People v. D.X.Z.

Full title: The People of the State of New York, Plaintiff, v. D.X.Z., Defendant.

Court: Supreme Court, Queens County

Date published: Oct 3, 2011

2011 N.Y. Slip Op. 51784 (N.Y. Sup. Ct. 2011)

Opinion

1823/2010

10-03-2011

The People of the State of New York, Plaintiff, v. D.X.Z., Defendant.

William M. Erlbaum

The defendant was represented at the hearing by Kenneth Deans, Esq. The People were represented by Queens County Assistant District Attorney Scott Kessler.

, J.

The defendant, D.X.Z., is charged under indictment number 1823/2010 with Attempted Murder in the Second, and related offenses. It is alleged that on June 2, 2010, the defendant struck his wife on the head with a hammer. On October 18, 2010, this Part of the Supreme Court, upon request of defense counsel, ordered that the defendant be examined pursuant to CPL 730 (see, minutes of Part K-4, dated October 18, 2010). The defendant was examined by Alan M. Perry, PHD and Michael Fullar, MD, two doctors affiliated with the New York City Health and Hospitals Corporation, Kings County Hospital Center. Each doctor filed a report with the Court, wherein they each found the defendant not fit to proceed to trial pursuant to Article 730 of the Criminal Procedure Law.

The defense accepted the findings of Drs. Perry and Fullar that the defendant is not fit to proceed to trial; the People did not, and the Court ordered that the instant CPL Article 730 hearing be held. ¹ A hearing was conducted before this Court on January 12, 2011, February 16, 2011, March 23, 2011, March 31, 2011, April 25, 2011, May 11, 2011, and May 25, 2011, with oral argument conducted on June 15, 2011 and July 5, 2011, so that a determination could be made as to the defendant's competency to stand trial. At the hearing, the defense called Dr. Alan Perry, Dr. Michael Fullar, and Dr. Eric Goldsmith. The People called no witnesses, but conducted full cross-examinations as to each of these doctors. The Court finds all of the doctors to be credible. The Court will now summarize the relevant testimony elicited at the hearing.

1 During the instant hearing, the People did not call any witnesses and instead relied on the presumption of competence. See, the minutes, dated January 12, 2011; see also, People v. Tortorici, 92 NY2d 757 [1999]; People v. Veda, 73 Misc 2d 857 [1973]; People v. Erick B., 4 Misc 3d 202, 207 [2004], holding that our "legal system is built upon a presumption of competence and fitness to proceed, therefore a defendant has the burden of going forward to show some evidence calling into question the presumption of fitness and the capacity to understand the proceedings against him or assist in his defense, but it is the prosecutor who has the burden of persuasion and must prove the defendant is not an incapacitated person by a preponderance of the evidence".

The first witness called on behalf of the defendant was Dr. Alan Perry. ² Dr. Perry testified that he conducts court-ordered competency evaluations, and that he is employed at Kings County Hospital as a member of the forensic psychiatry service. Dr. Perry continued that he examined the defendant on November 8, 2010 and on November 29, 2010, and that this examination was to determine the defendant's fitness to proceed to trial. ³ The doctor stated that his examination of the defendant, over the two days, lasted approximately three hours. Dr. Perry testified that it was his opinion that the defendant is not competent to proceed to trial.

2 The defense proffered Dr. Perry as an expert witness in the field of Forensic Psychology. The People stipulated that the doctor is indeed an expert, and the Court permitted him to offer opinion testimony in this field.

3 Dr. Perry indicated that Dr. Fullar and a Mandarin interpreter were also present during his examination of the defendant.

Dr. Perry testified that he determined that the defendant is not fit to proceed to trial based upon the defendant's affect, which was very excitable, that the defendant appeared emotionally unstable, that the doctor believed that the defendant was unable to establish a working relationship with an attorney, and that the defendant would be unable to reasonably choose among his legal alternatives. ⁴

4 Dr. Perry's report, dated November 8, 2010 and November 29, 2010, was admitted into evidence as defense exhibit A. Said report is contained in the court file.

Dr. Perry testified that on November 8, 2010, the defendant was very excitable. The doctor explained that the defendant would cut the doctor off before the doctor would be able to complete his question, that the defendant would be excited or agitated for reasons the doctor was unable to understand, and the defendant seemed emotionally inappropriate [sic]. Dr. Perry continued that the defendant presented the same way on November 29, 2010. The doctor elaborated that the defendant would become especially excited when he was questioned about his wife. Furthermore, Dr. Perry explained, regarding his belief that the defendant was unable to form a relationship with his attorney, that the defendant stated that his attorney was "cheating him" (see, the minutes, dated January 12, 2011, page 70, line 2). Dr. Perry explained that the defendant repeatedly insisted that his attorney, counsel who conducted this hearing, was forcing him to sign a document saying he was mentally ill, when in fact, it was Dr. Perry's understanding from a review of court minutes that the form the attorney was requesting the defendant sign was a release for the defendant's medical records. ⁵

5 Upon questioning by the Court, Dr. Perry stated that it is his belief that the defendant would be unable to work with a different lawyer as well, not only the attorney conducting the hearing, in that the doctor does not believe that the defendant would sign the release for another attorney either, and that that release would be necessary for any psychiatric defense.

Dr. Perry continued that he concluded that the defendant was not approaching the legal options available to him in a rational, reasonable way, in that the defendant stated that he would tell the Court that his wife was putting ginseng in his tea, the charges would be dropped, and he would go home. The doctor testified that for the most part, the defendant's responses about the charges he is facing were relevant, although at one point he became irrelevant in that the defendant began talking about his work as a taxi driver in China. ⁶ Dr. Perry continued that he believes that the defendant's insight and judgment are impaired. The doctor believes that the defendant is in serious legal trouble. He told the doctor that inmates at Rikers Island told him that his counsel was not a good attorney. The doctor explained that when he questioned the defendant about how many inmates he was able to speak to in Mandarin, who had the same counsel as an attorney, and who said that this counsel was not a good attorney, the defendant was unable to answer the question. Dr. Perry testified that he does not believe that the defendant is able to help counsel decide whether an insanity defense should be used at trial, because the defendant indicated to the doctor that he was not interested in that type of defense, because the defendant did not feel that he was ill. The defendant insisted, Dr. Perry stated, that he was not mentally ill, and that "his son was not wrapped in paper, his job was not wrapped in paper which were phrases he used which meant to me that he felt that if he were ill, he wouldn't be able to hold a job, he wouldn't be able raise a son, and it wasn't something he wanted to consider" (see, the minutes, dated February 16, 2011, page 5, lines 19- 23).

6 The doctor stated that he was interviewing the defendant with the aid of a translator. The doctor explained that during the defendant's first interview, a translator over the telephone was used, and during the second interview, an interpreter was actually present in the room.

Dr. Perry testified that he discussed with the defendant what defense the defendant would offer to the charges. The doctor indicated that the defendant said that his wife put ginseng in his tea, which caused him to become ill and alter his thinking, and caused him to strike his wife. The doctor continued that the defendant's attitude was, why would he strike his wife after so many years of marriage unless he was given this substance. The defendant told the doctor that he will tell the Court exactly what happened, what his wife did, that she will say what she did, and he will go free. Dr. Perry stated that when he then raised the possibility of the insanity defense with the defendant, the defendant told him that he was not mentally ill, and that his lawyer wants him to sign papers that he is ill, and he is not.

Dr. Perry testified that the defendant understands that he is charged with assault, but the doctor stated that he thinks that the defendant is making light of his defense, that he is underestimating the way he has to handle it to extricate himself from these charges. The doctor continued that the defendant perceives and recalls events, but that sometimes his affective state gets in the way of his reporting them. Dr. Perry elaborated that during his interview with the defendant, the defendant would get excited for unexplained reasons, he would cut the doctor off, speak over him, and go off on tangents. The doctor indicated that language questions and cultural boundaries may have something to do with it. Dr. Perry testified, when asked if the defendant can form a working relationship with his counsel, that he has difficulty with counsel who was conducting the hearing, and that any other attorney who would consider a psychiatric defense will encounter the same problems. Dr. Perry continued that he does not think that the defendant understands the insanity defense as well as the doctor would like, that he does not understand all of the options, all that it entails, or what is going to happen. The doctor stated that he does not think that the defendant fully understands what will happen if a psychiatric defense is pursued.

Upon cross-examination by the Assistant District Attorney, Dr. Perry testified that the defendant told him he would tell his story in court, and not a playground. Dr. Perry continued that the defendant is oriented to time and place, that during his interview the defendant knew he was in the court building in Queens County, and understood the purpose of the examination, and the rules of confidentiality, and that those rules do not apply in this type of examination.

Dr. Perry testified that during his interview with the defendant, the defendant was trying to convince the doctor that the defendant did not have any mental problems. Dr. Perry stated that the defendant informed him that the defendant had never been admitted to psychiatric hospital, has never been treated by a psychiatrist, has a job, a son, some substance to his life, and is a normal, functioning person. The doctor continued that he does not agree with Dr. Fullar's position, reflected in Dr. Fullar's report, dated November 8, 2010, ⁷ wherein Dr. Fullar states that the defendant is not able to perceive, recall, or relate. Dr. Perry indicated that the defendant answered a lot of the doctor's questions, recalling things about his life. The defendant informed the doctor that he had been in custody since June, ⁸ was able to tell the doctor the date he was born, where he was born, how many supermarkets he had worked in, and the date and month he came to the United States. Dr. Perry further indicated that he did not find that the defendant had any problems recalling his previous history, recalling his educational background, or his family background.

7 This report is marked as defense exhibit C in evidence.

8 The Court presumes that the doctor is referring to June, 2010, the year of the alleged offense.

Dr. Perry testified that the defendant became excited at certain points during the examination, including but not only, during discussions about his wife. Dr. Perry continued that when he pressed the defendant about the defendant's wife having affairs, the defendant became more excited. The doctor suspected that the defendant's beliefs regarding the defendant's wife having affairs was delusional. Dr. Perry became more convinced of this after meeting with and talking to the defendant's family. The doctor stated that he had no personal knowledge of whether or not the defendant's wife ever had any affair, or numerous affairs.

Dr. Perry continued that another factor that made him believe that the defendant was delusional was the defendant's "defense of ginseng" (see, the minutes, dated February 16, 2011, page 38, line 24). The doctor stated that he believes that the defendant's ginseng defense, his claim that his wife put something in his tea, was delusional. Upon questioning by the Court, Dr. Perry elaborated that while he had no personal knowledge about whether the defendant's wife was trying to harm the defendant, the doctor believed that if the defendant's wife did in fact put something in his tea, the doctor questioned whether she had the intent to harm the defendant, or alter his mental status, by doing so.

Dr. Perry stated that the defendant indicated to him that he was not on any medication, and that he did not use drugs or alcohol. The doctor testified that the defendant indicated that he understood the charges against him, that he understood that it was wrong and a violation of the law to beat his wife, and that it would be a crime to injure his wife with a hammer.

Dr. Perry continued that the defendant told him that his attorney wants him to sign documents, and that he did not want to sign any documents which would show that he is mentally ill. Dr. Perry stated that the defendant believes the papers his attorney wants him to sign are an admission that he is crazy. The doctor stated that he does not believe that that is what the papers reflect, because although he never saw the papers, he read about them in court minutes. Dr. Perry said that the defendant told him that he was not crazy, and he was not going to indicate in any way that he was. Dr. Perry continued that the defendant had no problems understanding the role of the defense attorney, but the doctor felt that although the defendant hears the words of his attorney, he does not think the defendant processes those words. The doctor conceded that he can not be one hundred percent sure about this.

Dr. Perry testified that he does not have a problem with the fact that the defendant does not want to use a psychiatric defense. However, Dr. Perry indicated, he believes that outside of the context of the insanity defense the defendant's defense of his wife giving him a substance that makes him lack intent will not work, and that he will be convicted. ⁹ The doctor stated that although the defendant provided to him many details about his defense, such as the method of ingestion, the time period, the effect it had on him, his history, the doctor was not sure that the defendant really understands what he needs to do to take the defense [sic]. ¹⁰

9 Dr. Perry appears to believe that the only defense that might work is a psychiatric defense.

10 Although it is not reflected in the minutes, the Court presumes the doctor is referring to the defendant's refusal to sign the medical release form.

Dr. Perry testified that the heart of his report should reflect that the defendant can not understand all of his options in a complete and reasonable way, and that his affective state and his likely delusions prevent him from doing so. When the doctor was asked if he could name three things that the defendant said to him that show that the defendant is delusional, Dr. Perry testified that he only has two pieces of information that reflect the defendant's delusions, namely that the defendant's wife was giving him ginseng because she wanted to poison him, and that it was the ginseng that caused him to act irrationally and strike his wife, and that the defendant's wife, over the years, has had numerous affairs, and that she is not a good woman because of these affairs. The doctor stated that he believes these two beliefs are quite likely delusional. ¹¹

11 The Court notes, but naturally does not credit, Dr. Perry's sarcasm during his testimony when asked by the Court if he believes that it is a sign of unfitness if somebody acts foolishly and rejects his lawyers advice, in that the doctor replied that he will change his report and find the defendant fit to proceed because the defendant is only foolish, and not mentally ill (see, the minutes, dated February 16, 2011, page 56, lines 16- 23).

Dr. Perry testified that the defendant's statements regarding ginseng are delusional statements because the doctor does not believe that ginseng could effect someone's mental state and cause him to act as the defendant did. The doctor stated that he did not review any journals of psychiatry that may talk about mania and psychosis associated with ginseng, and did not review literature on ginseng and human behavior. The doctor continued that if the defendant called at trial a doctor who testified that he reviewed literature and there is an effect of ginseng on certain people that it causes violent acts, if that were to happen, he would not believe that the defendant's perceptions in this area are as delusional as he first thought.

Dr. Perry testified that his report reflects that his diagnosis of the defendant is a mood disorder, with the predominate feature of the disorder being disturbances in the defendant's mood, and that a delusional disorder should be considered. As to the mood disorder, Dr. Perry testified that he would classify it as moderate. ¹² Dr. Perry continued that the defendant's mood disorder is based upon the defendant's agitation, and that when discussing agitation, "you are talking about lability ¹³ of mood, how his mood shifts from neutral to anger when there doesn't seem to be something that I can connect it with" (see, the minutes, dated February 16, 2011, page 77, lines 19- 21). The doctor indicated that the agitation and excitement demonstrated by the defendant, were apparent during some discussions, not all, concerning the defendant's wife and her affairs, and concerning other things also. Dr. Perry stated that the defendant got excited when he refused to sign the papers, but not when he was talking about his history or his educational background.

12 Dr. Perry testified that he did not consider whether the defendant's mood disorder was mild, moderate, or severe before being asked about it at this hearing.

13 Dr. Perry explained that "lability is a shifting of moods quickly, meaning you can go from neutral to anger and then back . . . with little residue" (see, the minutes, dated February 16, 2011, page 78, lines 10- 12).

When asked by the People if the reason that the doctor diagnosed the defendant with a mood disorder, instead of with a depressive disorder or a bipolar order, Dr. Perry replied that it was "difficult. His mood was the overriding problem here. The problems I saw were propelled by mood. The specifics were not clear to me. I would need a lot more time especially given the fact that we were using an interpreter, and it was problematic" (see, the minutes, dated February 16, 2011, page 79, lines 7- 11). Dr. Perry said he did not think the defendant was getting agitated with the interpreter.

Dr. Perry testified that during his second interview with the defendant, the defendant was clearer about the instant offense, but was still agitated. The defendant got excited during questioning concerning seeing a doctor, as apparently the defendant was not feeling well, about the charges against him, and about a motive for hurting his wife. ¹⁴ Dr. Perry indicated that at the second interview, the defendant was more in tune to what he was feeling at the time of the instant offense, that he had better insight into his own feelings about what was going on inside of him when the instant offense took place. Dr. Perry continued that the defendant talked more about the ginseng, that he was not in his right mind, and that his wife had done this to him.

14 It is not clear from the minutes, but apparently the defendant also got excited when discussing signing the documents (see, the minutes, dated February 16, 2011, page 80, line 25- page 81, line 12).

Dr. Perry testified that his report indicates that a diagnosis of bipolar disorder with psychotic features should be considered for the defendant, based upon the alleged affairs and the ginseng, but that there was nothing else that the doctor felt would contribute to a bipolar with psychotic features diagnosis. The doctor stated that the diagnosis should be considered, that he would have liked to explore it more. Dr. Perry stated that it is his belief, based upon discussions with the defendant's wife and son, that the defendant was probably suffering from this mood disorder for months. ¹⁵

15 Dr. Perry also indicated that he thought there might be some signs that the defendant had suffered from, in the past, a major depressive episode, in that at one point the defendant did not go to work for two days and was sick, but the doctor conceded that this was just a presumption on his part, with little if any evidence to support it (see, the minutes, dated February 16, 2011, pages 87- 89).

Dr. Perry testified that when he was considering the mood disorder diagnosis for the defendant, he did not contact any personal physician of the defendant, and never asked him if he had a personal physician. Furthermore, the defendant indicated to the doctor that he had not ever sought mental health counseling. Dr. Perry continued that a mood disorder diagnosis is made when "you are really not clear about a depression or whether you are not clear about a bipolar disorder. Very often it is used also as a, kind of, broad category" (see, the minutes, dated March 23, 2011, page 8, lines 20- 23). Dr. Perry indicated that mood is the experience of emotion, and the way the emotion is expressed, and mood disorder is characterized by a disturbance in this mood, or when it is inappropriately displayed, and the way to solve a mood disorder is to improve the patient's mood. Dr. Perry continued that ways to improve the mood may include therapy or medication.

Dr. Perry testified that if someone were to be diagnosed with bipolar disorder, his ability to function, or work, would be effected. Dr. Perry indicated that there was nothing that he noticed in his interview of the defendant which led him to believe that the defendant was having a problem which interfered with his ability to work, as the defendant reported to the doctor that he was working steadily, for two years, in a supermarket. Regarding an ability to relate to others, however, Dr. Perry testified that the defendant indicated to him that the defendant's family seemed to feel that he had problems relating to them. Dr. Perry continued that a characteristic of bipolar disorder is that people with that illness often start fights or arguments with others. The doctor stated that he did not recall whether the defendant indicated to the doctor that he was having problems fighting with other people.

Dr. Perry testified that there was a certain rigidity in the defendant's thinking, including regarding the issue of the defendant signing papers to release his records. The doctor stated that he explained to the defendant that by signing the form, he was not saying that he was mentally ill, but the defendant was rigid in his thinking that that was what the form meant. Dr. Perry said that he never saw the form in question, that he only read about it in court minutes. The doctor indicated that the decision by the defendant not to sign the paperwork was a substantial reason for finding the defendant not fit to proceed, and the doctor explained that it was not so much that the defendant would not sign the paper, but that he felt it was unreasonable that the defendant repeatedly said that the papers indicate that he is mentally ill. Furthermore, Dr. Perry testified that the defendant indicated to him that he assaulted his wife, he was not in his right mind, and he wants to explain that to the court, and when the doctor indicated to the defendant that that would be a psychiatric defense, and that perhaps the defendant's case would be moved to Mental Health Court, the defendant said that he was not interested in that because he is not mentally ill.

When asked if he agreed with the statement, "The defendant seems genuinely unable to appreciate that he could be facing either a prison sentence or confinement in a psychiatric hospital as a result of his charges", from Dr. Fullar's report dated November 29, 2010, at page 3, Dr. Perry stated that he agrees with that statement, that the defendant knows what he is facing, but the defendant does not appreciate it. Dr. Perry continued that the defendant did not specifically tell him that the defendant does not want to put on a psychiatric defense or be confined in a psychiatric hospital, but the doctor stated that it is clear that the defendant does not think that he is mentally ill, and the doctor does not think that the defendant would go along with such a defense.

Dr. Perry testified that the defendant's mood disorder that makes the defendant not fit to proceed is based in part on the defendant's refusal to put forward an insanity defense. The doctor continued, "the reason I say that is because it is not just the insanity defense. It is that you ve got to understand all of your options, and that's just one of them. I don't think he really understands all of his options. I don't think he can appreciate the fact that he could lose this and go to jail for a long time, not as an insanity defense even going to trial [sic]" (see, the minutes, dated March 23, 2011, page 35, lines 6 -12). The doctor indicated that the defendant thinks he is winning, that he will tell his side of the story, his wife will tell her side of the story, that she will tell the truth that she was putting ginseng in his tea, and he will go free. The doctor indicated that he believes that the defendant will lose with that defense.

Upon re-direct examination, ¹⁶ Dr. Perry testified that one of the factors in determining whether a defendant is competent to stand trial is whether he can establish a working relationship with his attorney. The doctor continued that the defendant's failure to sign the medical release form, and the refusal to sign it because he believed that it would be an admission of insanity, is an indication that the defendant has a problem in his ability to form a working relationship with his attorney.

16 The re-direct and re-cross examination of Dr. Perry was conducted out of order, with testimony from Dr. Fullar having been taken beforehand, due to a scheduling problem.

Dr. Perry testified that the fact that a person is able to give you his date of birth, or is able to tell where he is, alone, are not indications of competency. Dr. Perry continued that in order to reach a diagnosis for a defendant, it is not absolutely necessary to speak to the individual's physician or psychologist. Furthermore, the doctor testified that it is sound methodology to reach a diagnosis regarding competency based upon an interview of the defendant. ¹⁷

17 Dr. Perry testified that he filed an addendum, dated February 16, 2011, to his report dated November 8, 2010 and November 29, 2010. Said addendum is in the court file along with Dr. Perry's original report.

Dr. Perry testified that he interviewed the defendant's wife and she denied having affairs, denied trying to poison the defendant, and said she had given the defendant ginseng once or twice when he was feeling tired. The doctor indicated that he had no personal knowledge as to the defendant's wife's fidelity, or what she gave to him, and is unaware of any criminal proceedings pending against the defendant's wife. Dr. Perry stated that the defendant's wife indicated to him that the defendant would talk to her about people at work criticizing him, which she thought was unusual and paranoid. The doctor continued that the defendant's wife felt that the defendant was suspicious of her, that he accused her of keeping his green card from him, that the defendant had periods of sleeplessness, that he seemed to pick fights with her, get unreasonably angry with her, and in the months immediately preceding the instant crime, that the defendant was tired and fatigued. Dr. Perry added that the fact that someone does not believe that they are mentally ill, in and of itself, is not an indication that they do not suffer from mental illness.

Upon re-cross examination, Dr. Perry testified that a person can be fit on one occasion and not on another. Dr. Perry indicated that at the time he examined the defendant, it was his function to let the Court know if the defendant was fit to proceed at the time of his examination, not whether or not at the time of the crime the defendant was fit or suffered from mental illness.

Dr. Perry testified that a delusion is a fixed false idea. He continued that just because someone suffers from a delusion does not necessarily mean that they are not fit to proceed. Furthermore, Dr Perry indicated, a person may be suffering from psychotic illness and still not be incapacitated.

Dr. Perry testified that when he spoke to the defendant's wife he asked her whether she had an extra-marital affair because he was interested in determining whether the defendant was delusional when he told the doctor that his wife had had affairs. The doctor indicated that if the defendant's wife had admitted that she had had an affair, that would have eliminated the idea that he was suffering from a delusion. The fact that she denied it, and the doctor felt she was reporting this to him honestly, kept the thought that the defendant was delusional in the doctor's mind.

Dr. Perry testified that the defendant is not currently taking any medication and that when he interviewed the defendant, the defendant was housed in a psychiatric unit at Rikers Island. The doctor testified that there was nothing in his observations of the defendant in court during the instant hearing which would lead him to believe that the defendant was acting out in a way which would make him unfit, or which would indicate that he could not handle the stress of the instant proceeding, or which would indicate that he could not interact with the interpreter in a collaborative way. Dr. Perry indicated that the defendant's behavior in court has been situationally appropriate. ¹⁸

18 The Court notes that during Dr. Fullar's testimony, the defendant made a number of comments to the Court. While the Court would not characterize them as outbursts, they were statements spoken out loud during the testimony of a witness. See, footnote number 23.

The next witness called by the defense was Dr. Michael Fullar. Dr. Fullar testified that he is employed at Kings County Hospital on the forensic psychiatry service, as an attending physician and psychiatrist. Dr. Fullar testified that his job is primarily to perform court-ordered psychiatric examinations. ¹⁹

19 Dr. Fullar was deemed an expert witness in the field of Forensic Psychiatry, and the Court permitted him to offer opinion testimony in this field.

Dr. Fullar testified that he interviewed the defendant, together with Dr. Perry, on November 8, 2010, and November 29, 2010. Dr. Fullar stated that it was his opinion, within a reasonable degree of medical certainty, that the defendant is not fit to stand trial. ²⁰

20 Dr. Fullar's report, dated November 8, 2010, was admitted into evidence as defense exhibit C. The report is located in the court file. The doctor indicated that the report should be dated November 29, 2010 as well as November 8, 2010, in that those were the two dates he examined the defendant. See, the minutes, dated March 23, 2011, at pages 54- 55.

Dr. Fullar testified that during his examination of the defendant, the defendant showed very excitable behavior. He was flailing his arms and smacking his chest and his leg with his fist. Dr. Fullar continued that the defendant seemed paranoid ²¹ about things that had happened between him and his wife prior to his arrest, and the defendant had a tendency to talk over both of the doctors and the interpreter as they were trying to explain things to him.

21 Dr. Fullar indicated that he does not mean paranoid in the sense of delusional, but instead, in the sense of being fearful of someone who had hurt you in the past. See, the minutes, dated March 23, 2011, at pages 61.

Dr. Fullar continued that the defendant did show an understanding of his charges, an understanding of the seriousness of the charges, an understanding of the roles of court personnel such as the DA, judge, and defense counsel. The doctor stated that the problem was that the defendant, who, the doctor at that time concluded (probably erroneously), wanted to use a defense that incorporated his mental state, did not seem to understand the ramifications of using that defense, or what would happen if he were successful or unsuccessful. The defendant also expressed suspicion about his counsel, that his attorney was trying to cheat him, and the doctor was skeptical about things the defendant was saying about his wife, such as his wife was trying to poison him. Dr. Fullar stated that he did not feel that the defendant understood the legal system, that he did not understand the risks of using his defense, and that he was unresponsive to the doctors' attempts to educate him on the risks.

Dr. Fullar testified that the defendant told him that his wife had tried to poison him with ginseng, and possibly something else, that the defendant had not been sleeping, and that his wife gave him something to drink. The defendant indicated to the doctor that he did not report the attempted poisoning to the police. Dr. Fullar testified that he spoke to the defendant's wife and son, and the conversation did not cause him to change his opinion as to the defendant's fitness.

Dr. Fullar testified that he believes that the defendant is unable to form a working relationship with his attorney, in that the defendant indicated that he does not trust his attorney, that he thought his attorney was trying to cheat him, and that since the defendant did not appear to be able to listen to information that the doctors were trying to give him, it seemed unlikely that he would listen to his attorney. When the Court inquired of the doctor if he felt that the defendant would be unable to work with another attorney, the doctor replied that given that the defendant was not "able to describe in a coherent or logical way why he is not working well with [his current attorney], it is not likely he would be able to form a working relationship with another lawyer as well" (see, the minutes, dated March 23, 2011, at page 69, lines 20- 25). Upon further inquiry from the Court, as to what the defendant told him that the doctor found to be an inadequate explanation, Dr. Fullar testified that the defendant told him that a police officer at Rikers Island had been saying negative things to him about counsel.

Dr. Fullar testified that upon discussion with the defendant's wife and son, he learned that the defendant's wife had been giving the defendant ginseng, that the defendant had not been acting like himself for years, that he had become paranoid at home, that he thought his wife was trying to poison him and his son, and at work, the defendant thought there were conspiracies against him from people at his job. ²² The doctor continued that he was informed that the defendant had a few episodes involving disorganized behavior, such as shutting down the supermarket many hours before closing time, and then having no memory of doing so. The defendant's wife informed Dr. Fullar that the defendant goes through periods of confusion, and one time had gotten lost trying to find his new apartment, and wound up riding the bus back and forth all day. Dr. Fullar stated that the defendant's family had been worried about him and had tried to get him psychiatric help over the last year, but the family has had trouble finding a psychiatrist who speaks the defendant's language, and also the defendant has denied that there is anything wrong with him. ²³

22 Dr. Fullar indicated that at this point he is using the term "paranoid" in the delusional sense, that the defendant had lost touch with reality. The doctor elaborated that he was using the term in describing mental illness, as distinguished from mental competency (see, the minutes, dated March 23, 2011, at pages 76- 77).

23 The Court notes that during this portion of Dr. Fullar's testimony, the defendant made numerous comments, and after each one counsel spoke privately with the defendant. See, the minutes, dated March 23, 2011, at pages 72- 76.

Dr. Fullar testified that he diagnosed the defendant with a "mood disorder, not otherwise specified, bipolar disorder" (see, the minutes, dated March 31, 2011, page 62, line 25- page 63, line 1). He continued that the reason he used a broad type of diagnostic category is because before he could diagnose bipolar disorder he would need to know that the defendant was not suffering from a medical condition, such as a thyroid condition or a brain tumor, and he would have to rule out that the defendant's psychiatric symptoms were taking place because of substance abuse or medication.

Dr. Fullar testified that during his interview of the defendant, the defendant was polite, however, it was difficult to conduct the interview with him. The defendant was frequently interrupting the interpreter, spoke very loudly, made his points in a physical way where he would wave his arms, pound his chest, slap his leg, and he was excitable. Furthermore, his thinking was rigid, in that it was difficult to get him off of one topic and on to another, or to get him to view an alternative point of view than the one that he had. Dr. Fullar continued that the defendant was adamant that he would be released from incarceration as soon as he told his story in court. The doctor elaborated by stating that the defendant was unresponsive to any attempt to tell him that maybe it would not go his way. Dr. Fullar stated, "typically defendants would be able to say, well, I know that there is a chance that I might lose so I might have to go to a psychiatric hospital or I might have to go to prison if my strategy doesn't work out. With [the defendant] he couldn't even entertain the possibility that it wouldn't work out in the same way that he thought it would" (see, the minutes, dated March 31, 2011, page 65, lines 5- 12).

Dr. Fullar testified that he believes the defendant does appreciate the seriousness of the charges pending against him. The doctor stated that in his report he has "a quote from [the defendant] in which he said, well, yes, if somebody did commit the crime that I am accused of - this isn't a direct quote. He is saying if somebody quote committed this crime they should be put in prison. It is my opinion that he does appreciate how serious the crime itself is" (see, the minutes, dated March 31, 2011, page 65, line 21- page 66, line 1). ²⁴ Dr. Fullar testified that the defendant was able to focus on some questions during the interview, but as they talked more, the defendant seemed less and less able to focus on what the doctors were trying to say to him, that he would talk over the doctors, and that they were unable to interrupt him. The doctor stated that if the doctors were trying to say something that went against the defendant's line of thinking, it did not appear that he was absorbing anything they were telling him.

24 Dr. Fullar's report, at page 3, indicates the direct quote from the defendant to be, "If I beat her, I should be guilty, I should be put in prison".

Dr. Fullar testified that during the interview the defendant's thinking was generally organized, however, his thinking had the tendency to become very rigid, particularly if they were trying to give the defendant information that went against the defendant's way of seeing things, such as with respect to his defense options. The doctor indicated that he and Dr. Perry were trying to warn the defendant about the potential risks of taking his case to trial. Dr. Fullar testified the he does not think that the defendant is able to form a working relationship with an attorney, and that he can not make a rational choice between the various legal defenses that are presented to him. Dr. Fullar explained that the defendant has an overly simplistic was of looking at how his legal proceedings will go, and that he does not appreciate the risks of going forward, that he could potentially be incarcerated or institutionalized in a psychiatric setting for a long time.

Dr. Fullar testified that if the defendant's counsel were to advise the defendant of certain trial strategies, risks, or procedures, the defendant would be unable to evaluate them and make a rational choice given the alternatives, that the defendant has a problem weighing his options and trusting counsel. Because the defendant was not able to give a logical reason why he was not happy with counsel, such as the lawyer did not call him back or did not let him testify in the grand jury, leads the doctor to believe that the defendant would not be able to work with another counsel as well. Furthermore, although Dr. Fullar testified that the defendant indicated that counsel was trying to trick him, maybe cheat him, by having him the sign the papers regarding the medical release, and that he heard bad things about counsel from people at Rikers, the defendant was unable to elaborate or specify what he had heard.

Dr. Fullar testified that the defendant evidenced paranoia, suspicion, and delusion in that he expressed belief that his wife had tried to poison him, with ginseng, in the days before the offense took place. Dr. Fullar stated that he does not believe that the defendant is able to withstand the stress of a trial, that his mood disorder and excitable behavior would interfere, and that he observed the defendant appearing outspoken during the instant proceedings in a way that in his experience is unusual.Upon cross-examination, Dr. Fullar testifiedthat the same skills one needs to sit through a trial are similar to those one needs to participate in a competency exam, to remain calm and to listen. Dr. Fullar continued that an individual, to be fit, does not have to adopt an attorney's point of view to be able to assist in his defense, but should appreciate the attorney's point of view, or an alternative point of view, and appreciate the risks. If one is going to go against the advice of his attorney, he should be able to articulate why he is going against it, or that he understands what his attorney is saying might happen, or understand that the case could not go his way. If a defendant is able to do that, then it is okay if he goes against what the attorney is telling him.

When asked if the defendant told him that he did not believe that a psychiatric defense would work, Dr. Fullar testified that he does not think that the defendant was at a level where he comprehended what a psychiatric defense is. The doctor said that frequently people who are psychotic say that they are not psychotic, and that the defendant and his family told him that the defendant has no history of psychiatric treatment, although the family wanted him to get psychiatric treatment. The defendant denied a history of suicide or severe depression. Dr. Fullar testified that the defendant had a psychotic process going on [sic] in that he was suspicious of his wife, lawyer, and colleagues at work. Dr. Fullar testified that the defendant's wife told him that she thinks the defendant needs to be in a hospital, and she had been trying to get him into one prior to his arrest.

Dr. Fullar testified that in his report, he wrote that the defendant is not able to accurately perceive, recall, and relate.

The doctor stated that when he interviewed the defendant, the defendant was groomed and appropriately dressed. Dr. Fullar testified that the defendant understands the roles of his defense attorney, the DA and the judge; that he is oriented to place, time, and location; that he had minimum (meaning an acceptable threshold) contact with reality; that he was able to give the doctor details about his jobs, his family background, and his past, such as when he came to the United States and from what city in China; and that he appeared to understand the purpose of the interview and that the interview was not confidential.

When asked if the defendant told him that he would go to trial with the defense that his wife drugged him with ginseng, Dr. Fullar indicated that he would not describe that conversation as the defendant going with a defense. The doctor explained that he was not sure that the defendant understood it as defense, whether it reflected his problems understanding the legal system of this country, or his rigid thinking, but the defendant said that he would go to court and tell his story and it would be over, not that he wanted a trial or to fight the charges or use a psychiatric defense. The defendant seemed to have no conception of there being a trial or a jury or a process.

Dr. Fullar testified that in his report he wrote that the defendant seems unable to appreciate that he could be facing a prison sentence or confinement in a psychiatric hospital. The doctor stated that he is not an attorney and is not an expert on what type of defense the defendant should use, but on a basic level, he was looking at what sentences the defendant could face. The doctor stated that usually defendants are able to acknowledge that things could not go their way, that they could lose at trial or be sentenced after a plea. When asked if the defendant told him that if he were convicted he would go to jail, the doctor stated that the defendant told him that if someone is convicted of trying to assault their wife, they should go to jail. The doctor acknowledged that the defendant said, "If I beat her, I should be guilty and put in prison", but, the doctor stated, "if" is the key word (see, the minutes, dated April 25, 2011, page 56, line 25- page 57, line 1).

The next witness to testify for the defense was Dr. Eric Goldsmith. ²⁵ Dr. Goldsmith testified that, at the request of counsel, he examined the defendant as to the issue of the defendant's competency. Dr. Goldsmith testified that he conducted interviews of the defendant in June of 2010 and January of 2011. The doctor indicated that his interviews of the defendant, together, lasted approximately five and a half hours. ²⁶ Dr. Goldsmith also spoke to members of the defendant's family, and reviewed the CPL 730 reports of Drs. Perry and Fullar, as well as the minutes of the instant hearing. Dr. Goldsmith testified that it is his opinion that the defendant has a mental illness, and because of that mental illness, he lacks capacity and is incompetent to proceed to trial.

25 Dr. Goldsmith was deemed an expert witness in the field of Forensic Psychiatry, and the Court permitted him to offer opinion testimony in this field. Dr. Goldsmith is a prior clinical director of Kirby Forensic Psychiatric Center, a forensic hospital, where, he explained, individuals are sent for restoration to competency, and where they are sent if found to be dangerously mentally ill following a finding of insanity in a criminal case.

26 Dr. Goldsmith submitted to the Court two written reports. One report is dated January 18, 2011, and was admitted into evidence as defense exhibit D. The second report is dated August 24, 2010, and was admitted into evidence as defense exhibit E. As to exhibit E, the report was admitted into evidence with the limitation that "any expression of opinion in words or substance in the report as to whether or not the defendant has a [psychiatric] defense" should be excluded (see, the minutes, dated May 11, 2011, pages 34- 44). The minutes reflect that at the time Dr. Goldsmith wrote this report, he was focusing on whether the defendant had a mental illness and whether that mental illness constituted a psychiatric defense. Furthermore, the doctor indicated, upon questioning by the Court, that the idea that this case would go to trial did not strike him as strange at that time. Dr. Goldsmith indicated that based upon his understanding of counsel's mandate to him, he was ready to reach the issue for a defendant who was going to trial.

The doctor continued that it is his opinion, to a reasonable degree of medical certainty, that the defendant suffers from a psychotic disorder, not otherwise specified. Dr. Goldsmith testified that the defendant has manifested evidence of a delusional system of beliefs and behaviors, such that he is out of touch with reality. The doctor stated that the defendant believes things and behaves in ways regarding those beliefs that are not factually based, and that that has been the case for quite a while. Upon inquiry from the Court, the doctor indicated that the defendant is not processing information incorrectly, but that he is starting off with false ideas. The doctor admits that if the defendant did not have his false ideas, the doctor's analysis fails, in that the doctor's opinion depends upon an evaluation of where the truth lies, in terms of the view of reality.

Dr. Goldsmith testified that the defendant is incompetent to stand trial based upon his false ideas. The doctor stated that the defendant developed a delusional belief that his wife was tampering with his body, that when he engaged in sexual relations with his wife, he was experiencing pain in his penis, which he believed indicated that his wife was transmitting disease to him, to harm him.Dr. Goldsmith continued that what leads him to believe that the defendant's ideas are false is the fact that the defendant's beliefs are totally bizarre and unreal. The doctor indicated that the defendant's false ideas were the linchpin to his being not fit to proceed. Were it not for these delusions, the doctor stated that he would not have this opinion.

Dr. Goldsmith testified that the defendant does not appreciate the nature of the charges against him. The doctor explained that the defendant is preoccupied with this bizarre delusional belief and that because of it he cannot appreciate that he is being charged with a crime. The defendant believes that a crime was committed against him. When the Court asked the doctor how he could say that the defendant does not know that he is charged with hitting his wife with a hammer, that he could get jail time, in that the doctor's report reflects this, the doctor explained that the defendant knows he has been charged with this crime, but he does not appreciate that this is a valid charge against him. The doctor continued that, in the defendant's mind, it is a prosecution that is not based in any reality.

Dr. Goldsmith testified that the defendant is suffering from paranoia, in that he sees his life as being put in danger, that his people are against him, and that he reads into situations in his life in an idiosyncratic way. The doctor continued that the defendant has some understanding of the judicial process. Dr. Goldsmith said that the defendant told him that, in order to be released, he would explain to the judge all of the harms that were upon him, and that he had to defend himself, and that someone had to stop the forces that were trying to destroy him. The doctor indicated that the defendant was unable to engage in conversations about defending himself because his mind is consumed with false beliefs, that he can not appreciate the need to participate in some legal process here. The doctor testified that the defendant knows he hit his wife over the head, he feels terribly sorry for it, but he feels he was compelled to do it because his life was in danger. The defendant feels he committed an act, but he does not believe he committed a crime.

Dr. Goldsmith testified that the defendant has had, over the course of his life, difficulty getting along with other people and that he seems suspicious of people's motives against him. The doctor stated that the defendant also had paranoid thoughts about his co-workers, and his boss. The doctor indicated that he believed that the defendant's family had a good hold on reality and that the defendant had a poor hold on reality. Dr. Goldsmith also testified that in his opinion the defendant's mental disease is one of long-standing duration. The doctor stated that the defendant's family repeatedly asked the defendant to see mental health practitioners, but the defendant was resistant.

Dr. Goldsmith testified that he diagnosed the defendant with a psychotic disorder, with paranoid delusional thinking. The doctor stated that this diagnosis is different than that of Drs. Perry and Fullar, in that they diagnosed the defendant with a mood disorder. Dr. Goldsmith explained that when Drs. Perry and Fullar examined the defendant, the defendant was very agitated and emotional, and they saw symptoms of a mood disorder, but they also identified his paranoid delusional thinking. And Dr. Goldsmith stated that he agreed with the other doctors, that the defendant has mood symptoms clearly present. Dr. Goldsmith said that even though there was not enough information available to the doctors to make definitive diagnoses, they all agree that the defendant suffers from a true psychiatric condition, and the diagnoses depend on what is the overriding symptoms in front of the examiner.

Upon cross-examination, Dr. Goldsmith stated that the defendant's delusion involved the defendant's belief that his wife was contaminating him in that when he had sexual relations with her his penis hurt. When asked by the People if the defendant told the doctor that he believed that his wife contracted some disease from a person selling music CDs, and it was transferred to him, the doctor answered affirmatively. The doctor stated that the defendant did not say specifically whether the disease was a sexually transmitted one, and that the defendant appeared unsure of the source of his contamination. The doctor continued that although it occurred to him that the defendant might be complaining of contracting a sexually transmitted disease from his wife if she were having an affair, the doctor did not think that that was so, in that the defendant told him that he had pain in his penis only during sex, and not at other times. The doctor stated that that was significant, because it was a signal to the defendant that harm would come to him.

Dr. Goldsmith testified that during his interview with the defendant, the defendant mentioned to him that his wife had given him ginseng tea, although the doctor stated this was not reflected in his report. ²⁷ The doctor indicated that he did not recall the defendant telling him that about being poisoned by his wife with ginseng. The doctor continued that being able to assist in one's own defense does not mean that one must obey his attorney. Furthermore, a defendant is allowed to present a defense that may disagree with his attorney's position, and that a defendant is allowed to make bad decisions, and a bad decision could also include coming up with a defense that may not work in front of a jury. Dr. Goldsmith stated that the decision must be arrived at with a rational and factual understanding.

27 The Court notes that page 7 of Dr. Goldsmith's report, dated August 24, 2010, does mention a ginseng drink.

Dr. Goldsmith testified that he noticed in the reports from Drs. Perry and Fullar, that the defendant did not mention anything to them about pain in his penis, and does note that those reports, as well as the testimony of those doctors, reflect that the defendant was planning on telling the Court that his wife gave him ginseng which effected his mind. The doctor indicated that the defendant's complaints regarding pain in his penis first occurred during his interview with the defendant in August, 2010. When asked by the People if it occurred to him that perhaps this delusion was now gone, in that the defendant apparently never mentioned it to Drs. Perry and Fullar, Dr. Goldsmith testified that he was not surprised that it never came up. Dr. Goldsmith explained that he spent quite a bit of time with the defendant, and going through his history, and he was interviewing him, in August, to determine whether the defendant had a state of mind that would support an insanity defense, while Drs. Perry and Fullar were assessing the defendant's current state of mind to determine fitness to proceed to trial.

Dr. Goldsmith testified that after his initial interview with the defendant he submitted to defense counsel his first report dated August 24, 2010 (defense exhibit E), and at that time he felt that the defendant may have had a claim regarding a defense of not responsible, but he did not feel there was an issue as to the defendant's competency. When asked by the Court if the doctor assumed that the defendant, at that time in August, 2010, might be competent, the doctor replied in the affirmative, and stated that there was no reason for him to believe that the defendant was not competent at that time. Dr. Goldsmith indicated that if the defendant was not competent at that time, the doctor would have told that to defense counsel and would have put that in his report, that he would not have wanted the defendant to go to trial not being competent.

Dr. Goldsmith testified that a point in time came when defense counsel asked the doctor to do a second report on the defendant, not focusing on the issue of mental disease or defect, but on the issue of the defendant's competency. The doctor stated that a person could be competent in August, but not competent months later. The doctor testified that his second report is dated January 18, 2011, and that report reflects the doctor's conclusion that the defendant suffers from a psychotic disorder that is preventing him from being competent to proceed. The doctor stated that the defendant suffered from this same disorder in August, 2010, but not at the same level [sic]. The doctor continued that in August, 2010, the defendant was calmer, and the two entered into lengthy discussions, but in January, 2011, the defendant was in an agitated state, his emotional state was so different. The doctor indicated that the defendant was aware at this second interview that his competence was being called into doubt, that there was a question about whether or not the defendant might have to go to a hospital, and the defendant was agitated when the discussion focused on whether he had a mental illness. Dr. Goldsmith testified that the defendant repeatedly told him that he was not mentally ill.

Dr. Goldsmith testified that when he interviewed the defendant's wife, she indicated to the doctor that she had remembered everything before and everything after the incident wherein she was attacked, but she did not remember the attack itself. The doctor testified that it is not uncommon for people who are attacked to have retrograde amnesia, and he did not question whether she was withholding information. The doctor indicated that there was no question that the defendant was the individual who assaulted her. Dr. Goldsmith testified that the defendant's wife said to him to please help the defendant, that he needs help, that he needs to be in a hospital, or get some kind of mental health help. The doctor indicated that he got the feeling that the defendant's wife did not want him to be in prison.

Dr. Goldsmith testified that the defendant admitted to him that he hit his wife in the head with a hammer, that his report dated August 24, 2010 reflects that the defendant thought that if he did not hit her with the hammer his life would be in danger. The doctor continued that it is his belief that the defendant continues to harbor the delusional belief about his penis being contaminated. The doctor continued that with treatment, such as anti-psychotic medication, it is very possible that that delusion will go away.

Dr. Goldsmith testified that the defendant insists that his wife tried to poison him, but he can not appreciate the reasoning behind pursuing a mental illness defense. The doctor continued that the defendant told him that he is not mentally ill, that his wife poisoned him, that the poison forced him to attack his wife, and that he does not want to follow his attorney's advice of going with a defense of not responsible. Dr. Goldsmith stated that the defendant understands it but has no rational appreciation for it, in that the defendant does not understand why he would pursue a mental illness defense when he is not mentally ill. The doctor stated that after all, the defendant believes that people are poisoning him, or tampering with his body, this is what this case is about in the defendant's mind. Therefore, the defendant has no rational appreciation for a defense.

Dr. Goldsmith testified that at his last interview with the defendant, the defendant had the ability to perceive, recall and relate. The doctor continued that in August, 2010 he assumed that the defendant had the mental state sufficient to withstand the stresses of trial, and that he could have a working relationship with counsel. If he thought the defendant did not have the capacity to be tried, he would have told defense counsel. Dr. Goldsmith testified that when he interviewed the defendant a second time, it was his opinion that the defendant was not able to establish a working relationship with his attorney due to the defendant's mental illness. The doctor stated that the defendant's mental illness did not change, but the context of the evaluation changed, that when he first interviewed the defendant, the evaluation was about the defendant's state of mind at the time of the crime, but that when the issue of the defendant being mental ill became a factor in this case, the defendant's emotional state became much more severe.

Dr. Goldsmith testified that someone can have a delusional belief and still be competent to stand trial. The doctor testified that he agrees with Dr. Fullar that the defendant is fully oriented as to time and place, and has a minimum (meaning an acceptable threshold) contact with reality. Furthermore, Dr. Goldsmith indicated, the defendant understands the roles of each of the court personnel. The doctor indicated that there is nothing based on his observations of the defendant during the hearing that would cause him to believe the defendant was not fit to proceed, just on observation alone. The doctor indicated that the defendant has not acted out at all. Dr. Goldsmith also testified, regarding Dr. Fullar's comment in his report that the defendant asked Dr. Fullar questions to clarify the defendant's understanding of the legal process, and listened to the doctor as he gave him information, that that would be an indication that the defendant is interested in connecting [sic] with the charges.

Dr. Goldsmith testified that although the defendant has an explanation in his irrational mind, and he has things he wants to tell the Court, the doctor does not believe that the defendant has the capacity to evaluate the likely outcome of such an approach. Upon questioning by the Court, the doctor conceded that the defendant does want to tell the Court his story as a way of coping with the charges against him.

Upon re-direct examination, Dr. Goldsmith testified that capacity to stand trial is a fluid concept, that an individual may be competent at one point, and weeks or months later may be incompetent. Dr. Goldsmith testified that the defendant is unable to perceive, recall and relate, ²⁸ that he is unable to establish a working relationship with his, or any, attorney, and that he does not possess sufficient intelligence and judgment to listen to the advice of counsel and appreciate one course of action over another. The doctor stated that the fact that defendant is Chinese and speaks only Mandarin is not relevant to why he is incompetent to proceed to trial. The doctor stated that the defendant does not know why he is being prosecuted for this incident because he has been tampered with in his mind by forces.

28 The Court notes that Dr. Goldsmith indicated earlier in his testimony that the defendant can perceive, recall, and relate. See, the minutes dated May 11, 2011 at page 115, lines 9- 16, compared to the minutes dated May 25, 2011 at page 33, lines 5- 7.

The defense and the People both rested their cases. ²⁹

29 The Court notes that defense counsel indicated that he had a conversation with the defendant concerning the defendant testifying at the instant hearing, and the defendant purportedly expressed to counsel that he did not wish to testify (see, the minutes, dated May 25, 2011, page 41).

CONCLUSIONS OF LAW

The sole issue before the Court is whether or not the defendant is fit to proceed to trial. In People v. Mendez, 1 NY3d 15 [2003], the Court of Appeals held that the test for competence is set forth in CPL 730.10(1), which provides that an "incapacitated person" is defined as "a defendant who, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist in his own defense" (see, CPL §730.10[1]). The Court further held that "for purposes of due process, the United States Supreme Court has explained that the defendant must have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding... and...a rational as well as factual understanding of the proceedings against him'" (id. at p. 19, citing Dusky v. United States, 362 US 402 [1960]). Factors to be considered in determining competence include whether the defendant: "(1) is oriented as to time and place; (2) is able to perceive, recall and relate; (3) has an understanding of the process of the trial and the roles of judge, jury, prosecutor and defense attorney; (4) can establish a working relationship with his attorney; (5) has sufficient intelligence and judgement to listen to the advice of counsel and, based on that advice, appreciate (without necessarily adopting) the fact that one course of conduct may be more beneficial to him then another; (6) is sufficiently stable to enable him to withstand the stresses of the trial without suffering a serious or prolonged or permanent breakdown" (see, People v. Picozzi, 106 AD2d 413, 414 [2nd Dept 1984]). See also, People v. Valentino, 78 Misc 2d 678 [1974]. Finally, the Mendez Court found that the burden of proof with respect to this issue is on the prosecution to establish the defendant's competence "by a preponderance of the evidence" (id.; see also, People v. Troy, 28 AD3d 689 [2d Dept 2006], leave denied, 7 NY3d 852 [2006]).

In the opinion of the Court, the People have met their burden, in fair measure through the cross-examination of the witnesses called by the defense, of demonstrating the defendant's competence within the meaning of the Criminal Procedure Law. Initially, the Court will note the quite competent performance of defense counsel in proferring for the Court the testimony of three well- qualified expert witnesses, each with credentials beyond reproach. However, in evaluating the testimony of these witnesses, the Court is of the view that their opinions that the defendant is not fit to proceed to trial are not supported by the facts, testimony, and reports presented at this hearing. As the New York State Criminal Jury Instructions, 2nd, charge on Expert Witnesses states, in evaluating the testimony of an expert, the fact finder, in this case the Court, may consider "the facts and circumstances upon which the witness's opinion was based", "the reasons given for the witness's opinion", as well as "whether the witness's opinion is consistent with other evidence in the case" (see, Criminal Jury Instructions, 2d, charge on Expert Witnesses, found at http://www.nycourts.gov/cji). Additionally, the fact finder is not duty bound to accept the conclusions of the experts, as their testimony, like that of an ordinary witness, may be accepted or rejected, in whole or in part. ³⁰ Furthermore, simply because three expert witnesses are in accord that the defendant is not fit to proceed in no way binds the Court to accept their conclusions. For it must be noted that competency is a legal issue, not a medical issue (see, People v. Valentino, 78 Misc 2d 678 [1974]).

30 The Court finds that the People's argument that Dr. Goldsmith should not have been permitted to give an expert opinion as to the ultimate question in this case is academic in light of the Court's finding that the defendant is fit to proceed, contrary to Dr. Goldsmith's opinion. If the Court did determine this issue, it would not agree with the People's position (see, People v. Seeley, 186 Misc 2d 715 [2000]; People v. DeSarno, 121 AD2d 651 [2nd Dept 1986], appeal denied, 68 NY2d 769 [1986]. See also, Criminal Jury Instructions, 2d charge on Expert Witnesses, found at http://www.nycourts.gov/cji.

In reviewing the testimony of Drs. Perry, Goldsmith, and Fullar, it is significant to note the many factors which demonstrate competence that the doctors found the defendant to be capable of doing and understanding. Also, it must be noted that the experts agreed with each other on many of these abilities that the defendant possesses. Each expert agreed that the defendant is oriented as to time and place, and that he has an understanding of the roles of courtroom personnel. Dr. Perry and Dr. Fullar agreed that the defendant understands the charges against him, and that he understood the purpose of their CPL 730 evaluation, the rules of confidentiality, and how those rules did not apply to the doctors' examinations of him. Dr. Perry and Dr. Goldsmith agreed that the defendant is able to perceive, recall, and relate, ³¹ and Dr. Perry noted, and the other doctors would surely agree, that the defendant was able to recall many, many details about his life and his history. Dr. Perry and Dr. Goldsmith agreed that the defendant handled the stress of the hearing appropriately, which the Court finds is a sign that the defendant could handle the stress of a trial. ³² Dr. Fullar found that the defendant understands the seriousness of the instant matter, and Dr. Goldsmith agreed with him that the defendant has sufficient contact with reality. All in all, the defendant clearly possesses many of the traits which would indicate his fitness to proceed to trial. In fact, upon close scrutiny of the testimony of each of the doctors, it appears to the Court that there really are only two areas in which the experts call into question the defendant's capacity, and those would be the defendant's ability to work with his attorney and listen to and appreciate his attorney's advice, and the defendant's ability to understand his legal options and the consequences of choosing from those options. However, upon carefully evaluating the evidence elicited at this hearing concerning these two areas, the Court finds the evidence overwhelming that the defendant has the ability to undertake both of these important tasks.

31 Dr. Goldsmith initially testified that the defendant can perceive, recall, and relate, but later said he could not. Based upon the amount of detailed information the defendant relayed to Dr. Goldsmith, as well as to the other doctors, the Court finds that the defendant can indeed, perceive, recall, and relate.

32 The defendant's out-loud comments at the hearing occurred during Dr. Fullar's testimony. Dr. Fullar commented that he thought these comments were unusual (see, the minutes, dated April 25, 2011, page 17). However, despite the defendant's comments, the defendant never lost his ability to continue with the hearing.

Looking to Dr. Fullar's report, at page 3, the Court notes the doctor's finding that the defendant, "asks questions to clarify his understanding of the legal process in the United States and he listens as I give him information about trial proceedings." This statement is a clear indication to the Court that the defendant is able to work with an attorney, but not necessarily his present attorney. For if the defendant is able to ask questions of a psychiatric examiner and to consider the examiner's answers to those questions, there is no reason why the defendant can not do the same with an attorney. Furthermore, as Dr. Goldsmith indicated, this is an indication that the defendant is involved and connected with his case.

In further support of this indication are the interactions that were on display between the defendant and defense counsel at the instant hearing. At the conclusion of the hearing, the defendant, after a discussion between the two of them, indicated, according to counsel, that the defendant did not wish to testify (see, the minutes, dated May 25, 2011, page 41). Also, as reflected in footnotes 18 and 23, during the proceedings, the defendant made numerous out- loud statements in the middle of Dr. Fullar's testimony, and after each statement counsel spoke privately with the defendant, and apparently was able to address his concerns. These interactions demonstrate to the Court that the defendant and counsel are in fact able to deal with each other in a calm and respectful manner. See, People v. Gensler, 72 NY2d 239 [1988], where the Court of Appeals held that the Court may utilize its own observations of the defendant as to a finding of competence.Although the doctors who testified at this hearing all opined that the defendant was not fit to proceed because he can not appreciate the risks of a conviction in this case, the defendant made numerous statements to them indicating that, in fact, he does appreciate those risks and he is indeed competent. For example, Dr. Fullar's report reflects that the defendant told him that if he beats his wife, he should go to prison; ³³ Dr. Goldsmith's most recent report, dated January 18, 2011, reflects that the defendant told him that he could be sentenced to significant incarceration; and Dr. Perry testified that the defendant told him and understands that it is a crime to hit his wife with a hammer. Surely all of these statements by the defendant can not be ignored, as they illuminate the issue of whether or not the defendant understands the legal consequences he is facing.

33 The Court notes that this statement by the defendant is clearly in contrast with another statement in Dr. Fullar's report, at page 3, that the "defendant seems genuinely unable to appreciate that he could be facing either a prison sentence or confinement in a psychiatric hospital as a result of his charges".

In reaching their opinions, the doctors also placed significance on the defendant's refusal to sign a medical release form, and his unwavering belief that by signing it, he would be saying he is mentally ill. Drs. Perry and Fullar went as far as saying that the defendant believed defense counsel was trying to cheat him by having him sign the release. The doctors testified that the defendant had a certain rigidity in dealing with this issue, and such rigidity contributed to the defendant's incompetence. The Court, however, is not swayed by this aspect of the doctors' opinions. The defendant emphatically stated to the doctors, numerous times, that he did not wish to pursue a psychiatric defense. The Court therefore does not find it unusual that the defendant would emphatically refuse to sign this form. It is not unreasonable for the defendant to have feared that the sought- after medical records release pointed to counsel's pursuit of a psychiatric defense. After all, such a conclusion would likely be correct, in that, more often than not, when a psychiatric defense is used, medical records are sought. Since he was so firm in his position that he did not want to pursue a psychiatric defense, the Court would expect him to hold firm in his refusal to sign the medical release form. Especially since there was no testimony from the doctors that they explained to the defendant that by signing the form he was not in any way agreeing to pursue a psychiatric defense. Perhaps if they told him that, and he was still so adamant in his refusal to sign, an argument could be made as to the defendant's purported rigidity. Instead, the testimony demonstrated that all they told the defendant was that by signing the forms his medical records would be released (not that he was saying he was mentally ill), and having his medical records released clearly was not something the defendant wanted.

It was the position of the doctors that the defendant, despite knowing the charges he was facing, could not truly appreciate the consequences of this criminal case. The doctors concluded that the defendant's statement that he would simply go to court, tell his story, and be released, was an indication of his incompetence. As Dr. Fullar put it, the defendant has a problem weighing his options and evaluating choices and alternatives concerning what to do to deal with this case. They thought that the defendant's position of telling his story was overly simplistic and an irrational rejection of a psychiatric defense. The problem with this position of the doctors, however, is that the evidence adduced at this hearing fails to establish that anyone, the doctors or defense counsel for that matter, clearly informed the defendant of any choices he had in this case, other than pursuing a psychiatric defense.

The defendant was clear about his desire not to pursue a psychiatric defense, and he conveyed that to his doctors and to his counsel. ³⁴ The record is devoid, however, of any testimony indicating that the defendant was given an explanation of any other defense that might be available in this case. For the doctors, then, to say that the defendant could not choose among other legal defenses, when the record fails to show that any defense, other than a psychiatric defense, was discussed or explained to him, is a conclusory finding which smacks of unfairness and hypocrisy. ³⁵ For not only might the defendant change his plan to tell his story in court, should other defenses be explained to him, but maybe the defendant's position ³⁶ could be incorporated into another defense which the defendant would not be as opposed to as he is to a psychiatric defense. But an opinion finding a defendant unfit to proceed, by saying that he does not understand his defense options, when none are explained to him, is not a proper basis upon which to find a defendant incompetent. There are myriad defenses that could possibly be used in this case, or at least should be discussed with the defendant, before a finding should be made that he does not understand his choices. For example, had there been evidence in the record that defenses such as accident, lack of intent (not in a psychiatric sense), justification, or extreme emotional disturbance, were discussed with the defendant by either the doctors or counsel, perhaps then the opinion that the defendant did not understand his choices would be more credible. Perhaps if there were evidence of consideration of what could happen to this case if the complainant recanted, or chose not to pursue this case, it might be more arguable that the defendant did not understand what could happen to him. Likewise, if there were a particularized showing of a discussion with the defendant of the idea of a simple plea bargain. But, on this record, the conclusion of the doctors that the defendant does not appreciate his choices, when essentially only one choice was given to him, a psychiatric choice which he did not want to pursue, can not be sustained. ³⁷ Furthermore, the Court does not find it unreasonable that the defendant would object to and reject a psychiatric defense. As he explained to the examiners, he has a job, a family, a life, and "is not wrapped in paper".

34 By expressing his opinion against a psychiatric defense, the defendant's actions clearly contradicted Dr. Perry's statement that the defendant would be unable to assist counsel in deciding if an insanity defense should be used.

35 This is not unlike where a hospital in a retention case fails to give a defendant increased privileges and then the defendant is unable to demonstrate that he can safely transition into the community because he was never given the opportunity to try. See, this Court's decisions, People v. D.I.I., 23 Misc 3d 1118 [2009]; People v. D.D.G., 27 Misc 3d 1224 [2010].

36 Dr. Goldsmith did concede that the handling of the defendant's case in this manner might be a way to deal with the charges and be a defense to them.

37 This Court notes that counsel has a duty to reasonably consult with the defendant about the means by which the defendant's objectives in this case are to be met (see, Rules of Professional Conduct, Rules 1.2[a]) and 1.4([2]). This reminds the Court of an attorney's duty to fully investigate a matter (see, this Court's decisions, People v. D.S.D., 32 Misc 3d 1243 [2011] and People v. D.J.H., 32 Misc 3d 1231 [2011]).

The Court does not question the good faith of the examiners in this case, however, it is clear from the substance of their testimony, that they believe, collectively, that a psychiatric defense is in the best interest of the defendant. As Dr. Perry testified, his finding that the defendant is not fit to proceed is based in part on the defendant's refusal to follow an insanity defense. While the Court does not find it necessary to hold at this point that the doctors rendered testimony beyond their field of expertise, beyond their professional disciplines, and into an area of what is an appropriate defense at a criminal trial, the Court does find that the desire of the doctors for the defendant to proceed in a manner in which they feel is best for him, has clouded their conclusions as to the defendant's fitness. For simply because a defendant may not want to pursue a defense that is recommended, does not render him not fit to proceed (see, People v. Soto, 189 AD2d 712 [1st Dept 1993], leave denied, 81 NY2d 977 [1993]; People v. Dryer, 128 AD2d 719 [2nd Dept 1987], appeal denied, 70 NY2d 711 [1987]). ³⁸ The testimony adduced from the doctors does not support a finding of unfitness to proceed to trial, and more specifically, it does not support a finding that the defendant can not work with an attorney and does not understand the legal consequences he is facing. Instead, when the individual elements of the doctors' testimonies are carefully reviewed and evaluated, it is a clear that this defendant understands what the proceedings against him are about, that he is charged with hitting his wife with a hammer, understands the imprisonment consequence he is facing because of the proceedings, and is able to assist in his own defense.

38 This issue of a defendant pursuing a defense that is not looked upon favorably brings to mind this Courts's decision in People v. I.R., Indictment number 2457/2006, dated March 24, 2008. In that case, the defendant wanted to pursue a defense of intoxication. The doctor who evaluated him for competency, coincidently Dr. Perry, believed that the defendant was unfit to proceed because the defendant was too rigid in wanting to pursue this defense, and would not accept his attorney's advice that the intoxication defense would not work at trial. However, the doctor was unaware of the defense of intoxication, unaware of the jury charge on the defense, and unaware that the defendant's attorney had filed a notice of intent to pursue this defense. Therefore, since the doctor was unaware of the viability of the intoxication defense, the Court was unable to adopt the doctor's opinion that the defendant was unfit because he wanted to pursue it.

While the defendant's supposed beliefs that his wife was having affairs, that she was trying to poison him with ginseng, and that his body was contaminated, causing pain to his penis, in short, that his wife was trying to hurt him, may bear upon the so-called "insanity" defense, they fail to establish lack of fitness to proceed. ³⁹ As the "expert" testimony indicated, an individual could have false beliefs and still be fit to proceed. For it is settled law that a defendant may be suffering from psychiatric illness, and not be incapacitated under Article 730 (See, People v. Ciborowski, 302 AD2d 620 [3d Dept 2003], appeal denied, 100 NY2d 579 [2003]; People v. Shiffer, 256 AD2d 818 [3d Dept 1998], appeal denied, 93 NY2d 878 [1999]; People v. Harris, 109 AD2d 351 [2d Dept 1985]; People v. Surdis, 23 AD3d 841 [3d Dept 2005]; People v. Stonis, 246 AD2d 911 [3d Dept 1998], appeal denied, 92 NY2d 883 [1998]). Mental illness and competence are distinguishable concepts, and although a court might agree that a defendant suffers from a mental illness and might benefit from treatment, or that the disposition of a case might include mental health treatment, as far as the issue of fitness in this case is concerned, the supposed delusions are not a basis upon which to deny the defendant the right to steer his own ship and defend these charges as he wishes. See, this Court's recent decision, People v. D.J.H., 33 Misc 3d 1231 [2011].

39 Thus, the Court is not finding that these alleged beliefs of the defendant might not be of significance at a trial, depending upon the defense that is being employed.
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Based upon the foregoing, defense counsel's application for an order finding the defendant to be an incapacitated person pursuant to CPL Article 730 is denied.

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant, to the District Attorney, and to the defendant himself.

William M. Erlbaum, J.S.C.