EED notice even when defendant is relying on lay testimony

This week, the Court of Appeals unanimously held that the notice requirement of CPL § 250.10 applies even when the defendant intends to rely only on lay testimony to establish the affirmative defense of EED.  This answers a question left open by People v. Smith (Ct. App. 2004).

In People v. Diaz (Ct. App. 6/8/2010) (Graffeo, J.) (7-0), the defendant killed his former girlfriend after she allegedly told him that her child had been fathered by another man.  The defendant was charged with Murder 2º and, just prior to jury selection, informed the court and prosecutor that he intended to assert an EED defense.  The court permitted the late notice in the interest of justice and ordered the defendant to submit to a psychiatric examination by the prosecution's psychiatrist, even though he intended to rely only on his own testimony to establish the defense.

CPL § 250.10 precludes "psychiatric evidence"—a statutory term-of-art that involves any defense based on mental disease or defect, including EED—unless the defendant first serves a timely notice.  In People v. Berk, the court observed, "[I]nasmuch as the notice provision was intended to allow the People an opportunity to obtain any mental health evidence necessary to refute a defense of mental infirmity, it follows that it applies to any mental health evidence to be offered by the defendant in connection with such a defense" (id. at 265 [emphasis in original]).  The reasoning of Berk applies equally to lay testimony.  "The aims of CPL 250.10's notice requirement — preventing unfair surprise and allowing the People an opportunity to obtain evidence from any source, expert or otherwise — are implicated whether a defendant seeks to establish a mental infirmity through expert or lay testimony, whether by the defendant or other persons, such as witnesses to the events related to the crimes charged. Consequently, for purposes of the notice provision, psychiatric evidence, which we have broadly construed to encompass 'any' mental health evidence offered by a defendant, includes lay testimony." (LC)