People v Zacher

[*1] People v Zacher 2006 NY Slip Op 50787(U) Decided on January 26, 2006 Supreme Court, Monroe County Valentino, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 26, 2006
Supreme Court, Monroe County

The People of the State of New York

against

David M. Zacher, Defendant.



2005-0303



For the People:Michael C. Green

Monroe County District Attorney

Douglas Randall, A.D.A.

47 South Fitzhugh Street, Suite 832

Rochester, New York 14614

For the Defendant:John R. Parrinello, Esq.

36 West Main Street, Suite 400

Rochester, New York 14614

Joseph D. Valentino, J.

D

efendant stands accused of two counts of Murder in the First Degree (Penal Law § 125.27 [1] [a] [viii] and [b]) and one count of Assault in the First Degree (Penal Law § 120.10 [1]). Defendant moves pursuant to CPL 730.10 (1) and People v Francabandera, 33 NY2d 429, for an order (1) requiring the People to immediately disclose on the record all of their evidence in this case to the defense; (2) determining that the defendant is not fit to proceed to trial because his amnesia precludes him from receiving a fair trial under the Francabandera/Wilson fair-trial assessment criteria; or (3) in the alternative, ordering that a Francabandera/Wilson fair-trial assessment be made after trial; and (4) granting any other and further relief that the Court deems appropriate. The People oppose the motion. DISCUSSION

Defense counsel asserts that because defendant suffers from dissociative amnesia, as diagnosed by both parties' psychiatric experts, defendant cannot assist in his defense. Defense counsel further asserts that to receive a fair trial, full disclosure of the People's evidence is the first step.

The defendant's psychiatric expert, R. P. Singh, M.D., examined defendant and provided a written report opining that, among other things, at the time of the alleged offenses defendant was [*2]in a state of dissociation following a heated discussion with his wife after she struck defendant in the head. Dr. Singh indicated that defendant did not appreciate the nature and consequences of his conduct or that such conduct was wrong. Dr. Singh "look[ed] into the possibility that [defendant] may deliberately be lying rather than not being able to remember the details." Dr. Singh determined that several facts minimized the possibility that defendant is malingering or deliberately lying, including defendant's state of extreme emotional distress and confusion at the time he made the 911 call, and that defendant did not try to deny his actions or destroy any evidence. Dr. Singh made an Axis I diagnosis of "Social Phobia, Dissociative Disorder, NOS, [and] Dissociative Amnesia."

The People's psychiatric expert, J. Richard Ciccone, M.D., examined defendant and provided a written report opining that, among other things, "it is likely that [defendant] has forgotten the attack on his wife and daughters. The lack of memory of an extremely traumatic event is called Dissociative Amnesia (Psychogenic Amnesia)." Dr. Ciccone reported "it is not possible to rule out some component of malingering." Dr. Ciccone made an Axis I diagnosis of "Probable Dissociative Amnesia, Rule Out Malingering, [and] Social phobia, by history."

DECISION

A hearing is held where medical evidence is necessary to determine defendant's claim of amnesia (see, People v Johnson, 115 Misc 2d 366 [a hearing was necessary for medical evidence of the defendant's status at the time of the crimes charged]; People v Soto, 68 Misc 2d 629). In People v Rivera, 111 Misc 2d 713, after a hearing, it was determined that the defendant sustained his burden of proof by a preponderance of the evidence of the genuineness of his amnesia.

Here, Drs. Singh and Ciccone have diagnosed defendant with dissociative amnesia. Dr. Singh minimized the possibility of malingering. Dr. Ciccone reported that it is not possible to rule out some component of malingering. However, Dr. Ciccone opined that it is likely defendant has forgotten the attack.

As the People point out, other defendants have claimed to suffer from amnesia (see, e.g., State v Peabody, 611 A2d 826). Amnesia may result from an unconscious denial of a painful circumstance without which the defendant might lose his sanity (see, People v Soto, supra). The psychiatrists in People v Soto, supra, explained that a stimulus which could provoke a recollection of the tragic event, might, ironically, precipitate psychosis. Here, the People claim that defendant's amnesia is treatable, reversible and no actions have been taken by defense to alleviate defendant's amnesia. Even so, the People's own expert has given his opinion that it is likely defendant has forgotten the attack.

Because both psychiatrists similarly reported a diagnosis of defendant's amnesia and counsel affirmed that these experts' reports are true and accurate, the Court has sufficient evidence necessary for this motion to establish defendant's claim of amnesia (cf., People v Johnson, supra). The Court concludes that a hearing on the genuineness of defendant's amnesia is not necessary (cf., People v Rivera, supra). For purposes of this motion only, the Court accepts as true defendant's claim of amnesia and that he has no memory of the events alleged in the indictment.

Having cleared the hurdle of a diagnosis of amnesia, the remaining issue is whether defendant can receive a fair trial. Defense counsel clarified on the record that he is not seeking a competency hearing (CPL 730.30). Therefore, although the motion was brought pursuant to CPL 730.10, defendant's competency to stand trial is not in issue. It should also be noted that throughout the proceedings to date, the Court has observed that defendant has sufficient present ability to [*3]consult with his lawyer with a reasonable degree of rational understanding and has exhibited a rational as well as factual understanding of the proceedings against him. Also, the Court of Appeals has flatly rejected the contention that the inability to recall the events charged because of amnesia establishes incompetence to stand trial (People v Francabandera, 33 NY2d 429, supra).

The issue distills to whether defendant can receive a fair trial in spite of his dissociative amnesia (see, Wilson v United States, 391 F2d 460, 463; People v Soto, supra, at 632). "In the final analysis the question is whether under all the circumstances and with regard to the nature of the crime and the availability of evidence to the defendant, it is likely the defendant would in fact receive a fair trial" (People v Lewis, NYLJ, Nov. 20, 1996, at 35, col. 5; see, People v Francabandera, supra, at 438). In making this prognostic determination, the factors set forth in Wilson v United States, supra, at 463-464, and in People v Francabandera, supra, are a guide in determining whether the amnesic defendant can be accorded a fair trial. The Wilson factors which this Court has considered concerning the effect of amnesia upon the right to a fair trial are: (1) The extent to which the amnesia affects the defendant's ability to consult with and assist his lawyer; (2) The extent to which the amnesia affects the defendant's ability to testify in his own behalf; (3) The extent to which the evidence could be extrinsically reconstructed in view of the defendant's amnesia; (4) The extent to which the Government assisted the defendant and his counsel in that reconstruction; (5) The strength of the prosecution's case; and (6) Any other facts and circumstances which would indicate whether the defendant can have a fair trial.

Applying the Wilson factors, defendant has exhibited the ability to consult with his attorney and is capable of discussing and assisting counsel with his case. Defendant exhibits that he possesses sufficient intelligence and judgment to listen to the advice of counsel. Further, defendant's ability to testify on his own behalf may be limited by his lack of recall, but it should be noted that defendant testified at the suppression hearing. Evidence can be reconstructed extrinsically and discoverable material has been and will be made available to the defense. Regarding the strength of the People's case, the Court reviewed the Grand Jury minutes and the charges against defendant and concluded that the charges were supported by legally sufficient evidence (see, People v Soto, supra, at 634).

In conjunction with the above factors and to afford defendant a fair trial, the Court orders expanded discovery by the People (see, People v Johnson, 115 Misc 2d 366 [the court ordered the People to supply the defendant with any and all prior written, recorded or oral statements of actual witnesses to the alleged crimes (not including statements of police who were non-witnesses) including the Grand Jury statements of such witnesses]; People v Goodell, 164 AD2d 321, affd 79 NY2d 869; People v Rivera, 111 Misc 2d 713 [the court ordered the People to make full disclosure of its case including the Grand Jury minutes]; see generally, People v Wright, 105 AD2d 1088 [the prosecution made available all of its evidence to defense counsel]). Expanded discovery may assist in the reconstruction of the facts and circumstances which are material to the defense and may also guide defense counsel in the examination and cross-examination of witnesses. Even if defendant were not entitled to expanded discovery pursuant to CPL article 730, defendant is entitled to expanded discovery pursuant to CPL 240.40 (1) (c).

Accordingly, pursuant to CPL 240.40 (1) (c) and People v Francabandera, supra, the Court orders the People to disclose: All reports of police, fire and ambulance personnel that responded to the scene;

All reports of child protective service workers; [*4]

All photographs and videotapes taken at the scene;

All photographs taken of defendant;

All statements of witnesses that exist;

All records of the medical examiner with respect to the autopsy examinations;

All hospital records with respect to treatment of the victims;

All reports of DNA testing from the crime scene;

All blood splatter analysis and reports;

An audio recording of the 911 call and any transcript of the call; and

All Grand Jury minutes.

The People have indicated in their answering affirmation that they have provided the defense with the items listed above. Also the People indicated that they have provided the defense with notice of the existence of witness James Valentine and his potential testimony.

The Court further orders the People to provide:

Oral, written, or recorded statements of any and all eye witnesses to the crimes charged in the indictment on April 8, 2005 at 250 Cameron Hill Drive in the Town of Greece , including any Grand Jury testimony of such witnesses.

Accordingly, defendant's motion for expanded discovery is granted as set forth herein. Laying bare the People's case, "witness by witness, exhibit by exhibit" as articulated by defense counsel at oral argument is denied. Defendant's motion for a determination that defendant is not fit to proceed to trial because his amnesia precludes him from receiving a fair trial is denied. As such, the Court does not reach the third prong of defendant's motion. Defendant may renew that prong at the conclusion of the trial. Relief not specifically granted herein is denied.

The above constitutes the Decision and Order of this Court.

Dated:Rochester, New York

January 26, 2006

____________________________________

Hon. Joseph D. Valentino

Justice Supreme Court