This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 171
The People &c.,
            Respondent,
        v.
Daniel Israel,
            Appellant.




          Jan Hoth, for appellant.
          Deborah L. Morse, for respondent.




STEIN, J.:

          Late one evening in June 2007, defendant happened upon
an altercation on a street in Manhattan and saw his friend being
chased by several men.    As one of those men attempted to hit
defendant's friend, defendant -- who was otherwise uninvolved in
the events leading up to the dispute -- fired a gun multiple

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times into the group, killing one person and injuring two others.
Police officers arriving at the scene of the fight witnessed
defendant begin shooting and, upon their approach, defendant
fired in their direction before eventually surrendering after he
was shot by their return fire.    Defendant was subsequently
charged with various crimes in connection with the shooting,
including two counts of murder in the second degree (Penal Law
§ 125.25 [1], [2]) and two counts of attempted murder in the
first degree (Penal Law §§ 110.00; 125.27 [1] [a] [i]).
          Defendant did not contest his identity as the shooter.
Rather, at trial, defendant pursued an extreme emotional
disturbance defense in an effort to mitigate the degree of his
criminal liability in connection with the homicide charges (see
Penal Law §§ 125.25 [1] [a]; 125.27 [2] [a]).1   Defendant
attempted to establish that, at the time of the 2007 shooting, he
suffered from post-traumatic stress disorder (PTSD) due to an

     1
        A defendant who proves an affirmative defense of extreme
emotional disturbance by a preponderance of the evidence may be
convicted of manslaughter in the first degree, rather than
murder, on the basis that "some homicides are worthy of
mitigation because they result from an understandable human
response deserving of mercy" (People v Roche, 98 NY2d 70, 75
[2002] [internal quotation marks omitted]; see Penal Law §§
125.20 [2]; 125.25 [1] [a]; 125.27 [2] [a]). Extreme emotional
disturbance is "a mental infirmity not rising to the level of
insanity at the time of the homicide, typically manifested by a
loss of self-control;" to succeed on that defense, a defendant
must prove that he or she, subjectively, was acting under the
influence of such a disturbance and that, objectively, there was
a reasonable explanation or excuse for that disturbance (Roche,
98 NY2d at 75; see People v Cass, 18 NY3d 553, 561 [2012]; People
v Diaz, 15 NY3d 40, 45 [2010]).

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altercation in October 2005 in which he was stabbed eight times
in the back during a fight with two individuals.   The defense
theory was that defendant's PTSD was triggered by seeing his
friend endangered by circumstances arguably similar to those in
which defendant had been stabbed, thus causing him to react to
the street fight by pulling out his firearm and shooting into the
fray.
          In support of this defense, Yshande Lucas -- a former
friend of defendant -- testified that, before the 2005 stabbing,
defendant was a "[l]oving, caring, [and] gentle" person but,
afterward, defendant's behavior changed in that he started
drinking alcohol excessively and became more aggressive.   In
addition, psychiatrist Stephen Bates Billick opined that the
experience of being stabbed numerous times in October 2005 caused
defendant to suffer from PTSD, which went untreated and, in
Billick's view, was triggered by the events leading up to the
shooting such that defendant was reliving the experience of his
stabbing and lacked the intent to commit murder.   On cross-
examination, Billick testified that defendant was "not a violent
person by nature" and "did[ no]t have a . . . significant history
of having done violent acts."
          The People sought to rebut defendant's extreme
emotional disturbance defense by demonstrating that his violent
actions on the day of the shooting were unrelated to any PTSD
diagnosis.   To that end, the People sought to cross-examine


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defendant's witnesses and introduce testimony regarding, as
relevant here, three incidents in which defendant allegedly
reacted with physical violence either unprovoked or in response
to minor provocation.   Through these incidents, the People
intended to disprove the assertions of Billick and Lucas that
defendant was a calm, peaceful person whose commission of the
charged crimes was explainable only through the PTSD diagnosis,
by demonstrating that -- even before his stabbing in 2005 --
defendant had an explosive personality characterized by
responding with disproportionate violence.
          Specifically, during the cross-examination of Lucas,
the prosecutor was allowed to inquire -- after informing the
court that there was a witness who observed the entire
altercation and its precipitating events -- whether Lucas had
personal knowledge of an incident, in May 2005 (before the
stabbing), during which defendant punched a fast-food restaurant
employee in front of a police officer after the employee
misunderstood his food order.    Lucas denied having any personal
knowledge of that altercation.    The People were also permitted to
ask Lucas whether he was aware that, on an occasion in 2002 (also
before the stabbing), defendant had "punched" and "choked" a girl
who had insulted his mother.    Lucas testified that he had "heard"
that the girl "said something" and defendant "pushed her" into a
wall.
          On Billick's cross-examination, the prosecutor was


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similarly permitted to inquire whether Billick's opinion that
defendant's conduct was prompted by PTSD would change if he
learned of these two instances of violence occurring before
defendant was stabbed.   Billick acknowledged that both the 2002
and 2005 altercations involved inappropriately violent reactions,
but he testified that the occurrences did not change his stated
opinion.   He was also asked whether his conclusion that defendant
was acting in a PTSD-induced haze at the time of the shooting
would be affected if he were to learn that, three years after the
shooting and while incarcerated, defendant had shattered an
inmate telephone and threatened a corrections officer.   Billick
maintained his opinion, remarking that he saw no "pervasive
pattern of violence" in defendant's actions.
           On the People's rebuttal case, neuropsychologist
William Barr testified that there was "no evidence" that
defendant was suffering from PTSD or that PTSD influenced his
behavior at the time of the shooting.   In addition, the People
called two witnesses -- a police officer and a corrections
officer -- to testify about two of the incidents into which the
prosecutor had inquired on cross-examination of defendant's
witnesses.   The testimony of the police officer who arrested
defendant following the May 2005 incident at the fast-food
restaurant revealed that -- contrary to the prosecutor's prior
assertion -- he lacked personal knowledge of the events preceding
that physical altercation; therefore, upon defendant's objection,


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the trial court offered to strike the testimony (see generally
People v Santarelli, 49 NY2d 241, 250-251 [1980]).   Defense
counsel chose, instead, to cross-examine the officer, and he
elicited testimony establishing the officer's lack of knowledge
of provocation.   The People's next witness, a corrections
officer, testified that, in August 2010 (three years after the
shooting), he observed defendant strike the receiver of an inmate
telephone against its base and then throw the telephone to the
floor because he "felt like it."   Defendant then cursed at and
threatened the officer.
          After the close of proof, the court instructed the jury
that the testimony regarding defendant's volatile behavior at
times other than the shooting was admitted for a limited purpose,
could not be considered as establishing a general criminal
propensity, and was to be used only to evaluate the psychiatric
testimony and the witnesses' bases for their testimony as to
defendant's state of mind.   Following deliberations, the jury
acquitted defendant of one count of attempted murder in the first
degree, but rejected his extreme emotional disturbance defense
and found him guilty of intentional murder in the second degree
and attempted intentional murder in the first degree, as well as
the remaining charged crimes.   The Appellate Division affirmed
(111 AD3d 413 [1st Dept 2013]), a Judge of this Court granted
defendant leave to appeal (23 NY3d 1021 [2014]), and we now
affirm.


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          Defendant argues that he was deprived of a fair trial
because the testimony elicited regarding the three uncharged bad
acts -- namely, the 2002, 2005, and 2010 incidents detailed above
-- should have been excluded.   As the People contend, defendant's
challenge to the admissibility of testimony concerning his 2005
assault of a restaurant worker is unpreserved or was waived at
trial because defendant rejected the court's offer to strike the
testimony, elected to cross-examine the police officer, and never
moved for a mistrial on the ground that the prejudice caused by
this evidence was incurable (cf. People v Albert, 85 NY2d 851,
852 [1995]; People v Heide, 84 NY2d 943, 944 [1994]).   Therefore,
such challenge is not properly before us.
          With regard to the propriety of the testimony
concerning the other two incidents, "evidence of a defendant's
uncharged crimes or prior misconduct is not admissible if it
cannot logically be connected to some specific material issue in
the case, and tends only to demonstrate the defendant's
propensity to commit the crime charged" (People v Cass, 18 NY3d
553, 559 [2012]; see People v Alvino, 71 NY2d 233, 241-242
[1987]; People v Molineux, 168 NY 264, 291-293 [1901]).
Consequently, "'[w]here . . .   the evidence proves only criminal
propensity and serves no other function in demonstrating
defendant's guilt of the crime charged, there is no legitimate
basis for its admission.   No degree of care, in assessing its
value and possible prejudice and in giving cautionary


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instructions, can render it otherwise'" (Cass, 18 NY3d at 559,
quoting Alvino, 71 NY2d at 253).    Where, however, evidence of a
defendant's bad acts or uncharged crimes is "relevant to some
material fact in the case, other than the defendant's propensity
to commit the crime charged, it is not to be excluded merely
because it shows that the defendant had committed other crimes"
(Cass, 18 NY3d at 560).
          Evidence of uncharged criminal conduct or bad acts that
are probative of a defendant's state of mind may be admissible if
the defendant "opens the door" to such evidence by putting in
issue his state of mind at the time of the commission of the
charged crime by, for example, raising an extreme emotional
disturbance or insanity defense (Cass, 18 NY3d at 563; see
Santarelli, 49 NY2d at 248-249; see also People v Bradley, 20
NY3d 128, 133 [2012]).    Nevertheless, such a defense opens the
door to the People's rebuttal evidence "only to the extent that
[the proffered] evidence has a natural tendency to disprove [the
defendant's] specific claim" (Santarelli, 49 NY2d at 249).     That
is, evidence of uncharged crimes or bad acts is admissible to
rebut an extreme emotional disturbance defense where the evidence
has "some 'logical relationship' to, and a 'direct bearing upon,'
the People's effort to disprove" the defense, and the probative
value of the evidence outweighs its prejudicial effect (Cass, 18
NY3d at 562, quoting Santarelli, 49 NY2d at 249, 252; see
Bradley, 20 NY3d at 133).    Although the balancing of probative


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value against potential prejudice is a matter that lies within
the trial court's discretion (see People v Morris, 21 NY3d 588,
595 [2013]), "the threshold question of identifying a material
issue to which the evidence is relevant poses a question of law"
(Cass, 18 NY3d at 560 n 3).
          Applying the foregoing, we conclude that the trial
court here properly allowed the prosecutor to inquire about the
2002 incident in which defendant reacted with violence to a
verbal insult to his mother.   The crux of the defense was that
defendant, a previously nonviolent person, was suffering from
PTSD as a result of the 2005 stabbing incident and that his
actions in firing into the group on the street were attributable
to his PTSD.   By raising this defense and presenting the
testimony of Lucas and Billick -- both of whom testified
regarding defendant's personality and behavior before the 2005
stabbing as compared with his behavior after that event --
defendant "necessarily put[] in issue some aspects of his
character and personal history" (Santarelli, 49 NY2d at 248).
The prosecutor's inquiries pertaining to the 2002 incident were
"directly relevant to the question of defendant's reaction
patterns" because it was an instance in which "defendant had
resorted to violence in the face of relatively mild provocation"
before the 2005 stabbing occurred (Santarelli, 49 NY2d at 252).
This altercation "ha[d] a logical and natural tendency to
disprove [defendant's] specific claim" that he was an otherwise


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peaceful person who reacted with violence only because his PTSD
was triggered by the circumstances in which the shooting took
place (Cass, 18 NY3d at 563).    In other words, it tended to
refute the subjective element of defendant's defense, i.e. that
he actually acted under the influence of PTSD.    Moreover, the
court's decision to allow this incident to be explored on cross-
examination, rather than through the testimony of a rebuttal
witness, was not improper under the facts presented here.
Defendant's direct examinations of Lucas and Billick opened the
door to questions about specific acts that undermined their
testimony about defendant's character prior to the 2005 stabbing
(see generally People v Kuss, 32 NY2d 436, 43 [1973], cert denied
415 US 913 [1974]), and the People had a good-faith basis for
their knowledge of the 2002 incident and the provocation
involved.
            We agree with defendant, however, that reference to the
2010 incident in which he broke an inmate telephone and
threatened a corrections officer should have been excluded.     The
key dispute at trial was whether defendant was suffering from
PTSD at the time of the shooting and whether, when he fired his
weapon, he was acting under the influence of that disorder.
Although evidence of defendant's disproportionately violent
reaction to mild provocation prior to the 2005 stabbing was
directly relevant to an assessment of the effects of the stabbing
on his state of mind and whether he acted out of extreme


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emotional disturbance when he committed the charged offenses less
than two years later, we fail to see the materiality of
defendant's misbehavior while incarcerated three years after the
shooting for which he was being tried.         This evidence was not
probative as it neither tended to prove nor disprove that
defendant was acting under the influence of PTSD when he fired
his weapon, and it did not advance the People's efforts to rebut
the affirmative defense.    Rather, in our view, the testimony
pertaining to this incident was relevant only insofar as it
related to defendant's general criminal propensity and,
therefore, it should have been excluded (see Bradley, 20 NY3d at
134; Santarelli, 49 NY2d at 251).       Nonetheless, the error was
harmless -- particularly in light of the limiting instructions
provided by the trial court -- because the proof was overwhelming
and there is no significant probability, on this record, that the
jury would have acquitted defendant of murder and attempted
murder but for the admission of the testimony relating to the
2010 incident (see People v Arafet, 13 NY3d 460, 467 [2009];
People v Crimmins, 36 NY2d 230, 242 [1975]).           Accordingly, the
order of the Appellate Division should be affirmed.
*   *   *   *   *   *   *     *     *      *   *   *     *   *   *     *   *
Order affirmed. Opinion by Judge Stein. Chief Judge Lippman and
Judges Pigott, Rivera, Abdus-Salaam and Fahey concur.

Decided November 18, 2015




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