Opinion
931/09.
September 30, 2010.
Charles J. Hynes, District Attorney, Kings County, Brooklyn, NY, by ADA Cynthia Lynch, Attorney for the People.
Jonathan Fink, Esq., Brooklyn Defender Services, New York, NY, Attorney for the Defendant.
Holly Maguigan, Esq., New York, NY, Attorney for STEPS to End Family Violence.
Defendant stands indicted for manslaughter and has served and filed notice that she intends to present psychiatric evidence that she suffers from battered woman syndrome in support of the defenses of justification and diminished capacity ( CPL 250.10 [2]).
In preparation for trial, the district attorney subpoenaed records from the Steps to End Family Violence Program, a subsidiary of Edwin Gould Services for Families and Children, Inc. That agency now moves to quash the subpoena ( CPLR 2304) on the grounds that it violates the defendant's attorney-client privilege ( CPLR 3101 [b]; 4503) and seeks impermissible discovery of the defense attorney's work product ( CPLR 3101 [c]; CPL 240.10 [2]).
The motion is denied.
With respect to the claim of attorney-client privilege, it is settled law that when an accused places her psychiatric condition in issue, the privilege is waived ( People v Edney, 39 NY2d 620; People v Al-Kanani, 33 NY2d 260; Wright v Duncan, WL 761193, EDNY; People v Cruickshank, 105 AD2d 325; People v Chavis, 181 Misc 2d 540).
This waiver is "grounded in principles of fundamental fairness and is essential to preserving the integrity of the fact-finding process" ( People v Berk, 88 NY2d 257). It is also designed to prevent a defendant from claiming a psychological condition as a defense and at the same time asserting the privilege to prevent the prosecution from finding out whether the claim is true ( Koump v Smith, 25 NY2d 287; People v Wilkins, 101 AD2d 957).
In other words, where the defense seeks to introduce "evidence of mental disease or defect" in connection with a defense ( CPL 250.10 [1][c]), which includes battered woman syndrome ( People v Seeley, 186 Misc 2d 715; People v Trusky, 7 P.3d 5) the search for truth requires that the evidence be tested.
The contention that the STEPS records constitute the defense attorney's work product is likewise not persuasive. Although in the civil context the term is broadly phrased and not defined ( CPL 3101 [c]), in the criminal context it is narrowly defined as "property to the extent that it contains the opinion, theories or conclusions of. . . defense counsel." It is difficult to imagine how an opinion of defendant's attorney could wind up in the notes of an independent social worker.
The case of People v Green, 153 AD2d 439, is instructive. In that case, the trial court allowed the prosecution to subpoena a fingerprint expert, hired by the defense, but not called as a defense witness, and present him as a prosecution witness. The court upheld the decision since the expert's opinion did not involve any confidential communications between the attorney and the expert.
In Washington v Pawlyk, 800 P.2d 838, the defense moved to quash a subpoena seeking "any and all psychological testing that may have been performed on the defendant by anyone." In denying the motion, the Washington Supreme Court ruled that
". . . the work product doctrine [does not] preclude the State's discovery of [the defense retained] psychiatrist's reports or his testimony relating thereto, which are based on the psychiatrist's examination of a defendant who intends to rely on the insanity defense."
The court went on to state that "when a defendant pleads mental irresponsibility, every act of his life is admissible."
In People v Trusky, 7 P.3d 5, the Supreme Court of Wyoming determined that "basic fairness and integrity demand that we allow the prosecution access to any reports bearing on [defendant's] mental state in order to avoid giving her an unfair advantage." (See also: Gray v District Court, 884 P.2d 286 [Colorado]; Hudman v State, 205 P.2d 1175 [Oklahoma]; State v Carter, 641 SW2d 54 [Missouri]; State v Schneider, 402 NW2d 779 [Minnesota]).
Nor is the court, in the first instance, convinced that the records of STEPS have anything to do with the defense attorney's preparation for trial, despite the claim that the primary purpose of its services "is the preparation for her defense." This claim is based on a contract with the City of New York to "provide an alternative to incarceration for female felony and misdemeanor defendants who have a history of domestic violence." A review of the contract provides no support for the agency's claim that it is somehow part of the defense team, as opposed to a treatment provider subject to subpoena like any doctor or hospital having information relevant to a criminal prosecution.
In fact, on March 20, 2009, the defendant's attorney made a bail application to the court, in part arguing that STEPS would monitor and provide treatment to the defendant in the community, in this way providing assurance of her return to court. The court granted the application and released the defendant. Ashley Hatcher-Peralta, the legal services coordinator for STEPS, submitted a letter to the court detailing the program's supportive services and providing assurance to the court that "in the past, battered women with charges including homicide and assault have been released to STEPS' supervision pending trial. All of these clients have reported for all court dates and none of them has become further involved with the criminal justice system during the course of our supervision."
It is clear then, that STEPS was recognized by the court as a treating and monitoring agent and not a hireling of the defense attorney. Treatment and monitoring by STEPS thus became a condition of bail. To analogize this relationship to assisting with the defense is, therefore, flawed. Neither the court nor the district attorney are parties to nor in privity with any agreement between STEPS and the City. It cannot, therefore, stand as a basis for the suppression of the subpoena.
This constitutes the Decision and Order of the court.