, the defendant’s attorney served on the prosecution a notice of intent to offer psychiatric evidence in connection with an EED defense, pursuant to CPL 250.10(2). The defendant was examined by the People’s psychiatrist, Dr. Goldsmith, and his own psychiatrist. Prior to trial, however, the defense informed the prosecutor that psychiatric evidence would not be presented and, as such, the defense intended to withdraw the CPL 250.10 notice; rather, a justification defense would be offered. However, defense counsel never formally withdrew the notice and never informed the trial court of his intention to do so.

At trial, in addition to presenting testimony from several witnesses, the prosecution introduced the defendant’s written and videotaped statements into evidence during its case in chief. The defense rested without calling any witnesses or cross-examining8 any of the People’s witnesses regarding the defendant’s mental state.

At the charge conference, the defense requested an EED charge but the prosecution objected, arguing that it had been led to believe that the CPL 250.10 notice had been withdrawn. The court granted the request to charge an EED defense based upon the evidence presented by the People and, in particular, the videotaped confession. The People responded with an application to reopen their case and present the testimony of Dr. Goldsmith who had opined that the defendant had killed his boss out of anger but had not lost control of his actions.

The trial court ruled that it would charge the jury on the defense of EED provided that, out of fairness, the People be permitted to call Dr. Goldsmith to rebut the EED defense. As a result, the defense withdrew its request for the charge and the prosecution declined to present the testimony of Dr. Goldsmith, stating that it would serve no purpose since the defense was no longer requesting an EED charge. The defendant was convicted of second-degree murder and the conviction was affirmed by the Appellate Division.

Court of Appeals

In reversing, the Court of Appeals held that no CPL 250.10 notice was required where the defendant presented no evidence of EED and instead relied on the People’s case to support the submission of his EED defense to the jury. However, in reversing and ordering a new trial, the Court of Appeals, in both its unanimous decision and in oral argument, discussed the larger issue of trial strategy and resulting legal consequences. Writing for the court, Judge Sheila Abdus-Salaam noted that the prosecution had made a tactical decision to offer the videotaped statement into evidence in addition to the written statement. The videotaped confession contained statements that could support an EED defense and the jury charge while the written statement did not.

Abdus-Salaam opined that “[d]eciding which evidence to include in the case in chief is often a matter of strategy, and in this case, the People made the strategic decision to admit the videotape into evidence.”9 During oral argument, Judges Jenny Rivera and Susan Phillips Read also alluded to the fact that the People, knowing the legal ramifications of the defendant’s videotaped confession, had made a choice to offer it in evidence.10

Once the videotaped confession was offered into evidence, it triggered an evidentiary principle that permits a defendant to rely entirely on the People’s evidence to raise a defense and to submit a request to charge. In addition, as the court noted with respect to an EED defense, and notwithstanding the CPL 250.10 notice, “the Legislature did not necessarily intend that a defendant be forced to disclose, ahead of trial, that his or her trial strategy depends entirely on evidence to be offered by the People.”11

In the past, the court had held, both with respect to defenses and affirmative defenses, that a defendant could rely on the People’s evidence to obtain a jury charge. In People v. Steele,12 the court held that the defendant was entitled to a jury charge on justification based upon the testimony of the People’s eyewitnesses. In People v. Smith,13 the defendant’s confession, admitted into evidence as part of the People’s direct case, contained a statement to the effect that the weapon defendant was carrying during a robbery was a toy gun. This triggered a right to assert the affirmative defense that the displayed firearm was not a loaded firearm and the court reversed this conviction because the trial judge had refused to charge that defense. Obviously, a jury may reject the affirmative defense if it does not find the defendant’s statement credible.14

While the above cases applied these evidentiary principles, in Gonzalez the court has explained its rationale for doing so in greater detail. The court noted that EED, like other affirmative defenses requires a defendant to establish the defense by a preponderance of the evidence.15 Under that standard, the evidence offered “must be of such convincing quality as to outweigh any evidence to the contrary.”16 Other affirmative defenses include entrapment, duress, not responsible by reason of mental disease or defect, and lack of culpable participation in a felony-murder.

In the context of the EED defense, with respect to the notice requirement, the court explained that “offering evidence” and “presenting evidence” are all “active” terms that suggest a defendant must affirmatively seek to introduce evidence. Thus, unless a defendant “offers” or “presents” evidence, there is no requirement for a defendant to serve a CPL 250.10 notice.17 Finally, requesting an EED charge based only on the People’s proof does not constitute “offering evidence.”

Providing Clarity

While the court specifically applied this analysis to the language in CPL 250.10, the court’s reasoning will also serve to define more clearly a defendant’s burden of establishing an affirmative defense. Although the court has in the past alluded to affirmative defenses in general, it has never discussed, to any great degree, how a defendant may carry the burden of establishing a defense. The court’s reasoning makes clear that with respect to EED, as well as other affirmative defenses, a defendant may rely upon the evidence proffered by the People without affirmatively introducing evidence.

Finally, the court held that the trial court should have simply submitted the EED charge to the jury without conditioning it upon the introduction of Dr. Goldsmith’s testimony. Once the need for the statutory notice was eliminated, it was an abuse of discretion to permit the People to introduce the doctor’s testimony.

In Kevin W. and in Gonzalez, the court has addressed the prosecution’s strategy in choosing which evidence to offer and the legal consequences of that strategy. In doing so, it has provided a practical as well as substantive approach to criminal proceedings. After Kevin W., prosecutors are now aware that if they miscalculate in choosing not to call a needed witness, a suppression court does not have the discretion to reopen the hearing to permit them to offer additional evidence, in order to cure a defect in proof. After Gonzalez, prosecutors are now aware that if they choose to offer evidence that supports an EED defense, a defendant may rely upon that evidence without having to serve statutory notice.

Barry Kamins is a Supreme Court Justice, chief of policy and planning for the state courts, and administrator for the New York City Criminal Court.


1. People v. Kevin W., 22 NY3d 287 (2013).

2. ___ NY3d ___, 2014 NY Slip Op 00896 (2014).

3. People v. Moye, 66 NY2d 887 (1985).

4. People v. Berk, 88 NY2d 257 (1996).

5. People v. Diaz, 15 NY3d 40 (2010).

6. People v. McKenzie, 19 NY3d 463 (2012) (prosecutor’s argument that defendant’s failure to provide CPL 250.10 notice was not preserved).

7. 2014 NY Slip Op 00896 *2

8. See People v. Wenzel, 133 AD2d 716 (2d Dept. 1987) (defendant endeavored to prove an EED defense by cross-examining the People’s witnesses).

9. 2014 NY Slip Op 00896 *8.

10. Transcript of oral argument @8-10.

11. 2014 NY Slip Op 00896 *9.

12. 26 NY2d 526 (1970).

13. 55 NY2d 888 (1982).

14. See, People v. Gonzalez, 48 AD3d 698 (2d Dept 2008).

15. PL 25.00(2).

16. CJI 2d (NY) Defenses; Insanity.

17. See People v. Wenzel, 133 AD2d 716 (2d Dept 1987) (defendant endeavored to prove an EED defense by cross-examining the People’s witnesses).