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In Lewis, the First Department held that preclusion of the defense did not deprive the defendant of his constitutional right to present a defense, where his notice of intent to present a psychiatric defense was untimely, he failed to establish good cause for the late notice, and the trial court determined, based upon the extensive psychiatric information before it, that defendant had no viable psychiatric defense.
Summary of this case from People v. AllenOpinion
305
February 27, 2003.
Judgment, Supreme Court, New York County (Micki Scherer, J. at competency hearing; Joan Sudolnik, J. at suppression hearing, jury trial and sentence), rendered June 21, 1999, convicting defendant of robbery in the second degree, and sentencing him, as a second felony offender, to a term of 15 years, unanimously affirmed.
ELLEN SUE HANDMAN, for Respondent.
BETSY HUTCHINGS, for Defendant-Appellant.
Before: Tom, J.P., Andrias, Buckley, Williams, Friedman, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning credibility. Defendant's action in grabbing a bulge at his waistband coupled with his statement to the victim that "If you're not going to give me the money, then I'll have to do something about it," conveyed that he was reaching for an object that the victim could reasonably believe to be a firearm (see People v. Lopez, 73 N.Y.2d 214, 220; People v. Baskerville, 60 N.Y.2d 374, 381;People v. Taylor, 203 A.D.2d 77, lv denied 83 N.Y.2d 915). Furthermore, the victim gave credible testimony that he actually believed defendant had a firearm and that he had no choice but to submit to defendant's seizure of his property. Accordingly, the element of display of what appeared to be a firearm was established beyond a reasonable doubt.
The court properly exercised its discretion in denying defendant's application for the drastic and inappropriate remedies of a mistrial and/or dismissal, the only remedies requested (see People v. Rice, 75 N.Y.2d 929, 932; see also People v. Young, 48 N.Y.2d 995) for a discrepancy between testimony adduced at the suppression hearing and trial. Defendant did not ask for reopening of the suppression hearing, and his application for other remedies did not obligate the court to reopen the hearing sua sponte (see CPL 710.40; People v. Freeman, 253 A.D.2d 692, lv denied 92 N.Y.2d 982). In any event, the officer's trial testimony was not materially inconsistent with his hearing testimony and would not have changed the result of the suppression hearing.
Defendant was properly found to be competent to stand trial. The competency hearing court fully complied with the requirements of CPL article 730 (see People v. Gensler, 72 N.Y.2d 239, 244, cert denied 488 U.S. 932). After psychiatric examinations of defendant in accordance with the statute, a hearing was held at which both defendant and the prosecution presented expert testimony. Contrary to defendant's contention, he was not entitled to a new examination, particularly since there was no basis to conclude that his condition had changed in the four months since he had been examined (see People v. Rogers, 163 A.D.2d 337,lv denied 76 N.Y.2d 943; People v. Konits, 159 A.D.2d 590, 591, lv denied 76 N.Y.2d 738, cert denied 498 U.S. 939). In making its determination the court properly relied upon all the relevant evidence, including a court-appointed clinical social worker's report, which supplemented the mandatory psychiatric reports (see People v. Gensler, 72 N.Y.2d at 244; People v. Pena, 251 A.D.2d 26, 31-32, lv denied 92 N.Y.2d 929).
Defendant was not deprived of his constitutional right to present a defense. Since defendant's notice of intent to present a psychiatric defense was untimely, and since he did not establish good cause for late service of notice, he was not entitled to introduce such evidence (see CPL 250.10; People v. Almonor, 93 N.Y.2d 571, 581; People v. Berk, 88 N.Y.2d 257, 265-266). However, before precluding such evidence, the trial court determined, on the basis of the extensive psychiatric information before it, including the conclusions of an independent forensic psychiatrist, that defendant had no viable psychiatric defense and that no such defense was supported by any evidence (compare Ronson v. Commissioner of Correction, 604 F.2d 176, 179). The court also properly precluded defendant from offering evidence of his mental condition in the past since this evidence was not probative of his condition at the time of the crime.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.