People v Carrero

[*1] People v Carrero 2012 NY Slip Op 50202(U) Decided on February 8, 2012 Supreme Court, Kings County Cyrulnik, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 8, 2012
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Victor Carrero, Defendant.



11699/2009



Appearances of Counsel:

Charles J. Hynes, Esq., Kings County District Attorney, by Assistant District Attorney Lindsay Ashwal, for the People of the State of New York.

Office of Seymour James, Esq., Legal Aid Society, by Joseph A. Miller, Esq., for Defendant, Victor Carrero.

Miriam Cyrulnik, J.

The People have served and filed an Affirmation in Opposition to Defendant's Notices of Intent to Offer Psychiatric Evidence, dated November 29, 2011 and December 15, 2011, arguing that the notices should be quashed and defendant precluded from offering psychiatric evidence in his defense at trial. This court deems the People's affirmation to be a Motion to Preclude for purposes of rendering the instant decision.

The People contend that defendant's notices are untimely (see CPL §250.10 [2]) and that defendant has not shown good cause for his delay in serving them. In the alternative, the People request an order directing defendant to submit to examination by a psychiatrist or licensed psychologist designated by the People, pursuant to CPL §250.10 (3).

Defense counsel argues that, due to defendant's two periods of psychiatric commitment and the evaluation processes that led to them, he was not afforded sufficient time to meet and properly communicate with defendant for the purpose of determining the facts of the case and whether or not a psychiatric defense was appropriate. He asserts that this is good cause for the delay in serving the Notices of Intent to Offer Psychiatric Evidence and claims that the People are not prejudiced by their late submission.

In determining the motion, this court has reviewed defendant's notices, the People's Affirmation in Opposition of [sic] Defendant's Notices of Intent to Offer Psychiatric Evidence, defendant's Affirmation in Opposition to People's Motion to Vacate [sic] and the court file.

Defendant stands indicted for Attempted Assault in the First Degree and other felony charges, under Indictment Number 11699/2009. Defendant was arraigned on the indictment on February 22, 2009. On April 20, 2009, at defense counsel's request, the court ordered a CPL §730 examination of defendant. Defendant was found unfit to proceed and committed to the custody of the Commissioner of Mental Hygiene on June 24, 2009. Following a lengthy period of commitment, defendant was found fit to proceed and returned to the custody of the Department of Correction on [*2]October 5, 2010. At defense counsel's request, another CPL §730 examination was ordered by the court on March 30, 2011. Defendant was found unfit to proceed and committed to the custody of the Commissioner of Mental Hygiene on June 16, 2011. Following another period of commitment, defendant was found fit to proceed and returned to the custody of the Department of Correction on October 18, 2011.

Defendant served a Notice of Intent to Offer Psychiatric Evidence on November 29, 2011. The notice states that defendant "intends to offer at trial evidence of mental disease or defect in connection with the affirmative defense of lack of criminal responsibility by reason of such mental disease or defect as set forth in Section 40.15 of the Penal Law."

Defendant served a second Notice of Intent to Offer Psychiatric Evidence on December 15, 2011. This notice states that defendant "intends to present psychiatric evidence of mental disease or defect in connection with a defense pursuant to Criminal Procedure Law ("CPL") §250.10 (a), (b), and/or (c)." The notice goes on to inform that "as of this date, the defense has not yet made a determination as to the viability of a particular psychiatric defense and its psychiatric basis but will amend this notice when such determination is made [citation omitted]."

On December 19, 2011, this court instructed the People to state their objections to defendant's notices in writing.

CPL §250.10 (2) states:

Psychiatric evidence is not admissible upon trial unless the defendant serves upon the People and files with the court a written notice of his intention to present psychiatric evidence. Such notice must be served and filed before trial and not more than thirty days after entry of a plea of not guilty to the indictment. In the interest of justice and for good cause shown, however, the court may permit service and filing to be made at any later time prior to the close of evidence.

When a defendant serves notice of the intent to offer psychiatric evidence, the People are entitled to have that defendant examined by a psychiatrist or licensed psychologist of their designation (see CPL §250.10 [3]).

"The Legislature enacted CPL §250.10 to promote procedural fairness and orderliness. The statute is designed to create a format by which psychiatric evidence may be prepared and presented manageably and efficiently, eliminating the element of surprise. With that in mind, the Legislature has formulated a procedure that depends upon proper notification, adversarial examination and preclusion when appropriate" (People v. Almonor, 93 NY2d 571, 577-578 [1999]).

In addition to being timely, notice pursuant to CPL §250.10 must "contain enough information to enable the prosecution and the court to discern the general nature of the alleged psychiatric malady and its relationship to a particular, proffered defense. Unless the prosecution is so informed, it will not be able conduct a meaningful psychiatric examination of its own" (id. at 581; see also People v. Muller, 72 AD3d 1329 [3d Dept 2010], lv denied 15 NY3d 776 [2010]).

"The decision whether to allow a defendant in the interest of justice and for good cause shown' to serve and file a late notice of intent to introduce psychiatric evidence is a discretionary determination to be made by the trial court. The trial court's discretion in this matter, however, is not absolute. Exclusion of relevant and probative testimony as a sanction for a defendant's failure to comply with a statutory notice requirement implicates a defendant's constitutional right to present witnesses in his own defense. In making its determination, the trial court must therefore weigh this [*3]right against the resultant prejudice to the People from the belated notice (citations omitted)" (People v. Berk, 88 NY2d 257, 266 [1996]; see also People v. DiDonato, 87 NY2d 992 [1996]; People v. Holland, 173 Misc 2d 286 [Westchester County Ct 1997]).

In the case at bar, it is undisputed that defendant's notices are untimely. Defendant was arraigned on the indictment on February 22, 2010. Defendant did not serve and file notice pursuant to CPL §250.10 within thirty days of pleading not guilty at his arraignment. The court finds dubious defense counsel's claim that he did not have sufficient time to meet and communicate with defendant due to the circumstances of his psychiatric commitments. Defendant was incarcerated with the Department of Correction from his arraignment on February 22, 2010, to the first scheduled court date of April 20, 2010. This two month period should have been ample time for defense counsel, who is charged with knowledge of the statutory deadline for CPL §250.10 notice, to meet and evaluate defendant.

Likewise, the court is not entirely persuaded by defense counsel's claim that he has been unable to make determinations regarding the facts of the case and the competency of defendant. It was defense counsel who requested the initial CPL §730 evaluation on April 20, 2010. He had clearly formed an opinion regarding defendant's competency at that early stage of the proceedings and the possibility of a psychiatric defense should have been a prime consideration at that time.

Additionally, even though the thirty day deadline for CPL §250.10 notice had passed by the time the court ordered the first CPL §730 evaluation, the court file indicates that Robert Peck, a Legal Aid Society mental hygiene specialist and expert, was present for and participated in the CPL §730 evaluation that took place on May 6, 2010. Although no longer able to serve and file timely CPL §250.10 notice, defense counsel had abundant opportunity to evaluate defendant and serve CPL §250.10 notice immediately following May 6, 2010. At that time, a more credible and compelling argument for good cause might have been available to defendant.[FN1]

In addition to being untimely, defendant's notices fail to furnish enough information to enable the prosecution and the court to discern the general nature of the alleged psychiatric malady and its relationship to a particular proffered defense. The November 29, 2011 notice, which fails to even cite CPL §250.10, gives absolutely no indication of the nature of the psychiatric condition alleged to affect defendant or how it relates to his affirmative defense. The notice simply states that psychiatric evidence will be offered by defendant. Significantly, counsel acknowledged on the record that it was insufficient as justification for filing the second notice two weeks later.

The December 15, 2011 notice, which cites CPL §250.10, likewise lacks any indication of the nature of the psychiatric evidence intended to be offered by defendant. Indeed, the notice admits that defendant has not determined whether or not a viable psychiatric defense exists. Defendant relies entirely upon the ability to amend the notice at a later date.

It is recognized that "the defense may often be unable to make an early determination as to the viability of a particular psychiatric defense and its psychiatric basis. There is nothing in [CPL §250.10], however, that prohibits amendment of a notice. Indeed, in some cases it may be warranted, owing to circumstances and developments that vary from case to case. All of this is [*4]subject, of course, to the court's determination as to good cause, timeliness, prejudice and other appropriate considerations" (People v. Almonor, 93 NY2d at 582). However, defendant's notices do not come at an early stage in the proceeding, but after nearly two years during which defendant received extensive psychiatric treatment. In acknowledging the ability to amend CPL §250.10 notice, the Court of Appeals could not have intended to allow a defendant to rely upon untimely notice that provides no meaningful information until such a time as defendant is ready to disclose his defense. To allow such practice would be in direct conflict with the recognized legislative intent of promoting procedural fairness, orderliness and efficiency.

Finally, the court file indicates that, although defendant has genuine psychiatric problems, they are well-managed with medication. Upon being declared fit to proceed in October 2011, it was reported that defendant is a malingerer, who is deliberately manipulating the court and mental hygiene system to delay the proceedings.

Based upon the foregoing it is abundantly clear that defendant failed to fulfill the procedural requirements of CPL §250.10 and has not demonstrated good cause for this failure. If this were the sole consideration in the court's determination, preclusion of a psychiatric defense would be appropriate. However, the court is cognizant of its responsibility to weigh defendant's constitutional right to a defense against prejudice to the People in prosecuting this matter. It is this responsibility that leads the court to conclude that it would not be in the interest of justice to order preclusion here.

The extreme measure of precluding a defendant from offering a psychiatric defense has generally been reserved for cases in which the issue is raised on the eve of, or during trial (see People v. Berk, 88 NY2d 257, supra [psychiatric defense precluded where psychiatric evidence offered several weeks into trial]; People v. Almonor, 93 NY2d 571, supra [psychiatric defense precluded where psychiatric evidence offered just before jury selection and in the midst of trial]); People v. Wagner, 27 AD3d 671 [2d Dept 2006], lv denied 6 NY3d 854 [2006]; People v. Rizzo, 267 AD2d 1041 [4th Dept 1999], lv denied 95 NY2d 838 [2000]). In such cases, defendant's constitutional rights to a defense were outweighed by the extreme prejudice to the prosecution.

By contrast, preclusion has been denied where defendant's notice was untimely and insufficient, but did not result in prejudice to the prosecution (see People v. Cunningham, 30 Misc 3d 1211A [Sup Ct, Westchester County 2010]; People v. Holland, 173 Misc 2d 286 [Westchester County Court 1997] [preclusion denied where good cause for untimeliness of CPL §250.10 notice established and no prejudice to the prosecution occurred]).

It is undisputed that defendant has genuine psychiatric problems, which have resulted in two periods of psychiatric confinement during the pendency of this case. Additionally, this matter is not yet in a trial posture, making it possible for the People to adequately prepare for defendant's psychiatric defense. Therefore, this court finds that the People will not be prejudiced by defendant's offer of a psychiatric defense.

However, recognizing the extraordinary delay that has occurred to date, this court hereby imposes the following conditions to be met by defendant:

1) Defendant must provide the People with an amended/supplemental CPL §250.10 notice, which contains enough information to enable the prosecution and the court to discern the general nature of the alleged psychiatric malady and its relationship to a particular, proffered defense no later than thirty days from the date of this order.

2) Defendant must submit to examination by a psychiatrist or licensed psychologist [*5]designated by the People to take place no later than thirty days from the People's receipt of defendant's amended/supplemental CPL §250.10 notice.

Failure of defendant to comply with either of these conditions in a timely manner will result in preclusion of psychiatric evidence at trial (see People v. Muller, 72 AD3d at 1333 [trial court properly precluded psychiatric evidence where defense failed to comply with conditions set by court after finding CPL §250.10 notice insufficient]).

Accordingly, the People's Motion to Preclude is denied, subject to defendant's strict compliance with the conditions imposed by the court.

This constitutes the Decision and Order of the Court.

Dated: February 8, 2012

J.S.C. Footnotes

Footnote 1: It should be noted that Mr. Peck also attended defendant's second CPL §730 evaluation on April 15, 2011. Similar reasoning applies regarding earlier opportunities for defense counsel to have served CPL §250.10 notice.