In People v. Diaz (62 AD3d 157, 876 NYS2d 69, 2009 NY Slip Op 1993 [2009]) the Appellate Division, Second Department thoughtfully examined the case law involving CPL 250.10. The court was prompted to answer the question of whether a defendant who only offers lay testimony in support of the defense of EED is required pursuant to CPL 250.10 to serve and file a notice of intent to proffer psychiatric evidence and to submit to an examination by a psychiatrist designated by the People. Diaz involved a defendant who strangled his former girlfriend to death. Defendant testified that the night of the murder, he visited the victim at her apartment where he beat and strangled her after an argument. The defendant testified that the victim had told him that the youngest of his two children had been fathered by another man which in the defendant's words made him go "crazy." On the eve of trial Supreme Court Justice John M. Leventhal granted the defendant leave to serve a late notice of intent pursuant to CPL 250.10. Thereafter the People requested that the defendant be examined by their own expert, which the defense objected to because the defendant intended to establish EED through lay testimony only. The court permitted the examination of the defendant by the People's own expert. Judge Leventhal issued a written decision determining the "admissib[le] and permissible scope of the People's expert testimony" (id. at 159) and found that "the court-ordered examination did not violate the defendant's Fifth Amendment right against self-incrimination because the testimony of the People's expert would only be admissible if the defendant waived that right by testifying to a mental state or to facts which the jury could infer his EED defense." (Id. at 160.) The Appellate Division affirmed Judge Leventhal's holding and further expressed that "if the defendant can raise the defense of EED through the submission of lay testimony, the People must be given an opportunity to counter that defense with relevant information from any source. To hold otherwise would allow a defendant to interpose the defense of EED on the eve of trial, as did the defendant here, without affording the People the opportunity to obtain evidence to counter the defense, thereby placing them at an unfair disadvantage." (Id. at 163.)