4 No. 20
The People &c.,
Respondent, v. Patrice Smith,
Appellant.
2004 NY Int. 13
February 17, 2004
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
Robert B. Hallborg, Jr., for appellant. Raymond C. Herman, for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Defendant was convicted of one count of intentional murder (Penal Law § 125.25[1]), one count of felony murder (Penal Law § 125.25[3]) and one count of robbery (Penal Law § 160.15[1]).
There was evidence adduced at trial that the 16-year-old
defendant and a co-defendant went to the home of the 71-year-old
victim with the specific intent to rob him, then choked and
suffocated him to death and stole his automobile.
Defendant sought to establish that she was under an
extreme emotional disturbance because of her sexual relationship
with the deceased over a period of months and his sexual advances
on the night of the killing. She argued that her own testimony
and that of other lay persons, but no expert psychiatric
evidence, was sufficient to establish her extreme emotional
disturbance. The trial court sustained the People's objection to
such testimony because of defendant's failure to provide pretrial
notice pursuant to CPL 250.10(2). The Appellate Division
affirmed without deciding whether notice should have been
required, concluding that defendant would not have been entitled
to a charge on extreme emotional disturbance in any event. CPL 250.10(2) states, "Psychiatric evidence is not
admissible upon a trial unless the defendant serves upon the
people and files with the court a written notice of his intention
to present psychiatric evidence." Once such notice is served,
the People have the right to an examination of the defendant by a
psychiatrist or a psychologist. While extreme emotional
disturbance can be established without psychiatric testimony
( People v Roche, , 98 NY2d 70, 76 [2002]; People v Moye, , 66 NY2d 887, 890 [1985]), defendant “cannot establish an extreme
emotional disturbance defense without evidence that he or she
suffered from a mental infirmity not rising to the level of
insanity at the time of the homicide, typically manifested by a
loss of self-control" ( People v Roche, 98 NY2d at 75). The
defense requires proof of a subjective element, that defendant
acted under an extreme emotional disturbance, and an objective
element, that there was a reasonable explanation or excuse for
the emotional disturbance ( People v Moye, 66 NY2d at 890). Here, there was an insufficient offer of proof by
defendant in support of an extreme emotional disturbance
defense. Defendant's proffered testimony did not establish that,
at the time of the homicide, she was affected by her longstanding
sexual relationship with the deceased to such a degree that a
jury could reasonably conclude that she acted under the influence
of an extreme emotional disturbance ( see People v White, , 79 NY2d 900, 903 [1992]). Thus, we need not decide whether pretrial
notice of defendant's proffered testimony was required. Defendant's challenge to the sufficiency of the
evidence supporting her felony murder conviction is without
merit.
