On February 28, 1977, Victoria Lo Consolo was brutally murdered. Defendant Victor Casassa and Miss Lo Consolo had been acquainted for some time prior to the latter’s tragic death. They met in August, 1976 as a result of their residence in the same apartment complex. Shortly thereafter, defendant asked Miss Lo Consolo to accompany him to a social function and she agreed. The two apparently dated casually on other occasions until November, 1976 when Miss Lo Consolo informed defendant that she was not “falling in love” with him. Defendant claims that Miss Lo Consolo’s candid statement of her feelings “devastated him.”

Miss Lo Consolo’s rejection of defendant’s advances also precipitated a bizarre series of actions on the part of defendant which, he asserts, demonstrate the existence of extreme emotional disturbance upon which he predicates  his affirmative defense. Defendant, aware that Miss Lo Consolo maintained social relationships with others, broke into the apartment below Miss Lo Consolo’s on several occasions to eavesdrop. These eavesdropping sessions allegedly caused him to be under great emotional stress. Thereafter, on one occasion, he broke into Miss Lo Consolo’s apartment while she was out. Defendant took nothing, but, instead, observed the apartment, disrobed and lay for a time in Miss Lo Consolo’s bed. During this break-in, defendant was armed with a knife which, he later told police, he carried “because he knew that he was either going to hurt Victoria or Victoria was going to cause him to commit suicide.”

Defendant’s final visit to his victim’s apartment occurred on February 28, 1977. Defendant brought several bottles of wine and liquor with him to offer as a gift. Upon Miss Lo Consolo’s rejection of this offering, defendant produced a steak knife which he had brought with him, stabbed Miss Lo Consolo several times in the throat, dragged her body to the bathroom and submerged it in a bathtub full of water to “make sure she was dead.”

The following day the police investigation of Miss Lo Consolo’s death began. On the evening of March 1, 1977, Nassau County Police detectives came to the apartment building in which the crime had occurred. They were in the process of questioning several of the residents of the building when defendant presented himself to the police and volunteered that he had been in the victim’s apartment on the night of the murder. While denying any involvement in the murder of Miss Lo Consolo, he professed a willingness to co-operate in the investigation.

The defendant did not contest the underlying facts of the crime. Instead, the sole issue presented to the trial court was whether the defendant, at the time of the killing, had acted under the influence of “extreme emotional disturbance”.

The defense presented only one witness, a psychiatrist, who testified, in essence, that the defendant had become obsessed with Miss Lo Consolo and that the course which their relationship had taken, combined with several personality attributes peculiar to defendant, caused him to be under the influence of extreme emotional disturbance at the time of the killing.

In rebuttal, the People produced several witnesses. Among these witnesses was a psychiatrist who testified that although the defendant was emotionally disturbed, he was not under the influence of “extreme emotional disturbance” within the meaning of section 125.25 (subd 1, par [a]) of the Penal Law because his disturbed state was not the product of external factors but rather was “a stress he created from within himself, dealing mostly with a fantasy, a refusal to accept the reality of the situation.”

The trial court in resolving this issue noted that the affirmative defense of extreme emotional disturbance may be based upon a series of events, rather than a single precipitating cause. In order to be entitled to the defense, the court held, a defendant must show that his reaction to such events was reasonable. In determining whether defendant’s emotional reaction was reasonable, the court considered the appropriate test to be whether in the totality of the circumstances the finder of fact could understand how a person might have his reason overcome.

Concluding that the test was not to be applied solely from the viewpoint of defendant, the court found that defendant’s emotional reaction at the time of the commission of the crime was so peculiar to him that it could not be considered reasonable so as to reduce the conviction to manslaughter in the first degree. Accordingly, the trial court found defendant guilty of the crime of murder in the second degree.

On this appeal defendant contends that the trial court erred in failing to afford him the benefit of the affirmative defense of “extreme emotional disturbance”. Defendant asserts that by refusing to apply a wholly subjective standard the trial court misconstrued section 125.25 (subd 1, par [a]) of the Penal Law. We cannot agree.

Section 125.25 (subd 1, par [a]) of the Penal Law provides that it is an affirmative defense to the crime of murder in the second degree where “[the] defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.” This defense allows a defendant charged with the commission of acts which would otherwise constitute murder to demonstrate the existence of mitigating factors which indicate that, although he is not free from responsibility for his crime, he ought to be punished less severely by reducing the crime upon conviction to manslaughter in the first degree.

The “extreme emotional disturbance” defense is an outgrowth of the “heat of passion” doctrine which had for some time been recognized by New York as a distinguishing factor between the crimes of manslaughter and murder. However, the new formulation is significantly broader in scope than the “heat of passion” doctrine which it replaced.

For example, the “heat of passion” doctrine required that a defendant’s action be undertaken as a response to some provocation which prevented him from reflecting upon his actions. Moreover, such reaction had to be immediate. The existence of a “cooling off” period completely negated any mitigating effect which the provocation might otherwise have had.

In Patterson, however, this court recognized that “[an] action influenced by an extreme emotional disturbance is not one that is necessarily so spontaneously undertaken. Rather, it may be that a significant mental trauma has affected a defendant’s mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore.” This distinction between the past and present law of mitigation, enunciated in Patterson, was expressly adopted by the trial court and properly applied in this case.

The thrust of defendant’s claim, however, concerns a question arising out of another perceived distinction between “heat of passion” and “extreme emotional disturbance” which was not directly addressed in Patterson, to wit: whether, assuming that the defense is applicable to a broader range of circumstances, the standard by which the reasonableness of defendant’s emotional reaction is to be tested must be an entirely subjective one. Defendant relies principally upon our decision in Patterson and upon the language of the statute to support his claim that the reasonableness of his “explanation or excuse” should be determined solely with reference to his own subjective viewpoint. Such reliance is misplaced.

In Patterson, this court was concerned with the question of whether the defendant could properly be charged with the burden of proving the affirmative defense of “extreme emotional disturbance”. In deciding that the defendant could constitutionally be required to carry such a burden, we noted that “[the] purpose of the extreme emotional disturbance defense is to permit the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them.”

Defendant, however, would read Patterson as holding that all mental infirmity, short of insanity, must constitute “extreme emotional disturbance” if such infirmity causes the defendant to become emotionally disturbed and the defendant subjectively believed his disturbance had a reasonable explanation or excuse. While it is true that the court in Patterson recognized that “extreme emotional disturbance” as contemplated by the statute is a lesser form of mental infirmity than insanity, the court did not hold that all mental infirmities not arising to the level of insanity constitute “extreme emotional disturbance” within the meaning of the statute. This question was not presented to us in Patterson and we did not decide it. Defendant’s attempt to further extend our holding in Patterson to support the proposition that the reasonableness of the explanation or excuse for defendant’s emotional disturbance must be tested from the subjective viewpoint of defendant is completely unavailing, for that case had nothing whatever to do with this issue.

 Having determined that our decision in Patterson does not require that reasonableness be tested with a completely subjective standard, we must now determine whether the language of the statute or the legislative history of the statute indicates that such a standard is required.

Section 125.25 (subd 1, par [a]) of the Penal Law states it is an affirmative defense to the crime of murder that “[the] defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.”

Consideration of the Comments to the Model Penal Code, from which the New York statute was drawn, are instructive. The defense of “extreme emotional disturbance” has two principal components — (1) the particular defendant must have “acted under the influence of extreme emotional disturbance”, and (2) there must have been “a reasonable explanation or excuse” for such extreme emotional disturbance, “the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be”. The first requirement is wholly subjective — i.e., it involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham.

The second component is more difficult to describe — i.e., whether there was a reasonable explanation or excuse for the emotional disturbance. It was designed to sweep away “the rigid rules that have developed with respect to the sufficiency of particular types of provocation, such as the rule that words alone can never be enough” and “avoids a merely arbitrary limitation on the nature of the antecedent circumstances that may justify a mitigation”. “The ultimate test, however, is objective; there must be ‘reasonable’ explanation or excuse for the actor’s disturbance”

In light of these comments and the necessity of articulating the defense in terms comprehensible to jurors, we conclude that the determination whether there was reasonable explanation or excuse for a particular emotional disturbance should be made by viewing the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for his emotional disturbance was reasonable, so as to entitle him to a reduction of the crime charged from murder in the second degree to manslaughter in the first degree.

By suggesting a standard of evaluation which contains both subjective and objective elements, we believe that the drafters of the code adequately achieved their dual goals of broadening the “heat of passion” doctrine to apply to a wider range of circumstances while retaining some element of objectivity in the process.

In this regard, the court considered each of the mitigating factors put forward by defendant, including his claimed mental disability, but found that the excuse offered by defendant was so peculiar to him that it was unworthy of mitigation. The court obviously made a sincere effort to understand defendant’s “situation” and “the circumstances as defendant believed them to be”, but concluded that the murder in this case was the result of defendant’s malevolence rather than an understandable human response deserving of mercy. We cannot say, as a matter of law, that the court erred in so concluding.

New York Court of Appeals Decisions, Selections from “People v. Casassa, 49 N.Y.2d 668,” 1980.

This case involves the tragic death of Askia Khafra, a twenty-one-year-old who died while trying to escape a fire in Beckwitt’s basement. At the time of the fire, Beckwitt was twenty-six years old. The unfortunate series of events that brought Khafra and Beckwitt together arose from Khafra’s idea to create a smartphone application or “app” called Equity Shark. Khafra envisioned Equity Shark as streamlining the process for average people to invest in “starter companies” or small businesses that had not yet gone public and needed funding. Khafra expended considerable  effort in developing the app. In furtherance of that goal, Khafra browsed internet chatrooms looking for investors. Khafra found his first investor—Beckwitt—in such a chatroom.

According to the parties’ briefs, Beckwitt invested approximately $10,000 for a 5% stake in Equity Shark. Khafra and Beckwitt went on to develop a close friendship. Khafra apparently became fascinated with Beckwitt due to Beckwitt’s wealth and financial success. Khafra looked to Beckwitt as someone who could help him grow Equity Shark, not just financially, but by assisting with computer coding and other efforts needed to develop   the app into a viable business.   Unfortunately, Equity Shark never took off as planned, and Khafra was not accepted for the Thiel Fellowship.

In order to repay Beckwitt’s $10,000 investment, Khafra agreed to dig tunnels underneath Beckwitt’s house. Beckwitt had been building tunnels and an underground bunker beneath his home because he apparently feared a nuclear war with North Korea.

Khafra was not the first  person to dig tunnels for Beckwitt. Douglas Hart, who was approximately twenty years old at the time, dug tunnels on several occasions from approximately October 2016 to April 2017. Logistically, Hart would drive his car to Maryland, meet Beckwitt at a McDonald’s, and then Beckwitt would require Hart to wear sunglasses with duct tape on them to obscure Hart’s vision while Beckwitt drove the two to Beckwitt’s home. Despite the fact that Beckwitt actually lived in Maryland, he gave Hart the impression that they were going to Virginia. When Hart visited Beckwitt to dig tunnels, he typically stayed in the tunnels and basement area for approximately a month at a time and understood that he was not allowed into the rest of the house. Hart indicated that he was physically incapable of leaving the basement/tunnel area, and that although there was a door from the basement leading directly to the outside, that door was kept locked and Beckwitt always had the key. When Hart communicated to Beckwitt that he wanted to go outside for fresh air or to get food, however, Beckwitt would oblige him. Nevertheless, Beckwitt required Hart to wear the duct-taped sunglasses upon going  outside to prevent Hart from learning the location of Beckwitt’s house.

In early 2017, Khafra began digging tunnels at Beckwitt’s home for $150 a day. Beckwitt typically picked   Khafra up at Khafra’s parents’ house in the early morning hours, around 3:00 a.m., and like Hart, required Khafra to be blindfolded during the trip to Beckwitt’s house.5 Khafra would dig underneath Beckwitt’s home approximately once a month to every two months, and would stay anywhere from a few days to a few weeks at a time. Rather than take showers, Khafra cleaned himself using disposable wipes. To relieve himself, Khafra would urinate and defecate in a bucket he kept in the tunnels.

Because Beckwitt did not own a phone, Khafra could only communicate with Beckwitt  from the basement and tunnels using Google apps   such as Google Voice and V Chat.

 Beckwitt used numerous extension cords and power strips to provide electricity to the tunnels. In his interviews with police, Beckwitt intimated his familiarity with the failing power cords and having to reset the circuit breaker.

On September 3, 2017, Khafra went to Beckwitt’s home to resume work in the tunnels. A week later, while digging   in the tunnels on September 10 at 2:32 a.m., Khafra messaged Beckwitt using Google Hangouts, stating “holy [s**t] bro there’s no power down here.” Approximately five minutes later, at 2:37 a.m., Khafra indicated that there was smoke in the basement. At 2:51 a.m., Khafra wrote again, stating that he no longer believed there was smoke in the basement, but that the lights had gone out and it was “pitch black down [there]” with no airflow. Khafra’s message asked Beckwitt to “please try to fix when you see this.”

Beckwitt did not see Khafra’s messages until he woke up at approximately 9 a.m. At 9:27 a.m., Beckwitt wrote to Khafra that there had been a “pretty major electrical failure” and that Beckwitt was switching the power over to a different circuit. Beckwitt  then went back to sleep, and awoke at approximately 3 p.m. Beckwitt went downstairs from his second-floor bedroom to get something to eat, and at around 4 p.m., he heard a beeping sound coming from the carbon monoxide detector in the dining room. Beckwitt understood the beep to signify a loss of power, which he confirmed when he could no longer hear the refrigerator running. Beckwitt waited approximately twenty to thirty minutes, believing that the circuit breaker would reset itself. When the power failed to return, Beckwitt went to the basement to manually reset the breaker. Beckwitt did not see Khafra while in the basement resetting the breaker.

On his way up the stairs from the basement to the first floor, Beckwitt heard an explosion, which he believed to be either the refrigerator’s compressor or the air conditioner. Beckwitt went to the kitchen to see if the refrigerator’s compressor was working, and immediately saw smoke rising out of the kitchen floor. Beckwitt promptly headed back to the basement to tell Khafra that there was a fire, and that Khafra needed to get out. Beckwitt heard Khafra yell “yo dude,” but he could not see him through all of the smoke. Fearing  that he would not be able to take the basement stairs to the first floor, Beckwitt exited the basement by unlocking the basement door that led directly to the outside. Because he did not have a cellular phone, and because it would have been dangerous to return to his second-floor bedroom to call 9-1-1 from his computer, Beckwitt began to yell for help. Beckwitt’s neighbors called 9-1-1.

 Firefighters from Montgomery County Fire and Rescue Service responded to Beckwitt’s home at approximately 4:23 p.m. The firefighters struggled to navigate through Beckwitt’s home to extinguish the fire, however, because, as Beckwitt concedes, “[t]he home by all accounts was a hoarder’s home.” Put simply, Beckwitt’s home was filled with an extreme amount of debris, trash, and other objects that made navigation difficult. In fact, it took firefighters approximately a minute and a half to two minutes to traverse the short distance from the basement’s side entrance to the fire. Firefighters extinguished the fire with two or three sprays of water lasting approximately fifteen to thirty seconds each. When the steam finally cleared, firefighters found Khafra’s lifeless body in the middle of the basement.

In Maryland, involuntary manslaughter is a common law felony generally defined as “the unintentional killing of a human being, irrespective of malice.” There are three varieties or theories of involuntary manslaughter: “(1) unlawful act manslaughter—doing some unlawful act endangering life but which does not amount to a felony; (2) gross negligence manslaughter—negligently doing some act lawful in itself; and (3) the negligent omission to perform a legal duty.” For the latter two variations of involuntary manslaughter—gross negligence and negligent omission to perform legal duty—”the negligence must be criminally culpable[,] i.e., grossly negligent.”

With respect to gross negligence involuntary manslaughter, the State must prove that the defendant’s conduct that resulted in the victim’s death, “under the circumstances, amounted to a disregard of the consequences which might ensue and indifference to the rights of others, and so was a wanton and reckless disregard for human life.”. The defendant “must have committed acts so heedless and incautious as necessarily to be deemed unlawful and wanton[.]” The act must manifest such a gross departure from what would be the conduct of an ordinarily careful and prudent person under the same circumstances so as to furnish evidence of indifference to the  consequences. “Moreover, the defendant, or an ordinarily prudent person under similar circumstances, should be conscious of this risk.” In addition to the above considerations, determining whether an individual’s conduct constitutes gross negligence

also involves an assessment of whether an activity is more or less likely at any moment to bring harm to another, as determined by weighing the inherent dangerousness of the act and environmental risk factors. This weighing must amount to a high degree of risk to human life—falling somewhere between the unreasonable risk of ordinary negligence   and the very high degree of risk necessary for depraved-heart murder.

Whether a defendant’s conduct rises to the level of gross negligence is a fact-specific inquiry and “[t]here is no scientific test or quantifiable probability of death that converts ordinary negligence to criminal gross negligence. Instead, “the inherent dangerousness of the act engaged in, as judged by a reasonable person[,] . . . is combined with environmental risk factors, which, together, make the particular activity more or less likely at any moment  to bring about harm to another.” The inquiry into gross negligence is not limited to an assessment of inherent dangerousness and environmental factors; “the defendant, or an ordinarily prudent person under similar circumstances, should be conscious of the risk to others.”

In Maryland, it is a longstanding principle that an employer owes an employee the duty to provide a reasonably safe place to work.

To convict a defendant of involuntary manslaughter by grossly negligent failure to perform a legal duty, the State must prove beyond a reasonable doubt that ((a) the victim’s death was caused by the defendant’s failure to perform a duty that the defendant had a legal obligation to perform, and ((b) the defendant acted in a grossly negligent manner because the defendant (a) was aware of his or her obligation to perform that duty, and (b) was aware that his or her failure to perform that duty would create a high degree of risk to human life.

We hold that the evidence was sufficient to support Beckwitt’s conviction for involuntary manslaughter under either a gross negligence or legal duty theory. In assessing the sufficiency of the evidence to support a conviction for gross negligence involuntary manslaughter, we must determine whether Beckwitt acted with the mens rea necessary to establish gross negligence, i.e., whether he acted with wanton and reckless disregard for Khafra’s life. This involves a determination as to whether Beckwitt’s conduct departed from that of an ordinarily careful and prudent person and demonstrated a disregard of the consequences to Khafra. It also requires an assessment of whether Beckwitt’s conduct was likely to bring harm at any moment, i.e., whether the inherent dangerousness of the conduct combined with environmental risk factors together made the conduct more or less likely at any moment to result in harm to Khafra.

Applying this framework, we conclude that the evidence was sufficient to establish  gross negligence involuntary manslaughter because Beckwitt’s conduct constituted a departure from the conduct that any reasonable person would have taken under the circumstances and demonstrated a disregard of the consequences to Khafra. On multiple levels, Beckwitt’s conduct constituted a departure from the conduct that a reasonable person would have engaged in under similar circumstances. No reasonable person would have required Khafra to live and work in a basement with a faulty supply of electricity for light and airflow and without a reliable way for Khafra to contact him. No reasonable person would have maintained the abhorrent conditions   that existed in the basement with debris and trash blocking Khafra’s route out in the event of an emergency. And no reasonable person would have reacted as casually as Beckwitt did on the day of the fire upon learning of the two power outages in the basement.

Beckwitt’s conduct, accompanied by other circumstances, presented a risk of danger to Khafra. Specifically,  the combination of Beckwitt’s conduct and environmental risk factors that he created in the basement produced a substantial risk of harm to Khafra—namely, that he would not be able to escape from the basement in the event of a fire or any other emergency.

The situation in the tunnels (the area in the basement in which Khafra would dig) was so dangerous that a fire investigator, Lieutenant Erin Wirth of Montgomery County Fire Rescue, a witness for the State, testified that she responded to the scene the day after Khafra’s death and was equipped with a mask that covered her entire face, an air line to oxygen tanks outside the house, a small oxygen tank on her person, and a safety harness, but she refused to crawl to the end of the tunnels because she did not feel it was safe to do so.

In this case, on top of all of the other circumstances, the evidence demonstrated that living conditions in the basement were atrocious and that, while in the basement, Khafra was entirely reliant on Beckwitt for food, basic hygiene, and escape. There were no toilet facilities. Khafra urinated  and defecated in a bucket that Beckwitt emptied every few days. Khafra cleaned himself using disposable wipes. On the day of the fire, Khafra was found dead in the tunnels, wearing no clothes.

In addition to the hazardous conditions he established in the basement, Beckwitt’s conduct on the day of the fire demonstrated an indifference to or disregard of the consequences that might befall Khafra as a result of the power outages.

In this case, with certainty, viewing the evidence in the light most favorable to the State, any rational juror could have concluded beyond a reasonable doubt, based on evidence of the dangerous conditions that Beckwitt created in the basement and his disregard for Khafra’s safety on the day of the fire, that his “conduct amounted to a wanton and reckless disregard for human life—a gross departure from the conduct of an ordinarily prudent person, without regard to the consequences or the rights of others, and [was] likely to bring harm at any moment.”. Beckwitt not only departed from conduct that a reasonable person would have taken under similar circumstances but also demonstrated both a disregard of the consequences which might ensue and an indifference to Khafra’s well-being, and so evinced a wanton and reckless disregard for Khafra’s life.

Court of Appeals of Maryland, Selections from “Beckwitt v. State, 477 Md. 398,” 2022.