People v Rizzo

[*1] People v Rizzo 2006 NY Slip Op 51796(U) [13 Misc 3d 1212(A)] Decided on September 13, 2006 County Court, Westchester County Bellantoni, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2006
County Court, Westchester County

The People of the State of New York,

against

Frank Rizzo, Defendant.



05-1414



ADA Patricia M. Murphy

Westchester County District Attorney's Office

111 Dr. Martin Luther King, Jr. Blvd.

White Plains, New York 10601

Michael Santangelo, Esq.

Santangelo, Randazzo & Mangone, Llp

151 Broadway

Hawthorne, New York 10532

Rory J. Bellantoni, J.

By Indictment Number 05-1414, Defendant has been charged with the crimes of (i) three counts of Murder in the First Degree (NY PENAL Law §125.27); (ii) four counts of Murder in the Second Degree (NY PENAL Law §125.25); and, (iii) two counts of Kidnapping in the First Degree (NY PENAL Law §135.25). It is alleged that on October 7, 2005, Defendant tied the victim to a chair in her bedroom, struck the victim in the face, and then intentionally shot the victim twice in the chest, thereby causing the victim's death.

On May 3, 2006, upon request of defense counsel, the Court granted Defendant's application for a psychiatric examination pursuant to C.P.L. § 730. On May 31, 2006, the Court received two examination reports from two psychologists, Dr. Kucharski and Dr. Gonzalez-Miller. Their reports stated that, in their opinions, Defendant was not competent to stand trial. At the request of the People, pursuant to C.P.L. § 730.30(2), the Court held a competency hearing on June 27, 2006.

At the hearing, Dr. Kucharski and Dr. Gonzalez-Miller both testified. Dr. Kucharski stated that the examination was conducted simultaneously, i.e., that both doctors were present during the same one hour interview with Defendant. Dr. Kucharski testified that Defendant was not responsive during the interview and that he had difficulty getting Defendant "to stay on track." Dr. Kucharski stated that Defendant "preferred to veer off into conversations about the relationships with the women that he had had," rather than answer Dr. Kucharski's questions. Minutes of June 27, 2006, p. 11, lines 9-12. Dr. Kucharski admitted, however, that he was able to ascertain background information from Defendant, such as, educational level, country of origin, employment information, prior relationships and that Defendant is the father of four children. Dr. Kucharski testified that he was aware that Defendant had been examined by a psychiatrist at the jail who found Defendant to be devoid of severe psychiatric symptoms and that Defendant was not housed in a psychiatric unit as a result of this examination. Dr. Kucharski stated that it was his understanding that Defendant was on suicide watch for a brief period, but Defendant did not want to be placed on suicide watch. Dr. Kucharski further testified that he discussed with Defendant the possibility of having Defendant moved to the mental health [*2]unit at the jail, but Defendant was resistant to that suggestion. On direct examination, Dr. Kucharski admitted that while he stated in his report of May 24, 2006 (Court Exhibit 1) that "Mr. Rizzo is so severely depressed that he has no motivation to mount a defense" that statement was an overstatement; Dr. Kucharski corrected his report's conclusion stating that Defendant's motivation to mount a defense is "significantly impaired." Dr. Kucharski testified that he has conducted over 500 competency examinations in the federal system and approximately 50 examinations in Westchester County, but he could not recall any examination in which he found a defendant incompetent as a result of depression.

Dr. Gonzalez-Miller testified that she had conducted approximately 17 or 18 competency examinations and opined that Defendant was not competent because she believed that Defendant was suffering from a major depression disorder and Defendant lacked motivation to present and assist in his defense as a result of his depression. Nonetheless, Dr. Gonzalez-Miller testified that Defendant was oriented to time and place and that this was the only time she had found a defendant incompetent as a result of depression. Dr. Gonzalez-Miller admitted that Defendant chose the topics of conversation and steered the conversation to the topic of his prior relationships. Dr. Kucharski and Dr. Gonzalez-Miller both indicated that it would be reasonable for a person to be depressed and/or suicidal as a result of remorse and/or guilt.

At the conclusion of the hearing, on June 27, 2006, the Court reserved decision and, sua sponte, ordered that the Defendant be further examined by two separate psychiatrists. Despite the testimony of the witnesses, the Court had serious concerns as to the ultimate conclusion of each witness - that the Defendant was not competent to stand trial - given the fact that each witness' factual testimony contradicted his/her stated opinions and conclusions.

On July 11, 2006, the Court received the psychiatric examination reports from Dr. Gallagher and Dr. Zolkind. On August 11, 2006, the two psychiatrists, Dr. Gallagher and Dr. Zolkind, testified at the continued competency hearing. Dr. Gallagher testified that the interviews were conducted separately. Dr. Gallagher described Defendant as pleasant and cooperative during the examination. Dr. Gallagher testified that Defendant did not appear to be psychotic and, while Defendant was sad and moderately depressed, he did not feel that Defendant's depressive feelings reached a level of what he would call a clinical diagnosis of major depression. See, Minutes of August 11, 2006, p. 6, lines 18-20. Dr. Gallagher further testified that Defendant did not present with any "neuro-vegetative" signs associated with major depression, such as problems with energy level, sleep and appetite. Dr. Gallagher concluded that, in his professional judgment, Defendant was competent, finding that Defendant was coherent, oriented, understood the charges against him, the legal process and understood the need to participate in his defense. Dr. Gallagher further opined, within a reasonable degree of medical certainty, that Defendant had the capacity to proceed to trial and assist in his defense.

Dr. Zolkind also described Defendant as pleasant, cooperative and oriented during his separate examination. Dr. Zolkind testified that Defendant, when questioned, indicated that he understood the proceedings, the charges against him and how to participate in his defense. Dr. Zolkind stated that Defendant was sad and felt guilty, but denied delusions, hallucinations or any thought disorder. Dr. Zolkind concluded that Defendant's judgment and insight were good and that Defendant has the capacity to assist in his defense as well as to enter a guilty plea.

In any criminal proceeding, there is a presumption of sanity, and a defendant is presumed to be competent. People v. Gelikkaya, 84 NY2d 456, 618 NYS2d 895 (1994); People v. Bones, [*3]309 AD2d 1238, 764 NYS2d 743 (4th Dep't 2003). However, once a defendant challenges such a presumption, it is considered rebutted and thus, the People then bear the burden of proving, by a preponderance of the evidence, that the defendant is competent to stand trial. See, People v. Mendez, 1 NY3d 15, 769 NYS2d 162 (2003).

CPL § 730.10 defines an incapacitated person as a defendant that, as a result of mental disease or defect, lacks the capacity to understand the proceedings against him or is unable to assist in his own defense. People v. Tortorici, 249 AD2d 588, 671 NYS2d 162 (3rd Dep't 1998). However, the determination of fitness to proceed is not a medical determination, but rather, a judicial determination. Id. In making a determination of whether a defendant is competent, the court must consider the expert medical proof along with other evidence before the court. Id. Some of the factors that a court may consider on the issue of competency are 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 proceedings against him; (4) can establish a working relationship with his attorney; (5) has sufficient intelligence and judgment to listen to advice of counsel, without necessarily adopting it, and appreciate that one course of conduct may be more beneficial to him than another; and (6) is sufficiently stable to withstand the stresses of a trial. People v. McPhee, 161 Misc 2d 660, 614 NYS2d 884 (Queens County 1994) (cites omitted).

At the conclusion of the June 27, 2006 hearing, the Court was unable to render a decision and thus, the Court ordered further expert examinations. Defendant argues that the Court lacked the authority to order a separate and further examination. However, not only does CPL § 730.30(2) specifically authorize the hearing court to order such further examinations, but mandates such a result, stating that if following a hearing the court is not satisfied that the defendant is not an incapacitated person, "it must issue a further order of examination directing that the defendant be examined by different psychiatric examiners designated by the director." Likewise, where the Court is not swayed by the evidence that Defendant is not competent, it may order additional examinations. See, People v. Verrone, 96 AD2d 955, 466 NYS2d 411(2nd Dep't 1983)(Court's selection of a third psychiatrist to examine Defendant, after two experts had found Defendant incompetent to stand trial, was upheld). While the Court reserved decision at the conclusion of the June 27, 2006 proceeding without stating the reasons therefore, the Court was, in fact, not satisfied that the experts' opinions were consistent with the evidence presented at the hearing.

On June 27, 2006, Dr. Kucharski and Dr. Gonzalez-Miller testified that the Defendant was so depressed that he lacked motivation to assist in his defense; they concluded that the depression was causing Defendant to have an irrational thought process. However, when pressed for specific examples of an "irrational thought process", neither psychologist was able to support their opinion, except to state that the presence of a severe psychiatric disability, such as major depression, was causing Defendant's irrational and/or suicidal thoughts which were manifested in Defendant's lack of motivation to assist in his defense. The logic, if it can be called such, was completely circular. In the end, both psychologists admitted that it is reasonable for a person to be depressed when experiencing feelings of sadness, remorse and guilt - - particularly a person in Defendant's position.

As noted above, the Court continued Defendant's competency hearing on August 11, 2006. Dr. Gallagher and Dr. Zolkind, two psychiatrists, each found, in their separate examinations of the Defendant, that Defendant was pleasant and cooperative, oriented as to time [*4]and place, and able to understand the proceedings against him. Both psychiatrists found that Defendant was able to assist in his defense.

The Court is now faced with the testimony of two psychologists that conflicts with the testimony of the two psychiatrists; the two psychologists found the Defendant incompetent, while the two psychiatrists found the Defendant competent to stand trial [FN1]. A Court has great deference in making a determination of competence, even in the face of conflicting evidence, and may override expert opinion. People v. Mendez, supra ; see also, People v. Troy, 28 AD3d 689, 817 NYS2d 289 (2nd Dep't 2006). This Court will not abdicate its discretion, as the ultimate finder of fact, to the experts called to testify, notwithstanding the psychologists' opinions and conclusions.

While the Court does not discredit the testimony of the two psychologists, the Court finds that the factual testimony presented by the psychologists was in direct conflict with their own ultimate conclusions. The factual testimony of Dr. Kucharski and Dr. Gonzalez-Miller would lead this Court (and any other finder of fact) to conclude that Defendant was competent, yet their conclusions contradicted such testimony. For example, each psychologist's factual testimony established that Defendant was oriented to time and place; is able to perceive, recall and relate; has an understanding of the proceedings against him; can establish a working relationship with his attorney, although not motivated to do so; has sufficient intelligence and judgment to listen to advice of counsel, even if he chooses not to follow it; and appears sufficiently able to withstand the stresses of trial, as he has withstood the stresses of the proceedings thus far. Inexplicably, even though both psychologists testified to all the foregoing factors, both focused on Defendant's depression and concluded that Defendant's depression is causing an irrational thought process (though they concede that depression, guilt and remorse are rational and reasonable feelings to be experienced by a person in Defendant's situation). Both psychologists concluded that Defendant's irrational thinking is manifested in Defendant's lack of motivation to mount a defense. However, neither lack of motivation, nor a defendant's irrational refusal to cooperate with his attorney, has been held to be synonymous with incompetence. People v. McMillan, 212 AD2d 445, 622 NYS2d 935 (1st Dep't 1995). It is a defendant's ability, not his willingness, to assist in his defense that determines competency. People v. Beander, 1 AD3d 632, 766 NYS2d 409 (3rd Dep't 2003).

The Court has taken into consideration all factors, including, but not limited to, the fact that Defendant is not housed at the mental health unit at the jail, is not on suicide watch and has been examined by at least three (3) psychiatrists, none of whom have found Defendant to have a major depressive disorder or any other psychiatric condition.

Upon review of the reports submitted, the testimony elicited at both hearings, the memorandum of law submitted by the Defendant and the People and the relevant case law, this Court finds that the People have met their burden of proof, by a preponderance of the evidence. This Court will rely on the expert opinions of the psychiatrists that testified on August 11, 2006 as well as its own observations and all the evidence and testimony elicited at both hearings. Accordingly, the Court finds that the Defendant is competent to stand trial pursuant to C.P.L. § [*5]730.

The foregoing constitutes the Decision and Order of the Court.

Dated: September, 2006__________________________________

White Plains, New YorkHon. Rory J. Bellantoni, J.C.C.

Footnotes

Footnote 1: It is not lost upon the Court that the psychiatrists conducted their exams nearly two months after the psychologists conducted their examinations.