People v. Victor Gonzalez


AD1 order dated January 10, 2013, affirming judgment of conviction. Decision below: 91 AD3d 453, 936 NYS2d 174. Lippman, Ch.J., granted leave March 29, 2013.

ISSUE PRESENTED: Where defendant had withdrawn CPL 250.10 notice to present psychiatric evidence, but then asked for an instruction on an EED defense based entirely on proof presented by the People in their direct case, whether the trial court properly conditioned giving the EED instruction on allowing the People to reopen their case to present psychiatric evidence – leading defendant to withdraw his request for an EED instruction.

Issue before the Court: Whether the defense must provide CPL §250.10 notice when the defendant offers no evidence at trial but requests an EED charge solely upon evidence presented by the People, and, therefore, whether requesting the charge entitled the People to present psychiatric evidence to rebut the “defense.” 


Held: No.  A defendant’s request for a jury charge on EED based on the People’s direct case is not “offer[ing]” or “present[ing]” evidence in connection with an EED defense, and, therefore, the defendant’s request for an EED charge should not have been construed as CPL §250.10 notice.  No unfair surprise is caused to the People because the defense is not attempting to introduce new mental health evidence but is merely relying on evidence that the People chose to admit.  Because no notice was required, there was no basis for allowing the prosecution to use the psychiatric examination against the defendant.