THE PEOPLE &C., RESPONDENT, v. CARL BERK, APPELLANT.
88 N.Y.2d 257, 667 N.E.2d 308, 644 N.Y.S.2d 658 (1996).
April 25, 1996
4 No. 81(1996 NY Int. 82)
Decided April 25, 1996
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Joel L. Daniels, for Appellant.
Susan D. Nusbaum, for Respondent.
KAYE, CHIEF JUDGE:
Upon discovering his wife in bed with another man, defendant fatally
shot both of them. On appeal from his convictions for second degree
murder and first degree manslaughter, defendant argues that he was
deprived of a fair trial by exclusion of expert psychiatric testimony
and by the court's charge regarding justification. We disagree with
both contentions.
I.
Shortly after their marriage in 1989, defendant and Virginia Pod Berk
began to have marital problems. In October 1992, she initiated divorce
proceedings. As a result of their marital discord, defendant spent
most evenings at his mother's house instead of sleeping at their home
in Sable Park Court. He did, however, occasionally return to Sable
Park Court, where his home office was located.
Defendant also installed an eavesdropping device on their home
telephone. On the morning of October 22, 1992, he overheard a
telephone conversation between his wife and police officer Joseph
Valvo, suggesting that the two were having an affair. That evening,
defendant went to the Sable Park Court house and found them sitting
together in the den. When defendant became upset, his wife insisted
that her relationship with Valvo was merely platonic. According to
defendant, he ordered Valvo to leave immediately, whereupon Valvo
threatened to break his legs.
The following evening, defendant received a telephone call from his
wife at his mother's house. During the conversation, his wife assured
him that she was not having an affair with Valvo and said that she
SNIPPETS:
THE PEOPLE &C., RESPONDENT, v. CARL BERK, APPELLANT.
Upon discovering his wife in bed with another man, defendant fatally shot both of them.
On appeal from his convictions for second degree murder and first degree manslaughter,
Shortly after their marriage in 1989, defendant and Virginia Pod Berk began to have marital
In October 1992, she initiated divorce proceedings.
As a result of their marital discord, defendant spent most evenings at his mother's house
On the morning of October 22, 1992, he overheard a telephone conversation between his wife
Although the trial court charged the jury as to the defense of justification, it denied
Defense counsel acknowledged that he never filed notice pursuant to CPL 250.10 informing the
Counsel also argued that the statutory notice provision was inapplicable, since Dr. Ewing
The trial court concluded that the proffered testimony fell within CPL 250.10 and that
In amending CPL 250.10 in 1982, the Legislature expanded the scope of the notice requirement
Evidence of mental disease or defect to be offered by the defendant in connection with the
This conclusion is reinforced by the purpose of the statutory notice provision: to "prevent
The bill would rectify this situation (Memorandum of Commission on Revision of the Penal Law
Opinion by Chief Judge Kaye.
|
