People v. Sepe

• Citation: 111 A.D.3d 75,972 N.Y.S.2d 273,2013 N.Y. Slip Op. 06030
• Parties: The PEOPLE, etc., respondent, v. Robert SEPE, appellant.
• Decision Date: 25 September 2013
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 75

972 N.Y.S.2d 273

2013 N.Y. Slip Op. 06030

The PEOPLE, etc., respondent,

v.Robert SEPE, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 25, 2013.

The Sarcone Law Firm, PLLC, White Plains, N.Y. (John A. Sarcone III and Clement S. Patti, Jr., of counsel), for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Lois Cullen Valerio, Richard Longworth Hecht, and Laurie Sapakoff of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

COHEN, J.

During the early morning hours of March 22, 2008, the defendant beat his girlfriend to death with a baseball bat inside the home they shared in Croton–on–Hudson, New York. At trial, the defendant relied on the affirmative defense of extreme emotional disturbance, presenting evidence that he had a long history of psychiatric illness, and that in the months leading up to the homicide, his mental state deteriorated as his once successful business faced financial setbacks, and anxiety kept him from sleep. The defendant was also experiencing a great deal of stress over the prospect of hosting a large family dinner for the upcoming Easter holiday, and he claims that he reached his breaking point and lost control of his actions when his girlfriend rebuffed his suggestion that they cancel the planned gathering. There is no indication that the defendant had ever committed any prior acts of violence against his girlfriend, and his girlfriend's teenaged daughter testified that the defendant and her mother loved each other and were discussing marriage. At the conclusion of the trial, the jury rejected the proffered extreme emotional disturbance defense, and convicted the defendant of murder in the second degree. The defendant appeals, arguing that the jury's failure to accept his defense of extreme emotional disturbance in mitigation of his conduct in killing his girlfriend, and accordingly reduce the degree of his conviction to manslaughter in the first degree, was against the weight of the evidence.

For the reasons that follow, we conclude that the defendant sustained his burden of proving, by a preponderance of the evidence, that he was acting “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse” (Penal Law §§ 125.27[2][a], 125.25[1] [a] ) when he killed his girlfriend, and that the jury's failure to reduce the degree of his conviction to manslaughter in the first degree was against the weight of the evidence.

During the course of the jury trial conducted in the spring of 2009, the defendant presented extensive evidence of his background, his history of treatment for depression and anxiety, and his mental state prior to and at the time of the homicide through his own testimony, the testimony of his treating psychiatrist, and the testimony of several family members. According to the accounts of the defendant's background given at trial, he took his first steps toward becoming a successful entrepreneur as a young man. In May 1976, when the defendant was just 21 years old, he started his own business, selling health products in a local gymnasium in the Bronx. After making a modest sum of money, he opened a small health food store. In 1978, the defendant married, and he and his wife had three children. Eventually, the defendant sold his health food store and started a health products distribution business in the Bronx. As the business grew more successful, the defendant moved the company to a larger facility and increased the product line. During the early 1980s, the company's distribution and sales increased to about $500,000 a year, and at its peak, in the late 1980s and early 1990s, the company grossed approximately $1.5 million annually.

In 1993, 15 years before the tragic incident, the defendant began weekly psychotherapy sessions with a psychiatrist. His treating psychiatrist testified that the defendant presented with a history of depression and a long history of anxiety and panic disorder that would manifest itself in panic attacks, an extreme form of anxiety during which the patient experiences an inability to breathe and heart palpitations. Although the defendant initially wanted to avoid taking medication for his mental health problems, he eventually agreed to take an antidepressant prescribed by the psychiatrist. The psychiatrist testified that the defendant was “insecure” and that his defense against “massive insecurity” was to be “perfect,” which made it hard to ever admit that he was wrong.

By 2003, the defendant and his wife were “separated,” but still living in the same house. The defendant met Jeanette Carlucci, the victim, online in May 2003, and they eventually started dating. In April 2005, the defendant and Carlucci took a seven-month “hiatus” from their relationship. During that period, the defendant's wife moved out of the marital home. The defendant's relationship with Carlucci then progressed, and they started talking about marriage and even placed a deposit on an engagement ring. Carlucci's teenaged daughter, who split her time between her mother's home and her biological father's home, never saw her mother and the defendant fight, and believed that her mother and the defendant loved each other.

The defendant's business suffered a downturn in 2006, when two raw ingredients used in two of his best-selling products started to increase in cost. The defendant did not raise prices, hoping the cost would go back down. As a result, the defendant's business began to have cash flow problems.

The defendant's divorce from his wife was finalized in August 2007. Later that year, in October 2007, Carlucci woke the defendant up from a nap because he was gasping for air. The defendant noticed that his heart was racing. After engaging in research on the internet, the defendant diagnosed himself as suffering from sleep apnea.

In the months leading up to Carlucci's death, the defendant faced additional pressure stemming from business difficulties, and continued to experience problems with sleeping. During this period, his mental health also markedly deteriorated. In December 2007, the possibility of a potential lawsuit against the defendant and his company was looming. The defendant had conversations with the principal of the other company involved about a possible settlement, but the claim eventually led to litigation. Somehow, the defendant became convinced that the principal of the plaintiff company was involved in organized crime, and he became “fixated” on the idea that his earlier conversations with the principal had been tape-recorded. The defendant became highly distressed about the litigation. At a Christmas party later that month, the defendant talked to many people, including his sister and brother-in-law, both physicians, about his lack of sleep.

Shortly thereafter, in January 2008, Carlucci moved into the defendant's house in Croton–on–Hudson. However, the defendant slept in the master bedroom upstairs, and Carlucci slept in a separate bedroom downstairs, because they were not married and wanted “to set a good example” for their children. At about this same time, the defendant began seeing his psychiatrist twice weekly due to his increased anxiety, including his fear that he would choke and die in his sleep. He was also anxious due to the pending litigation and because his cash flow was poor. The defendant's psychiatrist believed that his sleeping difficulties were the result of panic attacks and adjusted the defendant's medication. Although the psychiatrist noted that sleep disturbance was “one of the cardinal symptoms of depression,” he nevertheless referred the defendant to another doctor for a sleep evaluation. According to the defendant, the doctor he was referred to did not believe that he suffered from sleep apnea, but wanted to conduct a sleep study to be certain. However, the defendant injured his back while lifting weights on January 7, 2008, and could not participate in the sleep study because he was unable to lie on his back.

The defendant's adult children noticed changes in his behavior during the early part of 2008. The defendant's son, who worked with the defendant at the company, noticed a decline in both the amount of work the defendant was performing for the company, and the quality of the work performed. The son also noticed that the defendant was depressed, often tired, was having sleeping problems, and was “obsessed” about the lawsuit. The defendant's daughter noticed that her father was more tired and emotional than usual. The defendant would cry and tell her that he loved her.

The defendant testified that in February 2008, he was still having trouble sleeping and was still concerned that the principal of the plaintiff company in the lawsuit was involved in organized crime. Despite the fact that Carlucci had moved in with him, he also approached his now former wife and asked her to take him back.

The defendant's downward spiral continued throughout the month of February 2008. On February 29, 2008, the defendant was very distressed, and he called his sister and expressed to her that he could not “take this anymore, ... the anxiety is intolerable. I can't think, I can't sleep, I can't do anything. I am in bed most of the time ... please help me.” Following this call, the defendant met with his sister, and told her about his anxiety, depression, obsession about organized crime invading his business concerns, money problems, and medication.

The next morning, March 1, 2008, approximately three weeks before the homicide, Carlucci, the defendant's sister, and the defendant's brother-in-law took the defendant to the Westchester Medical Center's psychiatric emergency center. He was admitted and spent the night, sleeping five straight hours, but insisted on going home the next day. He continued to attend sessions with his psychiatrist. The...