669 N.E.2d 815 | NY | 1996
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be reversed and the indictment dismissed, without prejudice to an application by the People for leave to resubmit.
In this prosecution for second degree murder, the trial court erred in submitting the affirmative defense of extreme emotional disturbance over objection by the defense. As we held in People v DeGina (72 NY2d 768, 776), "a defendant * * * has the right to chart his own defense.” That right is infringed when an affirmative defense is submitted over defense objection and the defendant is thereby prejudiced (id., at 776-777).
At the close of the proof, the prosecutor asked the court to submit first degree manslaughter, as intentional homicide while acting under the influence of extreme emotional disturbance. Over defense objection the court responded by advising the jury that it should find defendant guilty of manslaughter in the first degree rather than second degree murder if it found that he was legally sane and intentionally caused the death of another, but that he did so while acting under the influence of extreme emotional disturbance, and that this affirmative defense must be established by a preponderance of the evidence (see, Penal Law § 125.25 [1] [a]). The jury found defendant guilty of first degree manslaughter and a divided Appellate Division affirmed the conviction (211 AD2d 388). A dissenting Justice of that Court granted leave to appeal to this Court.
In People v DeGina (72 NY2d 768, supra), a narcotics-sale prosecution, the defendant was prejudiced in part because the affirmative defense that the court introduced — the entrapment defense — was inconsistent with the defense’s position — that the defendant had not, in fact, sold any drugs. As the Court noted in DeGina, the interposition of inconsistent defenses is "a hazardous tactic” because it creates a risk of juror confusion and "may well taint a defendant’s credibility in the eyes of the jury” (id., at 777). Such a strategic risk is not one that the court may foist on an unwilling defendant (id.). Moreover, when the defensive theory that the court interjects constitutes an affirmative defense there is an increased danger of prejudice because of the resulting shift in the burden of proof from the prosecution to the defense and the attendant risk that the jury will believe that the defendant has assumed a burden beyond the defense.
Because defendant was convicted of the lesser included offense of first degree manslaughter, the dismissal is without prejudice to an application by the People to resubmit that crime to a new Grand Jury (People v Mayo, 48 NY2d 245).
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.
Order reversed, etc.