The record does not contain a marriage certificate, and the Appellate Division referred to Mrs. Tulloch as the petitioner's girlfriend. See People v. Tulloch, 179 A.D.2d 794, 795, 579 N.Y.S.2d 442, 443 (2d Dep't 1992). On the other hand, in a sworn statement given to INS agents, Mr. Tulloch said the couple had been married, and Mrs. Tulloch claimed to be his wife in the visa application filed on the petitioner's behalf.
; People v. Mejia, 166 A.D.2d 675, 561 N.Y.S.2d 265 (App. Div. 2d Dept. 1990) (a defendant who had been previously menaced by the victim was held not to have acted under the influence of an extreme emotional disturbance); People v. Tulloch, 579 N.Y. S.2d 442, 443 (App. Div. 1992) (evidence establishing defendant was "angry" and "motivated by jealousy" insufficient to warrant extreme emotional disturbance instruction); Feris, 535 N.Y.S.2d at 18; Walker, 64 N.Y.2d at 743 (evidence establishing defendant acted out of "anger or embarrassment, or both" insufficient to warrant extreme emotional disturbance charge); People v. Knights, 486 N.Y. S.2d 377, 379 (N.Y.App. Div. 1985) ("The fact that the defendant had argued with his wife about her whereabouts earlier that evening and two months earlier had notified the police of his irritation regarding her immoral behavior is insufficient to give substance to the defense [of extreme emotional disturbance]".); Zamora v. Phillips, No. 04-CV-4093 (JFB), 2006 WL 2265079, at *6 (E.D.N.Y. Aug. 8, 2006) ("Zamora failed to show, under the objective element, that there was sufficient evidence for a jury to conclude that his response is one that constitutes extreme emotional disturbance.
; People v. Mejia, 166 A.D.2d 675, 561 N.Y.S.2d 265 (App. Div. 2d Dept. 1990) (a defendant who had been previously menaced by the victim was held not to have acted under the influence of an extreme emotional disturbance); People v. Tulloch, 579 N.Y. S.2d 442, 443 (App. Div. 1992) (evidence establishing defendant was "angry" and "motivated by jealousy" insufficient to warrant extreme emotional disturbance instruction); Feris, 535 N.Y.S.2d at 18; Walker, 64 N.Y.2d at 743 (evidence establishing defendant acted out of "anger or embarrassment, or both" insufficient to warrant extreme emotional disturbance charge); People v. Knights, 486 N.Y. S.2d 377, 379 (N.Y.App. Div. 1985) ("The fact that the defendant had argued with his wife about her whereabouts earlier that evening and two months earlier had notified the police of his irritation regarding her immoral behavior is insufficient to give substance to the defense [of extreme emotional disturbance]".); Zamora v. Phillips, No. 04-CV-4093 (JFB), 2006 WL 2265079, at *6 (E.D.N.Y. Aug. 8, 2006) ("Zamora failed to show, under the objective element, that there was sufficient evidence for a jury to conclude that his response is one that constitutes extreme emotional disturbance.
Acting out of anger or jealousy, as New York courts have consistently held, does not entitle a defendant to an extreme emotional disturbance instruction. See Rice, 846 F.2d at 165-66; People v. Felix, 648 N.Y.S.2d 87, 88 (N.Y.App.Div. 1996) (evidence establishing defendant "acted out of anger or embarrassment" not sufficient to warrant extreme emotional disturbance instruction); Dominguez, 640 N.Y.S.2d at 583-84; People v. McDonald, 605 N.Y.S.2d 341, 342 (N.Y.App.Div. 1993) (evidence establishing defendant "angry and hurt" insufficient to warrant extreme emotional disturbance instruction); People v. Tulloch, 579 N.Y.S.2d 442, 443 (N.Y.App.Div. 1992) (evidence establishing defendant was "angry" and "motivated by jealousy" insufficient to warrant extreme emotional disturbance instruction); Feris, 535 N.Y.S.2d at 18; Walker, 64 N.Y.2d at 743 (evidence establishing defendant acted out of "anger or embarrassment, or both" insufficient to warrant extreme emotional disturbance charge); People v. Knights, 486 N.Y.S.2d 377, 379 (N.Y.App.Div. 1985) ("The fact that the defendant had argued with his wife about her whereabouts earlier that evening and two months earlier had notified the police of his irritation regarding her immoral behavior is insufficient to give substance to the defense [of extreme emotional disturbance]".). Accordingly, because the trial judge correctly found under New York law that the evidence established at trial did not warrant an extreme emotional disturbance instruction, the petition must be denied.
After a hearing, the trial court properly denied the defendant's motion pursuant to CPL 210.20 to dismiss the indictment on the ground of preindictment delay. The five-year delay between the discovery of the victim's body and the indictment of the defendant did not, in and of itself, warrant dismissal of the indictment ( see People v Decker, 13 NY3d 12, 14; People v Turner, 286 AD2d 514; People v Vernace, 274 AD2d 595, aff'd 96 NY2d 886; People v Jones, 267 AD2d 250; People v Tulloch, 179 AD2d 794; People v LaRocca, 172 AD2d 628). The determination as to whether there has been a due process violation turns upon a balancing of several factors including: (1) the extent of the delay, (2) the reason for the delay, (3) the nature of the underlying charge, (4) whether there has been an extended period of pretrial incarceration, and (5) whether there is any indication that the defense has been impaired by reason of the delay ( see People v Taranovich, 37 NY2d 442, 445; People v Turner, 286 AD2d 514).
The Supreme Court properly denied the defendant's request for a jury charge on the affirmative defense of extreme emotional disturbance. The defendant presented no evidence that he suffered from a mental infirmity rising to the level of insanity at the time of the homicide, and his conduct was inconsistent with the loss of control associated with extreme emotional disturbance ( see People v Smith, 1 NY3d 610, 612; People v Buckner, 23 AD3d 492; People v Zamora, 309 AD2d 957, 958; People v McDonald, 199 AD2d 420; People v Tulloch, 179 AD2d 794, 795). The defendant's remaining contention is without merit.
County Court recognized this and provided him with the requested reduced charge of manslaughter under Penal Law ยง 125.20 (1). Defendant did not call any witnesses and the proof he relied upon from the People's case as supporting the affirmative defense โ including a "love" letter he wrote the month before this incident, the history of the troubled relationship of defendant and the victim, and the victim's involvement with a new boyfriend โ arguably reflected a basis for the presence of anger and jealousy by defendant. But anger and jealousy do not entitle a defendant to an extreme emotional disturbance charge ( see People v Walker, supra at 743; People v Tulloch, 179 AD2d 794, 795, lv denied 79 NY2d 1008; People v Knights, 109 AD2d 910, 911; Zamora v Phillips, 2006 WL 2265079, *7, 2006 US Dist LEXIS 55434, *21-24 [ED NY Aug. 8, 2006]; see also People v Roche, supra at 78). We are unpersuaded that County Court's refusal to charge extreme emotional disturbance was error.
March 17, 2003. Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this court dated January 21, 1992 (People v. Tulloch, 179 A.D.2d 794), affirming a judgment of the Supreme Court, Kings County, rendered November 14, 1988. Albert Tulloch, Fallsburg, N.Y., appellant pro se.
Here, no reasonable view of the evidence supports the conclusion that the defendant acted under the influence of an extreme emotional disturbance, or that there was a reasonable explanation or excuse for such extreme emotional disturbance (see, Penal Law ยง 125.25[1][a]; People v. Picozzi, 106 A.D.2d 413, 414). At most, the evidence showed that the defendant acted out of anger, which is not equivalent to the loss of self-control generally associated with the defense of extreme emotional disturbance (see, People v. Walker, 64 N.Y.2d 741; People v. McDonald, 199 A.D.2d 420; People v. Tulloch, 179 A.D.2d 794). The defendant's remaining contention regarding a court officer's comment to a juror is without merit.
Defendant's request to have the jury instructed on extreme emotional disturbance was properly denied for failure to give written notice, before trial, of his intent to present such a defense (CPL 250.10 [b]; [2]). Absent such notice, designed to afford the prosecution opportunity to obtain evidence to counter the defense, the People would be placed at an unfair disadvantage ( People v Berk, 88 NY2d 257, 263). Moreover, charging the affirmative defense would have invited the jury to speculate impermissibly as to defendant's state of mind at the time of the shooting because the evidence showed, at most, that he acted out of anger or embarrassment at being rejected by the victim, emotions "not equivalent to the loss of self-control generally associated with that defense" ( People v Walker, 64 NY2d 741, 743; People v Tulloch, 179 AD2d 794, 795, lv denied 79 NY2d 1008). The weapon possession sentences were properly directed to run consecutively to the attempted murder and criminal use of a firearm sentences since there was evidence that defendant possessed the weapon and placed it in the back seat of a car before accosting the victim and shooting her ( People v Burgos, 225 AD2d 416, 417, lv denied 88 NY2d 876; People v Southern, 198 AD2d 24, 25, lv denied 83 NY2d 810).