Opinion
01048-2008.
Decided October 6, 2010.
On March 14, 2008, defendant was indicted on charges of Murder in the Second Degree (PL § 125.25), two counts of Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01) and two counts of Endangering the Welfare of a Child (PL § 260.10). She was subsequently arraigned on April 3, 2008, and entered a plea not guilty. The People allege that on February 4, 2008, in the County of the Bronx, defendant and Carlton Curry, acting in concert with each other, stabbed Ernestine Allen, defendant's mother, causing her death.
On June 2, 2010, defendant served notice, pursuant to CPL § 250.10(2), of her intent to present at trial psychiatric evidence in support of her affirmative defense that she acted under the influence of extreme emotion disturbance. Defendant urges this Court to permit her to serve and file late notice "in the interest of justice and for good cause shown" (CPL § 250.10).
The People move for an order precluding defendant from introducing psychiatric evidence at trial. They argue that defendant's notice pursuant to CPL § 250.10(2) is both untimely, because it was filed over two years beyond the statutorily defined guideline, and inadequate, in that the notice fails to provide the People with the precise nature of defendant's claim or with the psychiatric evidence to be offered at trial. Finally, the People argue that defendant failed to establish good cause to excuse the late filing of the notice.
Defendant's original notice from June 2, 2010, stated only that defendant intended "to present at trial psychiatric evidence in support of her affirmative defense that she acted under the influence of extreme emotional disturbance." On July 30, 2010, defendant filed a second notice naming her expert witness and stating that, based on his examination of defendant on May 25, 2010, he "is of the opinion that on February 4, 2008, Ms. Allen was suffering from Posttraumatic Stress Disorder and, as a result, she acted under the influence of extreme emotional disturbance."
For the reasons that follow, the People's motion to preclude psychiatric evidence is denied.
Analysis
CPL § 250.10(2) states, "Psychiatric evidence is not admissible upon a trial unless the defendant serves upon the people and files with the court a written notice of his intention to present psychiatric evidence. Such notice must be served and filed before trial and not more than thirty days after entry of the plea of not guilty to the indictment. In the interest of justice and for good cause shown, however, the court may permit such service and filing to be made at any later time prior to the close of evidence." It is undisputed that defendant filed notice of her intent to present a psychiatric defense well beyond the statutorily mandated 30 days.
A decision to preclude a defendant from offering a psychiatric defense has constitutional implications. The Court of Appeals has stated that:
The decision whether to allow a defendant, "[i]n the interest of justice and for good cause shown," to serve and file late notice of intent to introduce psychiatric evidence is a discretionary determination to be made by the trial court (CPL § 250.10[2]; see, People v Di Donato, 87 NY2d 992). The trial court's discretion in this matter, however, is not absolute. Exclusion of relevant and probative testimony as a sanction for a defendant's failure to comply with a statutory notice requirement implicates a defendant's constitutional right to present witnesses in his own defense ( see, US Const 6th, 14th Amends; see also, Ronson v. Commissioner of Correction, 604 F2d 176, 178, supra). In making its determination, the trial court must therefore weigh this right against the resultant prejudice to the People from the belated notice.
People v. Berk, 88 NY2d 257, 365-66 (1996). "[T]rial courts must be vigilant in weighing a defendant's constitutional rights against the resultant prejudice to the People from the belated notice' ( Berk, 88 NY2d at 266) . . . [and] enjoy wide discretion . . . [to] adjourn proceedings to give the People time to gather rebuttal evidence or, depending on the circumstances and the nature of defendant's proof, permit the trial to proceed without a continuance." People v. Diaz , 15 NY3d 40 , 47 (2010).
In order to establish good cause to file late notice of an intent to introduce psychiatric evidence, defendant must provide an explanation for the delay and demonstrate that the defense has merit, and must provide enough information to enable the prosecution and the court to discern the general nature of the alleged psychiatric malady and its relationship to a particular, proffered defense. People v. Rizzo, 267 AD2d 1041, 1042 (4th Dept 1999), lv denied, 95 NY2d 838 (2000). For the reasons that follow, this Court concludes that defendant has met this burden and sufficiently established good cause for the late filing of notice. Moreover, the People have not demonstrated that they will be unduly prejudiced.
First, defense counsel, Amy Gallicchio, was only assigned to this case in June of 2009, after prior counsel, Lisa Hoyes, resigned from the Bronx Defender's office. Ms. Gallicchio states that her "direction and focus was toward plea bargaining and the preparation of a thorough and complete pre-pleading report. That was a time consuming process." Defendant submitted a pre-pleading memorandum in February of 2010, asking the People to consider a plea to Manslaughter in the First Degree. Moreover, Ms. Gallicchio states that, "We were always of the opinion that EED was the most viable defense with full knowledge that if successful, Ms. Allen would be convicted of manslaughter. It seemed premature to hire an expert if the end result of the plea negotiations would be a plea to manslaughter." When plea negotiations were unsuccessful, Ms. Gallicchio indicated that defendant would seek a defense of extreme emotional disturbance.
Further, while the People repeatedly point out that defendant's notice was filed extremely late, they have not stated with any specificity how they have been prejudiced by this late filing. Defendant was only examined by Dr. Richard G. Dudley, Jr. on May 25, 2010. Moreover, because of co-counsel's trial schedule this case will not be tried until January of 2011. There is ample time between now and then for the People to have defendant examined by their own expert and to prepare for trial.
The People's reliance on People v. Hill , 10 AD3d 310 (1st Dept 2004), aff'd, 4 NY3d 876 (2005), is misplaced, because it is easily distinguished from this case. In Hill, the trial court denied defense counsel's request to conduct a psychiatric examination of the defendant more than three years after the crime, after counsel had represented to the trial court shortly before trial that she would not seek an insanity defense. On the day jury selection began, defense counsel stated that she wished to proceed under the defenses of insanity and extreme emotional disturbance and to have defendant examined by a psychiatrist. The First Department held that the trial court properly exercised its discretion in denying defense counsel's request in part because "[a]llowing counsel to flirt with yet new insanity-related theories at the late stage of jury selection would be prejudicial to the People's ability to present a case." 10 AD3d at 312. Here, by contrast, no trial has even been scheduled yet, and no date will be scheduled for at least three months. Moreover, while defendant did not file formal notice of an intention to present a psychiatric defense until June 2, Ms. Gallicchio told the Court at a status conference on May 10 that she wanted to have defendant evaluated regarding a possible EED defense. Indeed, defendant points out that her pre-pleading memorandum "more than suggests such a defense." Thus, as defendant also argues, "the defense of EED should not come as a surprise to the prosecution" (Gallicchio Aff. at p. 5).
The People's reliance on People v. Umali , 37 AD3d 164 (1st Dept 2007), aff'd, 10 NY3d 417 (2008), cert denied, 129 S Ct 1595 (2009), People v. Lewis, 302 AD2d 322 (1st Dept), lv denied, 100 NY2d 540 (2003), People v. Rivers, 281 AD2d 348 (1st Dept), lv denied, 96 NY2d 923 (2001) and People v. Rizzo, supra, is similarly misplaced. In Umali, the First Department concluded that the trial court properly exercised its discretion in precluding defendant from introducing expert testimony on posttraumatic stress disorder, where defendant purposefully failed to provide the People with CPL § 250.10 notice in order to seek a strategic advantage. 37 AD2d at 165. In Lewis, the First Department held that preclusion of the defense did not deprive the defendant of his constitutional right to present a defense, where his notice of intent to present a psychiatric defense was untimely, he failed to establish good cause for the late notice, and the trial court determined, based upon the extensive psychiatric information before it, that defendant had no viable psychiatric defense. 302 AD2d at 324. Yet, a federal court later granted Lewis's petition for a writ of habeas corpus on the grounds that the procedure used at his competency hearing violated due process. Lewis v. Ryan, 573 F Supp 2d 804 (SDNY 2008). In Rivers, the First Department again concluded that the trial court properly exercised its discretion in precluding defendant from testifying that his state of mind at the time of the incident had been affected by the use of a prescribed medication, where defendant never served written notice pursuant to CPL § 250.10 and only served oral notice shortly before trial. 281 AD2d at 348. See also People v. Rizzo, 267 AD2d at 1042 (inadequate, late notice; trial court properly precluded defense). By contrast, here, there is absolutely nothing to suggest that defendant sought a strategic advantage in filing late notice of her intent to offer psychiatric evidence or that her psychiatric defense is not viable.
For these reasons, the People's motion to preclude a psychiatric defense is denied. However, the People's request for an order compelling discovery concerning defendant's psychiatric defense, all notes and memoranda taken for the preparation of psychiatric reports and the names of the witnesses she intends to call who will provide psychiatric evidence, is granted. See People v. Holland, 173 Misc 2d 286, 288 (County Ct Westchester County 1997).
This opinion constitutes the decision and order of the court.