The PEOPLE, etc., Respondent,
[p. 641] WEINSTEIN, Justice.
In the early morning hours of January 24, 1983, three business establishments along Raymond Avenue in Poughkeepsie were burglarized. Certain property was removed from the three premises, including approximately $50 from a paint store, the coin box from the cigarette vending machine inside a service station as well as a money bag with a few rolls of coins and approximately $10 in coins and a soup ladle from a Chinese restaurant. Defendant was arrested in the vicinity of Raymond Avenue within one or two hours of the last burglary. He was thereafter charged in Indictment No. 30/83 with three counts of burglary in the third degree. After a jury trial, defendant was found guilty of two counts of burglary in the third degree and one count of criminal trespass in the third degree. He was thereupon sentenced to indeterminate terms of three to six years on each of the burglary counts and to a definite term of 15 days on the trespass count, all terms to be served concurrently.
The defense was predicated upon a theory of diminished capacity whereby defendant, as a result of his chronic alcoholism and drug abuse, was purportedly suffering from a disease or serious mental disorder, short of insanity, which relieved him of criminal liability for his conduct on January 24, 1983.
[p. 642] On appeal, defendant maintains that the trial court's ruling excluding, on the ground of irrelevancy, his parents' testimony as to his behavioral tendencies violated his constitutional right to call witnesses of his own choosing. Defendant's efforts to present evidence in furtherance of his diminished capacity defense and to have the jury properly instructed with respect to the consequences and ramifications of that evidence were allegedly thwarted by the trial court's refusal to recognize such a defense. We find defendant's contentions to be devoid of merit and vote to affirm the judgment of conviction.
* * *
Failure to Charge Diminished Capacity
Defendant's position is that the trial court erred in refusing to grant two of his requests to charge: the diminished capacity general defense and diminished capacity to form a specific intent with regard to his alleged alcoholism. In support of his claim, defendant cites the following language of the Court of Appeals: "Although proof of a mental defect other than insanity may not have acquired the status of a statutory defense, and will not constitute a 'complete' defense in the sense that it would relieve the defendant of responsibility for all his acts (see, e.g., Penal Law, § 30.05) it may in a particular case negate a specific intent necessary to establish guilt" (People v. Segal, 54 N.Y.2d 58, 66, 444 N.Y.S.2d 588, 429 N.E.2d 107).
The defense of diminished responsibility or, more accurately,
diminished capacity to achieve the state of mind requisite for the commission
of a specific crime, has been recognized by the Supreme Court of California
(see, People v. Anderson, 63 Cal.2d 351, 46 Cal.Rptr. 763, 771-73, 406
P.2d 43, 51-53; People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr.
77, 81-84, 386 P.2d 677, 681-684).
"It can no longer be doubted that the defense of mental illness not amounting to legal insanity is a 'significant issue' in any case in which it is raised by substantial evidence. Its purpose and effect are to ameliorate the law governing criminal responsibility prescribed by the M'Naughton rule. (See Lindman & McIntyre, The Mentally Disabled and the Law (1961) 355-356.) Under that rule a defendant is not insane in the eyes of the law if at the time of the crime he knew what he was doing and that it was wrong. Under the Wells- Gorshen rule of diminished responsibility even though a defendant be legally sane according to the M'Naughton test, if he was suffering from a mental illness that prevented his acting with a malice aforethought or [p. 647] with premeditation and deliberation, he cannot be convicted of murder of the first degree. This policy is now firmly established in the law of California (People v Gorshen [51 Cal.2d 716, 336 P.2d 492], supra; People v Baker, 42 Cal 2d 550, 569-571, 268 P2d 705; People v. Sanchez, 35 Cal 2d 522, 526- 529, 219 P 2d 9; People v Wells [33 Cal.2d 330, 202 P.2d 53], supra; People v Harris, 29 Cal 678, 683-684) and where, as here, substantial evidence sufficient to inform the court that defendant is relying upon the defense of diminished responsibility is received, it must on its own motion instruct the jury as to the legal significance of such evidence, for such an instruction is necessary for the jury to be fully and fairly charged upon the relevant law. (People v Jackson, 59 Cal.2d  391, 396, 29 Cal.Rptr. 505, 508, 379 P 2d 937, 940, and cases cited therein)" (People v. Henderson, supra, 386 P.2d at p. 682).
For [p. 648] exculpation under the strict M'Naughton rule, a showing of total impairment of reason or the knowledge of right and wrong was required (Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 30.05, p. 70). The diminished capacity defense was thus engineered to ameliorate the stringency of the M'Naughton standard governing criminal responsibility.
Defendant's argument that the California view has been adopted by New York courts is far from persuasive. In People ex rel. Gray v. Tekben, 86 A.D.2d 176, 449 N.Y.S.2d 276, affd 57 N.Y.2d 651, 454 N.Y.S.2d 66, 439 N.E.2d 875), the defense of diminished capacity was raised but not recognized inasmuch as the case was decided on jurisdictional grounds.
In People v. Colavecchio, 11 A.D.2d 161, 202 N.Y.S.2d 119, a new trial was ordered at which the testimony of a psychiatrist who had examined the defendant would be admitted as bearing upon the question of whether the defendant, at the time he committed the act, possessed the necessary criminal intent required to convict him. The following principle was enunciated by the Court of Appeals in People v. Moran, 249 N.Y. 179, 180, 163 N.E. 553: "Feebleness of mind or will, even though not so extreme as to justify a finding that the defendant is irresponsible, may properly be considered by the triers of the facts in determining whether a homicide has been committed with a deliberate and pre- meditated design to kill, and may thus be effective to reduce the grade of the offense".
It bears noting that both of the aforementioned cases were decided prior to the 1965 amendment to the insanity defense whereby the more realistic standard of lack of substantial capacity was substituted for the total impairment required for exculpation under M'Naughton (Penal Law § 30.05; L. 1965, ch. 1030). The diminished capacity defense has not been explicitly recognized in this jurisdiction since that amendment. On the contrary, the 1981 Law Revision Commission rejected a proposal of the Department of Mental Hygiene regarding elimination of the insanity defense and reliance on the diminished capacity defense for dealing with persons who commit acts while suffering from mental disease or defect (1981 Law Revision Commission Report "Appendix A", 11). Although the Commission recommended that the diminished capacity defense be codified as a supplement to the insanity defense (1981 Law Revision Commission Report, 113), the Legislature declined to adopt that recommendation (L. 1980, ch. 548).
In People v. Segal (54 N.Y.2d 58, 444 N.Y.S.2d 588, 429 N.E.2d 107, supra), the very case relied upon by defendant, the Court of Appeals unequivocally recognized that proof of a mental defect other than insanity neither has the status of a statutory defense nor constitutes a complete defense in the sense of absolving defendant of responsibility for all his acts (e.g., Penal Law § 30.05). The court merely noted that such proof might, in a particular case, negate a specific intent necessary to establish guilt (People v. Segal, supra, at p. 66, 444 N.Y.S.2d 588, 429 N.E.2d 107). In this light, defendant's implication that Segal brings New York into line with California in terms of recognizing a diminished capacity defense is far afield of reality.
The mental defect alleged by defendant to negate the specific intent necessary to establish guilt is his alcoholism. While alcoholism has been recognized as an illness as well as a disability (see, Matter of Quinn v. State Comm. on Judicial Conduct, 54 N.Y.2d 386, 393, 446 N.Y.S.2d 3, 430 N.E.2d 879), there is no authority for drawing from the fact that defendant might be an alcoholic an inference that his capacity to form a specific intent is somehow diminished. At the present time, the law only affords a defendant's alcoholism the effect of mitigating guilt, at least in cases where the crime charged requires proof of a specific intent which would be lacking in one who is intoxicated (Penal Law § 15.25). The record reveals that the trial court adequately charged the jury regarding evidence of defendant's intoxication and its possible effects on his ability to form intent (see, People v. Perry, 61 N.Y.2d 849, 473 N.Y.S.2d 966, 462 N.E.2d 143). Defendant has thus been afforded all the consideration to which he is legally entitled by reason of his disability.
[p. 649] As the People have aptly noted, the effects of alcoholism, however great, are without legal significance in terms of culpability unless the defendant was under the influence of alcohol at the time of the crime. The testimony of defendant's witnesses concerning his intoxication was contradicted by the People's witnesses, whom the jurors apparently credited. Inasmuch as defendant's remaining contentions regarding the adequacy of the charge are devoid of merit, the judgment of conviction should be affirmed.
Judgment of the County Court, Dutchess County (Vogt, J.), rendered January 3, 1984, affirmed.
O'CONNOR and NIEHOFF, JJ., concur.
LAZER, J.P., dissents and votes to reverse the judgment and order a new trial, with an opinion.
LAZER, Justice Presiding (dissenting).
While I agree with my colleagues of the majority that in this State diminished capacity has not reached the status of a defense in the formal sense, it is apparent to me that proof of diminished capacity is available on the issue of specific intent and that a jury should be told of its consequences on that issue when there is a reasonable view of the evidence to support it.
Illuminating in this respect is Judge Wachtler's observation in
People v. Segal, 54 N.Y.2d 58, 66, 444 N.Y.S.2d 588, 429 N.E.2d 107, that:
"Although proof of a mental defect other than insanity may not have acquired the status of a statutory defense, and will not constitute a 'complete' defense in the sense that it would relieve the defendant of responsibility for all his acts (see, e.g., Penal Law, § 30.50) it may in a particular case negate a specific intent necessary to establish guilt (see, e.g., People v Moran, 249 NY 179 [163 N.E. 553]; People v Colavecchio, 11 AD2d 161 [202 N.Y.S.2d 119] )".
The two case citations in the Segal quote are also enlightening, for as long ago as People v. Moran, 249 N.Y. 179, 180, 163 N.E. 553 the Court of Appeals declared that "[f]eebleness of mind or will, even though not so extreme as to justify a finding that the defendant is irresponsible, may properly be considered by the triers of the facts in determining whether a homicide has been committed with a deliberate and premeditated design to kill". And in People v Colavecchio, 11 A.D.2d 161, 165, 202 N.Y.S.2d 119, the Fourth Department quoted the identical language from Moran and went on to quote the tentative draft of the Model Penal Code to the effect that " '[e]vidence that the defendant suffered from a mental disease or defect shall be admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense' ".
I also disagree with the majority's declaration that "there is not authority for drawing from the fact that defendant might be an alcoholic an inference that his capacity to form a [p. 650] specific intent is somehow diminished". The Legislature is a pretty fair authority and it has recognized that alcoholism is a mental disability. Indeed, Mental Hygiene Law § 1.03(3) defines "Mental disability" as "mental illness, mental retardation * * * alcoholism" plus a few other unhappy conditions. The section then goes on to state that "[a] mentally disabled person is one who has a mental disability". My colleagues are thus saying that there is no authority for drawing an inference that a person who is mentally disabled may have an impaired capacity to form intent. That is directly contrary to the statement in People v. Segal, supra, 54 N.Y.2d at p. 66, 444 N.Y.S.2d 588, 429 N.E.2d 107, that a "mental defect * * * may in a particular case negate a specific intent necessary to establish guilt".
The real question in this case is not whether the defense of diminished capacity exists in New York but whether the jury should have been charged as requested in court Exhibit # 2, Request # 2, that it should consider and determine from the evidence "if, at the time when the crime allegedly was committed, the defendant was suffering from some abnormal mental or physical condition * * * which prevented him from forming the specific intent or mental state essential to constitute the crime or degree of crime with which he is charged". The requested charge was very close to one the Court of Appeals referred to in People v. Moran, 249 N.Y. 179, 163 N.E. 553, supra, as telling the jury that mental disorder could be given due significance in deciding the intent issue.
Here, the jury was given some general principles relative to intent and told it could find a lack of intent due to intoxication. The jury was not told that a mental disability such as alcoholism could affect the intent or mental state essential to constitute the crime or degree of crime with which he was charged.
Accordingly, I dissent and vote to reverse the judgment and order
a new trial.