People v. Ford

• Decision Date: 04 December 1979
• Parties: The PEOPLE of the State of New York v. Perry FORD, Defendant.
• Court: New York Supreme Court

Page 402

423 N.Y.S.2d 402

102 Misc.2d 160

The PEOPLE of the State of New York v. Perry FORD, Defendant.

Supreme Court, Bronx County.

Dec. 4, 1979.

Jonas M. Gelb, Asst. Dist. Atty., for the People.

Robert Bornstein, Legal Aid Society, New York City, for defendant.

DECISION ON REQUESTS TO CHARGE

DUNCAN S. McNAB, Justice.

Defendant has been charged, individually, with the attempted murder of Police Officer John Argiento on November 18, 1978, moments after the defendant had allegedly robbed a gas station while acting in concert with his girlfriend Ava Smith. On trial, defendant interposed the defense of insanity. Following the close of testimony, defendant Inter alia, requested that the Court additionally charge on the affirmative defense of extreme emotional disturbance as set forth in P.L. § 125.27(2) and submit, as a lesser included offense, the charge of attempted manslaughter 1o under P.L. § 125.20(2). Under constraint of People v. Lanzot, 67 A.D.2d 864, 413 N.Y.S.2d 399, 1st Dept. (1979), which this Court understands is presently pending before the Court of Appeals, both of defendant's requests were granted.

THE AFFIRMATIVE DEFENSE OF EXTREME EMOTIONAL DISTURBANCE

Penal Law § 125.27, as enacted September 1, 1974, sets forth the crime of murder 1o which encompasses the intentional killing of a police officer acting in the line of duty. In subdivision (2)(a), it also provides for the affirmative defense of extreme emotional disturbance, as follows:

"2. In any prosecution under subdivision one, 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 . . ."

In so doing, the legislature clearly provided for a court or jury, upon a proper showing of mitigating circumstances in a consummated killing, to reduce what would otherwise be a murder 1o charge to manslaughter 1o . Quaere, however, does the same opportunity exist for one whose attempt proves unsuccessful? Prior to the above-noted Lanzot decision, the few cases dealing with the issue of extreme emotional disturbance were all consummated murders. People v. Patterson, 39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898 (1976), affd. 432 U.S. 197, 97 S.Ct. 52, 50 L.Ed.2d 72 (1977); People v. Lyttle, 95 Misc.2d 879, 408 N.Y.S.2d 578, Co.Ct. Saratoga Co., 1976 (Brown, J.); and People v. Shelton, 88 Misc.2d 136, 385 N.Y.S.2d 708, Sup.Ct., N.Y. Co. 1976 (Kassal, J.). However, in Lanzot, supra, where the central issue involved the trial Court's error in charging that a fire marshal was a police officer as a matter of law, the First Department, in dicta and without discussion, also unanimously agreed that the affirmative defense of extreme emotional disturbance should have been submitted upon the top count of Attempted murder 1o .

In the present case, the People oppose the submission of this affirmative defense contending that there is no reasonable view of the evidence to support it, and that, unlike Lanzot, the instant case involves an insanity defense which should in and of itself preclude defendant from also having this affirmative defense submitted to the jury. It is true that Lanzot involved a situation where the defendant, being sought on robbery charges, was, in his words, "rudely awakened" from a sound sleep by New York City fire marshals, rather than any question of insanity. While the question of extreme emotional disturbance (the present day progeny of the "heat of passion" concept) is distinct and separate from that of insanity, the meagre case law on the subject suggests to this Court that both may, in a broad sense, involve some question of mental infirmity.

In support of this proposition, the Court would point to the seminal case of People v. Patterson, supra, where a majority of the Court of Appeals wrote:

"The purpose of the extreme emotional disturbance defense is to permit the defendant to show that his actions were caused by a Mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them . . . The opportunity opened for mitigation Differs significantly from the Traditional heat of passion defense . . . An action influenced by an extreme emotional disturbance is not one that is necessarily so spontaneously undertaken. Rather, it may be that a Significant mental trauma has affected a defendant's mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore." (emphasis added)

In affirming defendant Patterson's murder conviction by a 5-3 vote, it is particularly noteworthy that a majority of the United States Supreme Court, in dicta, agreed that New York's new extreme emotional disturbance formulation has in fact significantly expanded upon the old heat of passion concept. This Court would agree with the comment of J. Kassal, writing in People v. Shelton, supra, that

"The language of Patterson at least implies that psychiatric testimony is relevant and material" upon the issue of extreme emotional disturbance.

Further, the Court would concur with the three-pronged formulation set forth in Shelton, and will include this definition in its charge to the jury, i. e.

"That extreme emotional disturbance is the emotional state of an individual who (a) has no mental disease or defect That rises to the level established by section 30.05 of the Penal Law; (b) is exposed to an extremely unusual and overwhelming stress; and (c) has an extreme emotional reaction to it, as a result of which there is a loss of self-control and reason is overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions." (emphasis added)

Special attention should also be directed to a footnote included by J. Kassal 88 Misc.2d at page 146, 385 N.Y.S.2d at page 716 of Shelton, wherein he noted that following the conclusion of...