People v Hernandez

[*1] People v Hernandez 2004 NY Slip Op 51602(U) Decided on December 10, 2004 Supreme Court, Kings County D'Emic, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2004
Supreme Court, Kings County

THE PEOPLE OF THE STATE OF NEW YORK

against

RAUL HERNANDEZ, Defendant.



898/04

Matthew J. D'emic, J.

Defendant, in this domestic violence prosecution, is charged with murdering his girlfriend, placing her body in a garbage bag and leaving her to be picked-up and deposited in a garbage truck. He initially served upon the People a notice of psychiatric defense and hired a licensed psychologist who examined the defendant but did not issue a report.

The defendant has now amended his notice to the effect that he will interpose the mitigating defense of extreme emotional disturbance. He will not present expert psychiatric testimony at trial, but will rely instead upon lay testimony, that is, defendant himself will testify about his extreme emotional disturbance at the time of the event.

The People move, pursuant to Criminal Procedure Law §250.10 (3) for an order directing the defendant to be examined by their expert, or, if he refuses for a jury instruction about his refusal. In addition, the People seek discovery of any notes or test results relating to defendant's extreme emotional disturbance, in the possession of the expert defendant initially retained pursuant to Criminal Procedure Law §240.30.

Criminal Procedure Law §250 requires that a defendant give notice to the prosecution of his intention to present psychiatric

evidence, which includes "evidence in connection with the affirmative defense of extreme emotional disturbance..." and that the People, upon receiving such notice, may then apply for an order directing the defendant submit to an examination by the People's expert.

Defendant opposes the People's request asserting his privilege against self-incrimination. [*2]Defendant further asserts that the privilege is not waived since he is not presenting expert testimony at trial. This assertion is misplaced. Once a defendant puts his mental status in issue he is deemed to have waived the constitutional privilege (People v Cruickshank, 105 AD2d 325), and this is true whether the defendant is interposing an insanity defense, an extreme emotional disturbance defense or any evidence of a syndrome seeking to mitigate or justify the defendant's actions (People v Berk, 88 NY2d 257).

It is also true regardless of whether the defendant was examined by his own expert (People v Berk, 88 NY2d 257; People v Kruglik, 256 AD2d 592) and regardless of whether the defendant seeks to call an expert as a witness at trial (People v Diaz,

3 Misc 3d,686; People v Irwin, 182 Misc 2d 1136).

The defendant, by claiming he acted in a state of extreme emotional disturbance, has placed his mental condition in issue and the People have the right to test his claim through the use of an expert trained in psychiatry or psychology. Since the defendant can establish his claim through lay testimony (People v Smith,

1 NY3d 610; People v Roche, 98 NY2d 70), it would be unreasonable to limit the People's ability to refute the claim, if they can. To hold otherwise would be to relegate the trial to a crap-shoot where a defendant void of any defense could roll loaded dice expecting to throw a winner. Certainly, the better course is to insist his defense be put to the test by an expert prior to trial in order that a jury be provided with balanced information.

As stated in State v Fair, 496 AD2d 461 (CT, 1985): "Any defendant who asserts the defense of an extreme emotional disturbance, whether or not he resorts to offering psychiatric testimony, raises the issue of his mental status and hence relinquishes his privilege against submitting to court ordered psychiatric examination."

Since the People's expert is a rebuttal witness, such testimony will only be admitted if and after the defendant puts his mental status at issue. If the defendant refuses to cooperate with the expert examiner and does present psychiatric evidence, the jury will be instructed of that fact (CPL §250.10 [5]).

With respect to the district attorney's demand for discovery of reports, notes or lists in the possession of counsel or his expert, Criminal Procedure Law §240.30 (1) requires a defendant to disclose: "...any written report or document...concerning...a mental examination, or scientific test...made by or at the request or direction of the defendant, if the defendant intends to introduce such report or document at trial, or if the defendant has filed a notice of intent to proffer psychiatric evidence and such report or document relates thereto..." (emphasis added).[*3]

In this case, the defense expert did not prepare a written report and she cannot be compelled to do so (People v Purdon, 175 Misc 2d 795). However, since the defendant intends to offer psychiatric evidence of extreme emotional disturbance at trial and has filed a notice of intent to do so, any written document concerning a mental examination or scientific test relating to that mitigating defense must be turned over to the People.

The statute does not condition this type of discovery on the defendant's intent to use it at trial, as it does for other types of discovery, and it is settled that this discovery is not violative of defendant's right against self-incrimination (Lee v County Clerk of Erie County, 27 NY2d 432). In addition, defense counsel's contention that forcing discovery causes a defendant to investigate psychiatric defenses at his peril was argued at the time of enactment of the statute and the legislature concluded that public policy favored open discovery.

This constitutes the Decision and Order of the court.

________________________

Matthew J. D'Emic

J.S.C.