Opinion
April 27, 1971
Present — Marsh, J.P., Witmer, Moule and Cardamone, JJ.
Application unanimously denied and proceeding dismissed, without costs. Memorandum: In this article 78 proceeding petitioner seeks a judgment directing respondent to order a psychiatric examination of a defendant indicted for murder and for burglary in the first degree. After a plea of "not guilty" the defendant's assigned counsel were authorized by respondent to engage the services of a psychiatrist to assist in his defense. Subsequently, in connection with an application for an adjournment, defendant's counsel informed the respondent that the psychiatrist would be a material witness for the defense at the trial. Petitioner then moved for an order permitting the examination of defendant by a psychiatrist retained by the People. The application was based upon petitioner's expectation that the defendant would rely upon his psychiatrist's testimony to establish the affirmative defense of "extreme emotional disturbance for which there was a reasonable explanation or excuse" as set forth in section 125.25 (subd. 1, par. [a]) of the Penal Law. There was no reason for petitioner to believe that defendant intended to rely upon evidence of mental disease or defect under section 30.05 Penal of the Penal Law, since no written notice of such intention was served on petitioner as required by section 336 of the Code of Criminal Procedure. While there is no express provision in the code for granting a psychiatric examination to the People where the defense is based on "extreme emotional disturbance" that does not foreclose the issuance of an order directing such an examination. ( United States v. Albright, 388 F.2d 719.) As stated in the Albright case at page 724, "The maintenance of a 'fair state-individual balance' clearly required that the government be permitted to have the defendant examined." (See also, Alexander v. United States, 380 F.2d 33; Winn v. United States, 270 F.2d 326; State v. Whitlow, 45 N.J. 3, 11.) We recognize that there is a procedural problem because there is no notice requirement where the defense is based upon "extreme emotional disturbance", such as the notice requirement (Code Crim. Pro., § 336) where the defense is based upon insanity (Penal Law, § 30.05). However, this should not preclude the People from obtaining such an examination, even if it requires a recess in the trial. ( United States v. Albright, supra, p. 721.) A defendant can be examined in the presence of his counsel under the procedure established in Lee v. County Ct. of Erie County ( 27 N.Y.2d 432), wherein his privilege against self incrimination is waived (p. 441). The fact remains, however, that since there is no statute requiring such an examination and the granting of one is a matter of discretion based upon the respondent's inherent power, we cannot grant the relief requested in this mandamus petition ( Matter of Wood v. Hughes, 11 A.D.2d 893, 894, affd. 9 N.Y.2d 144; 23 Carmody-Wait 2d, New York Practice, § 145:120). Mandamus will generally not be granted to review the determination of a public body or officer in a matter involving the exercise of discretion. (23 Carmody-Wait 2d, New York Practice, § 145:106.) The determining factors in the granting of mandamus against a Judge in a proceeding pending before him are whether the writ directs him to perform an act required by law or whether it directs him in a matter lying within his discretion. In the case of the former, mandamus will lie; in the case of the latter, it is improper. The instant case falls into the latter category. Accordingly, mandamus should not be granted. (23 Carmody-Wait 2d, New York Practice, § 145:124.) Further, mandamus is not a proper means to challenge a determination made in a criminal matter. ( Matter of Wilson v. Gallucci, 32 A.D.2d 784; Matter of Bernoff v. Amoroso, 188 Misc. 845, affd. 271 App. Div. 925; CPLR 7801, subd. 2.) Moreover, relief in the nature of prohibition would not be a proper remedy since respondent neither did proceed nor is about to proceed without or in excess of his jurisdiction (CPLR 7803, subd. 2); nor would relief in the nature of certiorari be available, since that writ in criminal proceedings has been abolished. (Code Crim. Pro., § 515; 23 Carmody-Wait 2d, New York Practice, § 145:23.)