Opinion
08-035-I.
Decided September 2, 2008.
Julie A. Garcia, Esq., Essex County District Attorney, Elizabethtown, New York.
Brandon E. Boutelle, Esq., Essex County Deputy Public Defender, Elizabethtown, New York, for the defendant.
Motion by the prosecution to compel the defendant to comply with CPL § 250.10 by specifying the nature of the psychiatric defenses to be asserted at trial and describing the relationship between the defendant's specific psychiatric conditions, all prior to any examination by the prosecution's expert, compelling disclosure of all records and reports of the defendant's expert, requiring the defendant to submit to an examination by the people's expert, and directing defendant at trial to make an offer of proof by his own testimony prior to the submission of evidence of extreme emotional disturbance.
The defendant is charged by a seven-count indictment with having committed the crimes of robbery in the first degree ( Penal Law § 160.15[3] ), a class B violent felony, attempted assault in the first degree ( Penal Law § 160.15[3]), a class C violent felony, attempted assault in the third degree ( Penal Law § 160.15[3]), a class B misdemeanor, criminal possession of a weapon in the third degree ( Penal Law § 160.15[3]), a class D violent felony, criminal possession of a controlled substance in the seventh degree ( Penal Law § 160.15[3]), a class A misdemeanor, and menacing in the second degree ( Penal Law § 160.15[3]), a class A misdemeanor. The charges arise out of an incident alleged to have occurred on April 5, 2008 in the Town of Moriah, Essex County, New York when the defendant is claimed to have robbed a local pharmacy of prescription drug medication while brandishing a knife and assaulting two employees.
I. Sufficiency of Defendant's CPL § 250.10 Notice
The prosecution contends that the defendant's notice served pursuant to the requirements of CPL § 250.10(2) is facially insufficient in that it does neither states the specific nature of the psychiatric defenses upon which the defendant will rely at trial nor describe the relationship between the specific psychiatric conditions listed therein and such defenses. The defendant's notice, served fifteen days after his arraignment on the indictment and prepared using information contained in his extensive treatment records, provides as follows:
The defendant hereby gives notice of his intention to offer the following psychiatric evidence (not exhaustive/inclusive and subject to future amendment) in support of: the affirmative defense of lack of criminal responsibility by reason of mental disease or defect (CPL § 250.10[1][a]); and/or, negation of any mens rea elements of the offenses charged herein (CPL § 250.10[1][a]).
a.Substance Abuse Induced Mood Disorder:DSM-IV 292.84
b.Substance Abuse Induced Psychotic Disorder: DSM-IV 292.11
c.Brief Psychotic Disorder: DSM-IV 298.8
d.Delusional Disorder: DSM-IV 297.1
e.Anxiety Disorder / Anxiety Disorder NOS: DSM-IV 300.02 / 300
f.ADHD Inattentive Type: DSM-IV 314.00
g.Amphetamine Intoxication / Mood Disorder / Psychotic Disorder: DSM-IV 292.xx
h.Opiod Intoxication / Mood Disorder / Psychotic Disorder: DSM-IV 292.xx
i.Major Depressive Disorder, Recurrent: DSM-IV 296.3x
j.Dysthymic Disorder: DSM-IV 300.4
k.Polysubstance Abuse / Intoxication / Withdrawal
"CPL 250.10 requires that the defense furnish timely notice of the CPL 250.10(1) category or categories on which it intends to rely. The statute also contemplates that the notice contain 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. Almonor, 93 NY2d 571, 581, 693 NYS2d 861, 868, 715 NE2d 1054, 1060). In Almonor, the Court of Appeals determined that a defendant's notice, although untimely, complied with the statute when it "revealed that he intended to rely on the insanity affirmative defense and, in addition, on a defense involving a lack of assaultive intent, both based on acute stress disorder" ( Id.).
The prosecution's motion is granted to the extent that the defendant is directed to serve a corrected notice specifying which of the various disorders form the basis or bases for each psychiatric defense. While it may well be that the defendant will rely on evidence of all of the listed disorders to support both defenses, a reading which can be made of the present notice, such is not clear from the wording used. Since a defendant is required only "to provide information sufficient to allow the prosecution . . . to discern the general nature of' defendant's claimed mental disease or defect, thereby allowing the People to conduct their own investigation with respect to the issue [citations omitted]" ( People v. LeFebvre , 45 AD3d 1175 , 1175, 846 NYS2d 699, 700[italics added]), the prosecution's motion to compel the defendant to "provide sufficiently detailed written notice describing the relationship between that defense (or defenses) and" each specified disorder is denied. No basis for such detailed, as opposed to general, relief exists either in the statute or in case law.
II. Compel Disclosure of Records/Reports
The prosecution's motion for disclosure of the records and reports of defendant's examining psychiatrist is denied as premature. In response to the motion, defense counsel asserts that the defendant has not yet been examined by its psychiatric expert due to budget limitations of the public defender's office, and that upon funding being approved the examination will proceed and the prosecution will be furnished with copies of all records and reports of such expert. Counsel also represents that "volumes of Mr. Budwick's past medical/psychiatric records" have been provided to the prosecution and that "new/additional records" will be furnished as defense counsel receives them. As the prosecution does not dispute that it has received the defendant's records to date, this aspect of the prosecution's motion is denied without prejudice.
III. Compel Psychiatric/Psychological Examination of Defendant
The defendant consents to "an examination by a psychiatrist or licensed psychologist . . . designated by the district attorney" ( CPL § 250.10[3]). The only dispute between the parties is the prosecution's insistence that such examination occur only after receipt of all of the records and reports of the defendant's examining expert. There is no provision in the statute authorizing a court to require a defendant to undergo an examination by his/her own expert before any examination sought by the district attorney. Had the Legislature so intended, it would have included such a provision in the statute.
Since pretrial discovery in a criminal case "by the defense and prosecution is governed by statute" ( People v. Copicotto, 50 NY2d 222, 225, 428 NYS2d 649, 651, 406 NE2d 465, 467), the motion to compel the defendant to submit to an examination by a psychiatrist or licensed psychologist designated by the prosecution is granted subject only to the provisions of CPL § 250.10(3).
IV. Compel Defendant To Testify/Trial Offer of Proof
The defendant here asserts not only the affirmative defense of insanity not responsible by reason of mental disease or defect ( Penal Law § 40.15) but also that "he suffered from a mental illness which precluded him from forming the mental state required for the charged offenses" ( People v. Angelo, 88 NY2d 217, 221, 644 NYS2d 460, 461, 666 NE2d 1333, 1334). The prosecution seeks an order directing the defendant to testify at trial or make an offer of proof as a precondition to expert testimony "concerning how defendant intends to assert a psychiatric defense" other than the insanity defense, namely, whether the defendant's mental condition negated any required mens rea element of one or more of the crimes charged, asserting that CPL § 60.55 does not apply to such a defense.
The District Attorney's affidavit also refers to "the defendant's claims of Extreme Emotional Disturbance" ( affidavit, ¶ 24). The defendant has not raised any such defense, which is available only in prosecutions for murder in the first and second degrees ( CPL § 250.10[1][b]; Penal Law § 125.25[1][a], § 125.27[2] [b]), crimes of which this defendant is not charged.
CPL § 60.55 governs the trial testimony of "a psychiatrist or licensed psychologist . . . concerning the defendant's mental condition at the time of the conduct charged to constitute a crime" ( CPL § 60.55[1] ) and renders admissible at trial "[a]ny statement made by the defendant to a psychiatrist or licensed psychologist during his examination of the defendant . . . upon the issue of the affirmative defense of lack of criminal responsibility by reason of mental disease or defect, whether or not it would otherwise be deemed a privileged communication" ( CPL § 60.55[2]). The court must instruct the jury not to consider such statements in determining "whether the defendant committed the act constituting the crime charged" ( CPl § 60.55[2]).
It is clear that CPL § 60.55 is inapplicable where a defendant seeks "to use psychiatric testimony to negate a necessary element of the offenses charged" ( People v. Angelo, supra at 222, 644 NYS2d at 462, 666 NE2d at 1335). However, CPL § 250.10 is not so limited ( People v. Berk, 88 NY2d 257, 644 NYS2d 658, 667 NE2d 308, 311, cert. denied 519 US 859, 117 SCt 160, 136 LEd2d 104 ["term `mental disease or defect' as used in CPL 250.10 necessarily includes mental infirmities that would not sustain an insanity defense"]; People v. Cruickshank, 105 AD2d 325, 330-331, 484 NYS2d 328, affirmed 67 NY2d 625, 499 NYS2d 663, 490 NE2d 530; see also, e.g., People v. Yates, 209 AD2d 888, 736 NYS2d 798 [notice required where defendant claims medications affected ability to give voluntary statement]; People v. Little , 24 AD3d 1244 , 809 NYS2d 312 [notice required where defendant claims he has low intelligence]; but see People v. Davis, 850 NYS2d 307 {48 AD3d 1086} [no notice where defendant claims inability to read]). Upon a defendant's service of a notice under that statute, the prosecution has "the right to an examination of the defendant by a psychiatrist or a psychologist" ( People v. Smith , 1 NY3d 610 , 612, 776 NYS2d 198, 199, 808 NE2d 333, 334) as to any defense asserted in that notice ( CPL § 250.10[3]; see also People v. Segal, 54 NY2d 58, 444 NYS2d 588, 429 NE2d 107). A defendant serving such a notice places his or her mental condition in issue and waives both the physician-patient privilege and the privilege against self-incrimination as to statements made by him or her to a defense or prosecution expert "with respect to the facts upon which the physician's opinion is based" ( People v. Jackson, 244 AD2d757, 758, 665 NYS2d 968, 970, appeal denied 91 NY2d 926, 670 NYS2d 408, 693 NE2d 755; see also People v. Al-Kanani, 33 NY2d 260, 264, 351 NYS2d 969, 307 NE2d 43, cert. denied 417 US 916, 94 SCt 2619, 41 LEd2d 220; Matter of Lee v. County Ct. of Erie County, 27 NY2d 432, 441-442, 318 NYS2d 705, 267 NE2d 452, cert. denied 404 US 823, 92 SCt 46, 30 LEd2d 50; People v. Jackson, supra [defenses of insanity and extreme emotional disturbance]; People v. Cruickshank, supra [defenses of justification and extreme emotional disturbance]). "In no event, however, will the waiver extend beyond the issue of the defense, and the prosecution may not use psychiatric evidence as a means of proving guilt ( see, People v. Wilkins, supra Matter of Lee v. County Ct. of Erie County, supra, at 441-442, 318 NYS2d 705, 267 NE2d 452)" ( People v. Jackson, supra at 758, 665 NYS2d at 970).
"[T]he admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court" ( People v. Lee, 96 NY2d 157, 162, 726 NYS2d 361, 364, 750 NE2d 63, 66), which must in the first instance "assesses whether the proffered expert testimony would aid a lay jury in reaching a verdict'" ( Id.). "The underlying assumption of virtually all the cases dealing with expert testimony is that the jury must have the facts upon which the expert bases his opinion in order to evaluate the worth of that opinion [citations omitted]" ( People v. Samuels, 302 NY 163, 172, 96 NE2d 757, 762). Thus, "in order for an expert's opinion to qualify as evidence supplying a necessary element of proof on a sufficiency review, it must rest on facts in evidence or on those personally known and testified to by the expert" ( People v. Jones, 73 NY2d 427, 430, 541 NYS2d 340, 341, 539 NE2d 96, 97), and "an expert who relies on necessary facts within personal knowledge which are not contained on the record is required to testify to those facts prior to rendering the opinion ( see, Weibert v. Hanan, 202 NY 328, 331, 95 NE 688)" ( Id.). "[T]here is no requirement that an expert have personal knowledge of the facts underlying her opinion ( see, Fisch on New York Evidence, § 429, at 280 [ expert witness may base his opinion on facts which are not within his personal knowledge'])" ( People v. Miller, 91 NY2d 372, 379, 670 NYS2d 978, 982, 694 NE2d 61, 65) and may instead "rest on facts in evidence' [citation omitted]" ( Id.).
An expert testifying regarding a psychiatric defense, whether for the defense or the prosecution, may testify not only as to statements made to such expert by the defendant "with respect to the facts upon which the physician's opinion is based" ( People v. Jackson, supra) but may also "rely on material, albeit of out-of-court origin, if it is of a kind accepted in the profession as reliable in forming a professional opinion,' or if it comes from a witness subject to full cross-examination on the trial'" ( People v. Goldstein , 6 NY3d 119 , 124, 810 NYS2d 100, 103, 843 NE2d 727, 730, [psychiatrist's testimony recounting hearsay statements of third parties upon which she relied in part as basis for opinion violated federal and state constitutions' confrontation clauses] quoting People v. Sudgen, 35 NY2d 453, 459-460, 363 NYS2d 923, 929, 323 NE2d 169,173; see also Hambsch v. NYCTA, 63 NY2d 723, 480 NYS2d 195, 469 NE2d 516).
A defendant has a constitutional right to not "be compelled in any criminal case to be a witness against himself or herself" ( N.Y Const. Art. 1, § 6; see also U.S. Const. Amends. V and XIV). No legal authority has been cited by the prosecution, nor found by this court, requiring a criminal defendant to testify as a precondition to the admissibility of evidence, let alone expert testimony, at trial to support properly asserted affirmative or mitigating defenses to a charged crime. To compel a defendant to testify whenever a psychiatric defense other than insanity is asserted would have a chilling effect on a defendant's fundamental right "to testify in his own defense, or to refuse to do so" ( Harris v. New York, 401 US 222, 225, 91 SCt 643, 645, LEd2d). It remains to be seen what evidence will be contained in the record at trial here at the time of the expected expert testimony, such as the defendant's medical and mental health treatment records (if any), the testimony of witnesses regarding their observations of the defendant at or about the time the charged offenses were allegedly committed, and the testimony by one or more experts of facts within their personal knowledge including the defendant's relevant factual statements. Whether a sufficient evidentiary foundation will exist to permit expert opinion evidence on the psychiatric defenses is a matter which can only then be determined, but it is reasonably possible for a sufficient evidentiary foundation to be laid for such expert testimony without the need for the defendant to make an offer of proof or take the stand and testify. If not, the defendant will face the choice of testifying (or making an offer of proof) or being precluded from introducing expert opinion evidence in support of his psychiatric defenses.
Should a defendant testify, the prosecution may use any of the defendant's statements for impeachment purposes ( People v. Szlekovics , 19 AD3d 1036 , 796 NYS2d 794, leave to appeal denied 5 NY3d 810, 803 NYS2d 39, 836 NE2d 1162, certiorari denied 546 US 1116, 126 SCt 1082, 163 LEd2d 900).
Based upon the foregoing, the prosecution's motion to require the defendant to testify or make an offer of proof at trial regarding psychiatric the defenses, other than insanity, specified in his notice under CPL § 250.10 is denied.
V. Other Relief
To the extent that this decision and order has not addressed any request for relief in the prosecution's pretrial motion, the same is hereby denied.
IT IS SO ORDERED .