Thank You For Submiting Feedback!
N.Y. Penal Law § 125.25 defines three types of murder in the second degree: intentional murder, depraved mind murder, and felony murder. Only subdivision (1), dealing with intentional murder, contains a provision for mitigation of the charge by the affirmative defense of extreme emotional disturbance.
Delphi Cox, a 19-year-old Utica resident, was found dead in her apartment on June 3, 1990, the victim of multiple knife wounds and strangulation. According to testimony at trial, she and Kamal Fardan had spent the previous afternoon and evening smoking crack cocaine and drinking beer. At least three times, Fardan left the apartment to purchase more cocaine. Fardan testified that early in the afternoon Ms. Cox promised to have sex with him but when Fardan later pressed his demand for sex, Ms. Cox refused. An argument ensued and, in a fit of anger, defendant picked up a kitchen knife and began chasing and stabbing her. After cornering her in a bathroom, he found an electrical cord and strangled her. Over the next few hours, Fardan left the apartment twice, taking with him each time personal items owned by Ms. Cox to sell on the street for more drugs. The next day Fardan asked an acquaintance to help him destroy the evidence by burning the building. He was arrested after the acquaintance notified police. Fardan was charged, in the alternative, with intentional murder and depraved mind murder as well as other counts. At trial, Fardan’s principal contention was that he acted under extreme emotional disturbance, brought on by the victim's refusal to have sex, and therefore was liable only for manslaughter and not murder. The court charged the jury that extreme emotional disturbance was an affirmative defense that could mitigate a charge of intentional murder to manslaughter, but declined to give the same charge on the depraved mind murder count. Relying on the plain language of Penal Law § 125.25, the court concluded that the Legislature had not authorized such a defense to depraved mind murder. The jury acquitted Fardan of intentional murder and the lesser included charge of manslaughter and instead convicted him of depraved mind murder. The Appellate Division affirmed and leave to appeal was granted by a Judge of this Court.
Can the affirmative defense of extreme emotional disturbance be used to mitigate a charge of depraved mind murder?
The appellate court affirmed an order upholding Fardan’s conviction for second-degree murder under N.Y. Penal Law § 125.25 and other offenses. Fardan’s principal contention at trial was that he acted under extreme emotional disturbance brought on by the victim's refusal to have sex with him, and therefore he was liable only for manslaughter, not murder. The appellate court held that the trial court was correct in refusing to charge the jury on the affirmative defense of extreme emotional disturbance where the legislature had not authorized such a defense to depraved-mind murder. The court held that contrary to defendant's assertions, heat of passion and extreme emotional disturbance were not identical concepts. According to the appellate court, the trial court properly allowed cross-examination about Fardan’s prior robbery conviction, evidence that had been precluded by a Sandoval ruling, to rebut testimony by the defense psychiatric expert that he would classify Fardan as a nonviolent type of individual. The trial court gave the jury the necessary limiting instruction, stating that the testimony was not to be used to determine guilt.