Opinion
188 KA 14–00747
05-01-2020
The PEOPLE of the State of New York, Respondent, v. Anthony R. TAGLIANETTI, Defendant–Appellant.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON OF COUNSEL), FOR DEFENDANT–APPELLANT. PATRICK E. SWANSON, DISTRICT ATTORNEY, MAYVILLE (JOHN C. ZUROSKI OF COUNSEL), FOR RESPONDENT.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON OF COUNSEL), FOR DEFENDANT–APPELLANT.
PATRICK E. SWANSON, DISTRICT ATTORNEY, MAYVILLE (JOHN C. ZUROSKI OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25[1] ), defendant contends that County Court abused its discretion in precluding him from offering psychiatric evidence in support of an affirmative defense of extreme emotional disturbance (EED). We reject that contention. Defendant did not move for permission to file a late notice of his intent to introduce psychiatric evidence until more than six months after the 30–day statutory deadline, and the court determined that defendant failed to show good cause to allow the late filing (see CPL 250.10[2] ; People v. Silburn, 31 N.Y.3d 144, 160, 74 N.Y.S.3d 781, 98 N.E.3d 696 [2018] ; People v. Crawford, 163 A.D.3d 986, 987, 82 N.Y.S.3d 68 [2d Dept. 2018], lv denied 32 N.Y.3d 1063, 89 N.Y.S.3d 118, 113 N.E.3d 952 [2018] ). Among other things, defendant failed to demonstrate that the defense had any merit (see generally Silburn, 31 N.Y.3d at 161, 74 N.Y.S.3d 781, 98 N.E.3d 696 ; People v. Smith, 1 N.Y.3d 610, 612, 776 N.Y.S.2d 198, 808 N.E.2d 333 [2004] ; People v. Rizzo, 267 A.D.2d 1041, 1042, 701 N.Y.S.2d 209 [4th Dept. 1999], lv denied 95 N.Y.2d 838, 713 N.Y.S.2d 145, 735 N.E.2d 425 [2000] ).
Even assuming, arguendo, that the court abused its discretion in precluding the evidence, we conclude that the error was harmless inasmuch as the evidence of defendant's guilt was overwhelming and there was no significant probability that preclusion of the psychiatric evidence impacted the verdict (see People v. Foti, 33 A.D.3d 403, 403, 821 N.Y.S.2d 767 [1st Dept. 2006], lv denied 7 N.Y.3d 901, 826 N.Y.S.2d 610, 860 N.E.2d 72 [2006] ; see also Silburn, 31 N.Y.3d at 161 n 11, 74 N.Y.S.3d 781, 98 N.E.3d 696 ; People v. Muller, 72 A.D.3d 1329, 1334, 899 N.Y.S.2d 425 [3d Dept. 2010], lv denied 15 N.Y.3d 776, 907 N.Y.S.2d 465, 933 N.E.2d 1058 [2010] ; People v. Brown, 4 A.D.3d 886, 889, 772 N.Y.S.2d 143 [4th Dept. 2004], lv. denied 3 N.Y.3d 637, 782 N.Y.S.2d 408, 816 N.E.2d 198 [2004] ). Defendant did not establish that any "relevant connection existed between his claimed mental infirmity and his decision to deliberately shoot and kill" the victim ( Muller, 72 A.D.3d at 1334, 899 N.Y.S.2d 425 ; see generally Brown, 4 A.D.3d at 889, 772 N.Y.S.2d 143 ). Further, the People presented overwhelming evidence of defendant's intent to kill the victim and his planning with respect thereto both before and after the incident. Indeed, the evidence presented was entirely inconsistent with the elements of an EED affirmative defense (see Muller, 72 A.D.3d at 1334, 899 N.Y.S.2d 425 ; see also People v. Pavone, 26 N.Y.3d 629, 644–645, 26 N.Y.S.3d 728, 47 N.E.3d 56 [2015] ). The subjective element of an EED defense " ‘focuses on the defendant's state of mind at the time of the crime and requires sufficient evidence that the defendant's conduct was actually influenced by an extreme emotional disturbance. This element is generally associated with a loss of control’ " ( Pavone, 26 N.Y.3d at 643, 26 N.Y.S.3d 728, 47 N.E.3d 56 ; see People v. McKenzie, 19 N.Y.3d 463, 467, 951 N.Y.S.2d 691, 976 N.E.2d 217 [2012] ; People v. Diaz, 15 N.Y.3d 40, 45, 904 N.Y.S.2d 343, 930 N.E.2d 264 [2010] ). Here, the evidence demonstrated that defendant engaged in a planned and calculated murder of a man who had sexually explicit email conversations with defendant's wife. Defendant sent threatening emails to the victim twice in the month before the murder. On the day of the murder, defendant left his Virginia home in the early morning hours and arrived at the victim's workplace in Western New York in the afternoon, but the victim was not there. Defendant then proceeded to the victim's home nearby and awaited the victim, who arrived home that evening and was fatally shot once in the chest and twice in the back at close range. Defendant then drove back to Virginia, throwing away the victim's cell phone along the way. The People therefore presented overwhelming evidence that defendant never lost control over his actions and thus was not acting under an EED (see People v. Mohamud, 115 A.D.3d 1227, 1228, 982 N.Y.S.2d 267 [4th Dept. 2014], lv denied 23 N.Y.3d 965, 988 N.Y.S.2d 572, 11 N.E.3d 722 [2014] ; People v. Zamora, 309 A.D.2d 957, 958, 766 N.Y.S.2d 850 [2d Dept. 2003], lv denied 1 N.Y.3d 583, 775 N.Y.S.2d 798, 807 N.E.2d 912 [2003] ; cf. People v. Moye, 66 N.Y.2d 887, 890, 498 N.Y.S.2d 767, 489 N.E.2d 736 [1985] ).
We agree with defendant that the court erred in determining prior to trial that it would not charge the jury on the affirmative defense of EED. A defendant may be entitled to a jury charge on the affirmative defense of EED based solely on the People's proof (see People v. Gonzalez, 22 N.Y.3d 539, 545, 983 N.Y.S.2d 208, 5 N.E.3d 1269 [2014] ), and thus it was error for the court to make that ruling without any consideration of the People's evidence. We agree with the People, however, that the error was harmless. Defendant was not entitled to such a charge here because the evidence, viewed in the light most favorable to defendant, was not sufficient for the jury to find by a preponderance of the evidence that the elements of the affirmative defense of EED were satisfied (see generally id. ; People v. Walker, 64 N.Y.2d 741, 743, 485 N.Y.S.2d 978, 475 N.E.2d 445 [1984], rearg dismissed 65 N.Y.2d 924, 493 N.Y.S.2d 1030, 483 N.E.2d 136 [1985] ; People v. Coello, 129 A.D.3d 442, 442–443, 10 N.Y.S.3d 87 [1st Dept. 2015], lv denied 26 N.Y.3d 927, 17 N.Y.S.3d 90, 38 N.E.3d 836 [2015] ).