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WHETHER TO INSTRUCT THE JURY ON THE EXTREME EMOTIONAL DISTURBANCE (EED) AFFIRMATIVE DEFENSE MUST BE DETERMINED BASED SOLELY UPON THE PEOPLE’S PROOF AT TRIAL; IT WAS (HARMLESS) ERROR FOR THE COURT TO MAKE THAT DETERMINATION PRIOR TO TRIAL (FOURTH DEPT).

The Fourth Department noted that the court committed (harmless) error when it ruled, prior to the trial, that the jury would not be instructed on the extreme emotional disturbance (EED) affirmative defense:

… [T]he court erred in determining prior to trial that it would not charge the jury on the affirmative defense of EED. A defendant may be entitled to a jury charge on the affirmative defense of EED based solely on the People’s proof … , and thus it was error for the court to make that ruling without any consideration of the People’s evidence. People v Taglianetti, 2020 NY Slip Op 02561, Fourth Dept 5-1-20

 

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