PEOPLE v. KELLY (2018)

Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), rendered July 17, 2014, as amended September 11, 2014, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

The court properly declined to charge the jury on the affirmative defense of extreme emotional disturbance (EED).  The evidence was insufficient, viewed in the light most favorable to defendant, to support a finding that at the time he killed the victim, defendant was actually under the influence of EED (see People v. Roche, 98 N.Y.2d 70, 75–78, 745 N.Y.S.2d 775, 772 N.E.2d 1133 [2002] ).  Among other things, his actions after the crime indicated that he was not affected by an emotional disturbance, but was capable of exercising self-control by attempting to come up with several stories explaining why he stabbed the victim (see People v. Moronta, 96 A.D.3d 418, 420, 945 N.Y.S.2d 303 [1st Dept. 2012], lv denied 20 N.Y.3d 987, 958 N.Y.S.2d 703, 982 N.E.2d 623 [2012];  People v. Acevedo, 56 A.D.3d 341, 341–342, 867 N.Y.S.2d 430 [1st Dept. 2008], lv denied 12 N.Y.3d 813, 881 N.Y.S.2d 21, 908 N.E.2d 929 [2009] ).  In this case, defendant's claim of having been under the influence of PCP went to the defense of intoxication, which the court charged.  It did not charge EED. However, it did charge first and second-degree manslaughter, which was advantageous to defendant.

By acquiescing in the court's ruling, and failing to make any offer of proof, defendant failed to preserve his contention that the court improperly precluded the defense psychologist from opining on whether defendant was under the influence of EED at the time of the crime (see e. g. People v. George, 67 N.Y.2d 817, 819, 501 N.Y.S.2d 639, 492 N.E.2d 767 [1986];  People v. Anderson, 116 A.D.3d 499, 501, 983 N.Y.S.2d 529 [1st Dept. 2014], lv denied 24 N.Y.3d 958, 996 N.Y.S.2d 218, 20 N.E.3d 998 [2014] ), and we decline to review it in the interest of justice.  As an alternative holding, we find that the court's ruling was a provident exercise of discretion (see People v. Diaz, 51 N.Y.2d 841, 433 N.Y.S.2d 751, 413 N.E.2d 1166 [1980] ).  In any event, any error in this regard was harmless.  In the first place, the psychologist was permitted to testify in detail about defendant's mental condition.  Furthermore, as discussed above, there was overwhelming evidence negating EED. Given the objective circumstances of the crime and its aftermath, the proffered opinion would not have met defendant's burden of establishing the EED defense, or have even created a jury issue warranting submission of that defense.  Finally, this particular psychologist's opinion on EED would have had little probative value, given the limits of his actual expertise.

Defendant's general objections failed to preserve his challenges to the People's impeachment of the defense psychologist, and we decline to review them in the interest of justice.  As an alternative holding, we find no basis for reversal.  The court providently exercised its discretion in allowing impeachment of the psychologist about acts of misconduct in other cases where he testified as an expert witness (see generally People v. Smith, 27 N.Y.3d 652, 660, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016] ).  The People established a good faith basis for the questioning, it was relevant to credibility, and it was not unduly prejudicial.