People v. Tabarez

113 A.D.2d 461, 497 N.Y.S.2d 80, 1985 N.Y. App. Div. LEXIS 52944

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1985
• Status: Published

Opinions

OPINION OF THE COURT

Gibbons, J.

Defendant was convicted, following a jury trial, of attempted murder in the first degree, robbery in the first degree and criminal possession of a weapon in the third degree. On this appeal, the principal issue is whether the County Court erred in refusing his request to instruct the jury on the affirmative defense of "extreme emotional disturbance” set forth in Penal Law § 125.27 (2) (a), which would have had the effect of permitting the jury to find him guilty of attempted manslaughter in the first degree (Penal Law §§ 110.00, 125.20 [2]) rather than attempted murder in the first degree in connection with a shooting incident in the City of New Rochelle on the evening of February 18, 1981. In our view, this question must be answered in the affirmative. Here, the "threshold” requirement entitling defendant to the charge was met, i.e., there was "sufficient credible evidence for the jury to determine that, by a preponderance of the evidence, the elements of the defense [were] established” (see, People v Moye, 66 NY2d 887,890, n). Accordingly, the ensuing conviction of attempted murder in the first degree should be reversed and the case remitted for a new trial on that count of the indictment. As so modified, the judgment should be affirmed.

Penal Law § 125.27 (2) (a) pertinently provides as follows:

"In any prosecution [for murder in the first degree], it is an affirmative defense that:

"(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime except murder in the second degree” (cf. Penal Law § 125.25 [1] [a]).

Initially, we note that the language of Penal Law § 125.27 (2) (a) specifically indicates that the defense is applicable only to murder in the first and second degrees. Nevertheless, we find that the defense is applicable to attempted murder in the first degree even in the absence of statutory language so indicating. Based upon rules of construction applicable to the Penal Law, i.e., it is not to be strictly construed, but rather construed "according to the fair import of [its] terms to promote justice and effect the objects of the law” (Penal Law § 5.00; People v Teicher, 52 NY2d 638, 647), we conclude that a defendant, acting under the influence of extreme emotional disturbance, who shoots at a police officer and misses, should not be convicted of a class A-l felony, while he would be subject only to conviction for a class B felony had his bullet found its mark and killed the officer (see, Penal Law §§ 125.20, 125.25, 125.27, 110.05; cf. People v Lanzot, 67 AD2d 864, appeal dismissed 49 NY2d 796). Such a construction would defeat both the manifest purpose of section 125.27 to protect police officers, by inadvertently rewarding completed attempts resulting in death, and the purpose of the defense which is "to allow the finder of fact the discretionary power to mitigate the penalty when presented with a situation which, under the circumstances, appears to them to have caused an understandable weakness in one of their fellows” (People v Casassa, 49 NY2d 668, 680, cert denied 449 US 842).

Turning to the evidence, and viewing it most favorably to the accused (see, People v Moye, supra; People v Watts, 57 ; People v Vera, 94 AD2d 728, 729), it appears that defendant left his home on February 18, 1981 with no intention of committing a crime, boarded a train, got off at an unknown location (apparently in New Rochelle), and just started walking about aimlessly. Upon coming to a liquor store, the defendant entered and pulled out a gun and demanded money. The owner offered no resistance. After taking the money, the defendant "just stayed there” in the liquor store for a few more minutes, and then exited, turned to the left and walked (not ran) down Main Street toward Beachwood Avenue. A couple of minutes later, the defendant walked back past the liquor store, this time in the direction of the New England Thruway.

Shortly after the incident was reported to the police, the defendant, walking west on Main Street, was observed by New Rochelle Police Officer Douglas Burrell. The latter exited his vehicle, carrying a shotgun, and shouted to defendant to stop. Defendant continued walking and "sort of looked around”. Officer Burrell then shouted, "Yeah, you, come here, police.” As defendant turned, he fired in Officer Burrell’s direction. Officer Burrell returned fire with the shotgun. At this point, and notwithstanding the fact that his bullets had injured no one, the defendant simply turned again and resumed walking (albeit, at a quickened pace), seemingly oblivious to whatever additional action the officer might have deemed it advisable to take. Other officers soon arrived, but even when confronted with several armed police officers and told to halt, the defendant initially failed to respond, and only later threw down his weapon. In his statement to the police, the defendant indicated that he had been out of work for approximately nine months. He had fired upon the police officer because "he was scared * * * just scared”, and added that "a long time ago” in Santo Domingo, he had eaten a local fruit which not only made him extremely ill, but left residual effects, causing him on occasion to "act irrationally] or do things that he does not quite control”.

In addition, the defendant was able to adduce expert psychiatric testimony to the effect that he had an IQ of 66, in the borderline retarded category; has several pronounced personality disorders, including schizophrenia; had become "increasingly depressed [and] * * * immobilized” during the period immediately preceding the shooting; and had fired upon the officer in an "isolated explosive episode”, "spontaneously” and "automatically”, i.e., "emotionally” and "without thinking”, which "invariably occurs” when a person is under "great emotional stress”. In fact, on re-cross-examination, one of the defendant’s experts (Dr. Tuckman) effectively indicated that, in his opinion, the defendant was acting under "extreme emotional disturbance” at the time of the instant shooting. This opinion, elicited by the prosecutor, bore directly on the nature and extent of defendant’s emotional strain.

Taking the foregoing view of the evidence, it is clear that there exists on the peculiar facts and circumstances of this case sufficient evidence which could support a defendant’s verdict on at least the first requirement of the statutory affirmative defense, to wit, that at the time of the instant shooting the defendant was acting under the influence of "extreme emotional disturbance” (Penal Law § 125.27 [2] [a]; People v Casassa, 49 NY2d 668, cert denied 449 US 842, supra). As the Court of Appeals noted in People v Casassa (supra, at pp 678, 679), the test to be applied to this element of the statutory defense is "wholly subjective” in nature, and requires a factual determination that, at the operative moment, "the particular defendant did in fact act under extreme emotional disturbance”. Accordingly, no question as to the "reasonableness” of that disturbance is presented at this juncture, and, thus viewed, there was ample objective and opinion evidence from which a jury might have concluded that at the time that he turned and fired, this defendant, for whatever reason or combination of reasons, was suffering from extreme emotional disturbance.

A closer question is presented with regard to the second element of the statutory defense, for here the Court of Appeals has decreed an "objective” standard, pursuant to which the determination as to whether or not there exists a "reasonable explanation or excuse” for the proffered emotional disturbance (Penal Law § 125.27 [2] [a]) is to be made "by viewing the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for his emotional disturbance was reasonable” (People v Casassa, 49 NY2d 668, 679, supra; People v Moye, 66 NY2d 887, supra; see also, ALI Model Penal Code § 210.3). When making a determination of reasonableness, the critical element in the Model Penal Code formulation is the clause requiring that reasonableness be assessed "from the viewpoint of a person in the actor’s situation” (ALI Model Penal Code § 210.3 [1] [b]; cf. Penal Law § 125.27 [2] [a]). As noted in the Model Penal Code Commentaries, "[t]he word 'situation’ is designedly ambiguous * * * it is clear that personal handicaps and some external circumstances must be taken into account * * * for it would be morally obtuse to appraise a crime for mitigation of punishment without reference to these factors” (ALI Model Penal Code and Commentaries § 210.3, at 62 [Official Draft and Revised Comments, 1980]).

Since the ultimate question of whether the affirmative defense has been established rests largely within the discretionary power of the jury (see, People v Morrison, 95 AD2d 868, 869), it is our belief that the delivery of the charge in this case was required in order to give effect to the salutary purpose underlying enactment of the statutory defense in the form suggested in the Model Penal Code (see, § 210.3 [1] [b]). As the Court of Appeals stated in People v Casassa (49 NY2d 668, 681, supra): "In our opinion, this statute would not require that the jury or the court as trier of fact find mitigation on any particular set of facts, but, rather, allows the finder of fact the opportunity to do so, such opportunity being conditional only upon a finding of extreme emotional disturbance in the first instance. In essence, the statute requires mitigation to be afforded an emotionally disturbed defendant only when the trier of fact, after considering a broad range of mitigating circumstances, believes that such leniency is justified.”

And, as noted in the Commentaries to the Model Penal Code: "In the end, the question is whether the actor’s loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen. Section 210.3 [of the Model Penal Code] faces this issue squarely and leaves the ultimate judgment to the ordinary citizen in the function of a juror assigned to resolve the specific case” (ALI Model Penal Code and Commentaries § 210.3, at 63 [Official Draft and Revised Comments, 1980]).

In this regard we consider most significant an inquiry by the jurors in the case at bar whether they could recommend leniency to the court.

We agree with our dissenting colleagues that the robbery itself could not, as a matter of law, constitute a reasonable explanation or excuse for defendant’s extreme emotional disturbance (see, ALI Model Penal Code and Commentaries § 210.3, at 64-65 [Official Draft and Revised Comments, 1980]), for an emotional disturbance is excusable only " 'if it is occasioned by [a] provocation, event or situation for which the offender was not culpably responsible’ ” (ALI Model Penal Code and Commentaries § 210.3, at 64 [Official Draft and Revised Comments, 1980], quoting from the Final Report of the National Commission on Reform of Federal Criminal Laws —Proposed New Federal Criminal Code [18 USC] [Jan. 7, 1971]).

In our view, the evidence supports a conclusion that the explanation or excuse offered by this defendant was "objectively” reasonable, and not attributable to the robbery. Dr. Tuckman, a psychiatrist, diagnosed defendant’s reaction as an "isolated explosive episode” triggered by increasing depression and immobilization. In his opinion, the tremendous strain affecting defendant flowed from "more than” the robbery. It was also caused by his prolonged unemployment and his inadequate fragile personality. Dr. Goldstein, a certified clinical psychologist, agreed that defendant’s adjustment and explosive disorder predated the robbery by six months. Furthermore, in his opinion, defendant’s residual type schizophrenia probably dated back to his childhood and first hospitalization at age 14 (from the toxic fruit).

In sum, the evidence on this record indicates that defendant’s disturbance could have predated the robbery, and, taking into account his inadequate personality and borderline retardation, could have been triggered by the stress of his prolonged unemployment, as well as the residual effects of his ingestion of toxic fruit as a youngster in Santo Domingo. Whether the culpable or nonculpable situations and events were responsible for defendant’s disturbance was a factual question to be resolved by the jury, upon proper instructions.

To reach its conclusion that there is insufficient credible evidence to support the defense of extreme emotional disturbance, the dissent emphasizes unfavorable portions of the testimony, in abrogation of the rule that the evidence must be viewed in a light most favorable to defendant (see, People v Moye, 66 NY2d 887, supra; People v Watts, supra, at p 301; People v Vera, 94 AD2d 728, 729, supra). That defendant was not psychotic or insane is irrelevant. The issue is whether there was sufficient evidence to create a question for the trier of fact that defendant was acting under the influence of extreme emotional disturbance, for which there was a reasonable explanation or excuse. Contrary to the position adopted by the dissent, the evidence permits a conclusion that defendant’s overwhelming emotional stress arose prior to and was triggered by factors other than his commission of the robbery. The dissent, rather than acknowledging the factual issue raised, resolves it, concluding that defendant brought about his own mental disturbance by involving himself in a crime. The cause and reasonableness of defendant’s extreme emotional disturbance was properly a factual question to be resolved by the jury, for once the threshold requirement is met, i.e., once "there is sufficient credible evidence for the jury to determine that, by a preponderance of the evidence, the elements of the defense are established”, it is "then for the jury to resolve inconsistencies in testimony and reach conclusions as to the 'volitional, deliberate and calculated’ nature of defendant’s acts” (People v Moye, 66 NY2d 887, 890, n, supra).

We are persuaded in reaching this conclusion by the peculiar facts and circumstances of this case, particularly the uncontroverted testimony of prosecution witnesses concerning defendant’s strange behavior on the date of the robbery, his hesitation, aimless wandering and seeming incomprehension of his situation. We acknowledge that it will be a rare case where the defense of extreme emotional disturbance will be applicable when a homicide or attempted homicide follows commission of another crime.

Accordingly, since, under the facts and circumstances of this case, there was sufficient credible evidence which would support a finding of extreme emotional disturbance, and inasmuch as an explanation had been offered by the defendant and his psychiatric experts, "which a rational jury might have accepted or rejected” (see, People v Moye, 66 NY2d 887, 890, supra), the County Court erred in refusing to honor the defendant’s request to charge on the affirmative defense of "extreme emotional disturbance” (Penal Law § 125.27 [2] [a]; see, People v Lanzot, 67 AD2d 864, appeal dismissed 49 NY2d 796, supra). Under such circumstances, the failure of the trial court to deliver the requested charge constituted reversible error (see, People v Moye, supra; People v Watts, 57 NY2d 299, 301, supra; People v Vera, 94 AD2d 728, 729, supra).

We finally note that harmless error analysis has no place on the facts and circumstances of this case, given the jurors’ request concerning leniency. While they found that defendant possessed the requisite intent for attempted murder,- they nevertheless evidenced precisely the sort of understanding to which the defense is directed, i.e., "whether the actor’s loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen” (ALI Model Penal Code and Commentaries § 210.3, at 63 [Official Draft and Revised Comments, 1980]). Contrary to the contention of the dissent, the jury was not permitted "to consider lesser degrees of the crime of attempted murder in the first degree and thereby exercise an appropriate degree of leniency, if it had been so inclined”. The trial court properly instructed the jurors that they could consider the lesser included offenses only if they found defendant not guilty of attempted murder. The jurors did find defendant guilty of attempted murder, and, therefore, pursuant to the court’s instruction, could not exercise leniency with respect to that crime because the mitigating factor of extreme emotional disturbance was not presented to them. The jury could have exercised leniency and followed the court’s instruction only if the defense of extreme emotional disturbance had been charged.