People v. Veras , 572 N.Y.S.2d 912 ( 1991 )

Smith, J.,

concurs in part and dissents in part in a memorandum as follows: I agree with the majority that the defendant’s conviction for manslaughter in the first degree should be affirmed since the record supports the view that even though defendant moved, pro se, to have his attorney relieved and the court did not make the inquiry called for by People v Sides (75 NY2d 822 [1990]), there was no merit to the applications. As to the conviction for attempted murder, however, I believe that even though he failed to ask for it, in the interest of justice the defendant was entitled to a charge on the affirmative defense of extreme emotional disturbance, a charge given with respect to the murder charge.

The evidence showed that as a man and woman sat together on a bench, defendant approached them and pulled a gun. He shot the woman several times, causing her death. A bullet missed the man as he ran away.

Both the People and the defendant agreed that a charge on the affirmative defense of extreme emotional disturbance (Penal Law § 125.25 [1] [a]) should be given with respect to the charge of murder. The court did so despite its view that the evidence did not warrant it. The defendant failed to ask for the charge with respect to the count of the indictment which charged attempted murder.

In determining whether a charge should have been given, a defendant is entitled to the most favorable view of the evidence. (People v Watts, 57 NY2d 299, 301 [1982].) "When evidence at trial viewed in the light most favorable to the accused, sufficiently supports a claimed defense, the court should instruct the jury as to the defense, and must when so requested.” (Supra, at 301.)

In this case the strongest evidence of extreme emotional disturbance is that, after the introduction of evidence of defendant’s appearance and demeanor at the time of the shooting, both sides argued the issue to the jury, the court charged that affirmative defense with respect to murder, and the jury returned a verdict in accordance with that charge. In my view it is now disingenuous for the People to argue that no view of the evidence supported the charge with respect to attempted murder. If the evidence supported the charge with respect to murder, it also supported the charge with respect to attempted murder.

Finally, a number of cases have held that the affirmative defense of extreme emotional disturbance is applicable to a charge of attempted murder as well as murder. (People v Lanzot, 67 AD2d 864, 866 [1979], appeal dismissed 49 NY2d 796 [1980]; People v Tabarez, 113 AD2d 461, 463 [1985]; People v White, 125 AD2d 932, 933 [1986].)

In the interest of justice, the attempted murder charge should be retried.