Defendant Entitled to Jury Charge on Extreme Emotional Disturbance Despite Lack of CPL 250.10 Notice

In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals determined the defendant’s request for an “extreme emotional disturbance” jury charge should have been granted, in spite of the defendant’s withdrawing his CPL 250.10 notice re:  offering mental health evidence. At trial the defendant did not introduce any evidence of or cross-examine any witness about the defendant’s mental state. The evidence of defendant’s mental state was contained in defendant’s videotaped confession, which was presented at trial by the People. Because the CPL 250.10 notice concerns only mental-state evidence “offered” by the defendant, the absence of the notice did not preclude the extreme-emotional-disturbance jury charge:

A defendant is entitled to a jury charge on EED where the evidence, viewed in the light most favorable to the defendant, is sufficient for the jury “to find by a preponderance of the evidence that the elements of the affirmative defense are satisfied” … . Accordingly, the trial court must grant the defendant's request for an EED charge if the jury could reasonably conclude from the evidence that, at the time of the homicide, the defendant “was affected by an extreme emotional disturbance, and that [the] disturbance was supported by a reasonable explanation or excuse rooted in the situation as he perceived it” … . This is true even if the “[d]efendant did not testify or otherwise present evidence” and the “request for an extreme emotional disturbance charge [i]s based entirely on proof elicited during the People's case” … . * * *

In its present form, CPL 250.10 requires notice when a defendant “inten[ds] to present psychiatric evidence” … , which the statute broadly defines as “[e]vidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of,” as relevant to this appeal, “extreme emotional disturbance” … . The Legislature did not specify what qualifies as mental health evidence “offered by the defendant”; however, to “offer evidence,” as that legal phrase is traditionally understood, means to put forth evidence and “demand its admission” (Black's Law Dictionary 1081 [6th ed 1991]; see Black's Law Dictionary [9th ed 2009], proffer [“To offer or tender (something, esp. evidence) for immediate acceptance”]). Additionally, the frequently used meaning of “present” is “to bring or introduce into the presence of someone” (MerriamWebster's Collegiate Dictionary 982 [11th ed 2003]). The Legislature's use of these “active” terms suggests that it intended the notice requirement to apply where the defendant affirmatively seeks to admit psychiatric evidence in support of an EED defense. People v Gonzalez, 12, CtApp 2-13-14