People v Cunningham

[*1] People v Cunningham 2010 NY Slip Op 52345(U) [30 Misc 3d 1211(A)] Decided on December 8, 2010 Supreme Court, Westchester County Molea, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2010
Supreme Court, Westchester County

The People of the State of New York

against

Kasem Cunningham and GWENDOLYN THOMPSON, Defendant.



09-1559-01



Honorable Janet DiFiore

Westchester County District Attorney

County Courthouse

111 Dr. Martin Luther King, Jr. Blvd.

White Plains, New York 10601

Attn: A.D.A. Virginia Marciano

David L. Rich, Esq.

Attorney for Defendant

175 Main Street, Suite 711-2

White Plains, New York 10601

Richard A. Molea, J.

Upon considering the defendant's instant application seeking leave of the Court for the filing of notice of intent to proffer psychiatric evidence, the Court has considered the following papers: order to show cause and affirmation in support of counsel for the defendant, David Rich, Esq., and the affirmation in opposition and memorandum of law of Assistant District Attorney Virginia A. Marciano.

RELIEF REQUESTED

By order to show cause, the defense moves the Court for leave to file a notice of intent to proffer psychiatric evidence at trial pursuant to CPL 250.10(1)(a), (b) and (c), despite the conceded failure of the defense to comply with those terms of CPL 250.10(2) which require that such notice be filed within thirty (30) days following the defendant's entry of a plea of not guilty to the indictment.

FINDINGS OF FACT

Under the instant indictment, the defendant has been charged with a single count of Murder in the first degree pursuant to Penal Law § 125.27(1)(a)(vii), a single count of Murder in the second degree pursuant to Penal Law § 125.25(1), a single count of Murder in the second degree pursuant to Penal Law § 125.25(3), and a single count of Burglary in the first degree pursuant to Penal Law § 140.30(3). In support of these charges it is alleged, in substance, that the defendant did unlawfully enter the dwelling of Denisha McDuffy on November 16, 2009 and upon gaining entry did intentionally stab her in and about the face, head and body with a knife or knife-like object thereby causing her death. On December 15, 2009, the defendant was arraigned on the instant indictment before the Westchester County Court (Cacace, J.) and entered a plea of not guilty to all of the counts charged thereunder.

By Order of the Westchester County Court (Hubert, J.), dated February 11, 2010, the application of the People seeking to compel the defendant to submit to the taking of buccal cells from his body for the purpose of conducting a forensic examination and comparison of DNA samples was granted. By Decision and Order, filed and entered April 6, 2010, the Westchester County Court (Hubert, J.) addressed the defendant's omnibus motion seeking various forms of relief, granting same to the extent that suppression hearings were ordered concerning the trial admissibility of statement evidence and identification evidence and the permissible scope of cross-examination of the defendant at trial. By Supplemental Decision and Order, filed and entered May 25, 2010, the Westchester County Court (Hubert, J.) granted the defendant's challenge to the trial admissibility of specific items of physical evidence to the extent that a suppression hearing was ordered concerning the trial admissibility of such physical evidence. By Trial Readiness Order, filed and entered on April 6, 2010, the Westchester County Court (Hubert, J.) transferred the instant indictment to the Trial Assignment Part (TAP) presided over by this Court for further proceedings involving the scheduling of the trial of this matter and the assignment of a trial judge.

On April 8, 2010, upon the first appearance of this case on the TAP calendar, this Court granted the application of defense counsel seeking the entry of an order of examination to determine the defendant's competency to stand trial pursuant to Article 730 of the Criminal Procedure Law. On May 10, 2010, this Court received two written Psychiatric Evaluation Reports which set forth the consistent findings of two distinct psychiatric examiners who [*2]indicated in their respective written reports that the defendant was competent to proceed to trial in this case. On May 13, 2010, this Court provided the parties with copies of the two Psychiatric Evaluation Reports and the defense request for an adjournment of this case until May 27, 2010 in order to enable defense counsel to review the Psychiatric Evaluation Reports before further proceedings were conducted under CPL Article 730. On May 27, 2010, the Court granted a request by the defense for another adjournment of this case until June 17, 2010 for further proceedings under CPL Article 730. On June 17, 2010, the Court declined to sign defense counsel's proffered order to show cause seeking permission to file a late notice of intention to introduce psychiatric evidence at trial, findings same to be premature due to the pendency of proceedings pursuant to CPL Article 730. Thereafter, the Court granted a request by the defense for another adjournment of this case until July 1, 2010 for further proceedings under CPL Article 730. On July 1, 2010, this Court granted a request by the defense for another adjournment of this case until July 22, 2010 for consideration of defense counsel's application to be relieved from her continued representation of the defendant in this case as assigned counsel. On July 27, 2010, the Court granted the application of Jeanne Mettler, Esq., to be relieved from her representation of the defendant in this case and assigned David Rich, Esq., as counsel pursuant to County Law §18-b, thereafter granting the defense application for an adjournment of this case until September 2, 2010.

On September 2, 2010, this Court granted the application of defense counsel seeking the entry of a new order of examination to determine the defendant's competency to stand trial pursuant to Article 730 of the Criminal Procedure Law and adjourned this matter to September 30, 2010 for the completion of the ordered psychiatric examinations. On September 30, 2010, this Court received two written Psychiatric Evaluation Reports from the Director of Mental Health at the Westchester County Jail which set forth the consistent findings of two distinct psychiatric examiners who indicated in their respective written reports that the defendant was competent to proceed to trial in this case. After providing the parties with copies of these reports, the defense challenged the conclusions reached in the reports regarding the competency of the defendant and the Court granted defense counsel's request for an adjournment of this case until October 19, 2010 for a hearing pursuant to CPL 730.30(4). On October 19, 2010, this Court conducted a hearing pursuant to CPL 730.30(4) and received the testimony of Drs. Normaris Gonzalez-Miller and Thomas Kucharski, thereupon finding that the defendant was not an incapacitated person and was fit to proceed to trial. Following the entry of this oral decision into the record, the Court granted defense counsel's request for an adjournment of this matter until October 28, 2010 for the stated purpose of preparing a motion seeking leave to file an untimely notice of intent to proffer psychiatric evidence at trial.

On October 28, 2010, the Court granted defense counsel's request for an additional adjournment until November 4, 2010 for the preparation of a motion seeking leave to file an untimely notice of intent to proffer psychiatric evidence at trial. On November 4, 2010, the defense filed a motion by order to show cause seeking leave to file an untimely notice of intent to proffer psychiatric evidence at trial and the Court executed same, established a motion schedule and adjourned the case until December 9, 2010 for further proceedings.

CONCLUSIONS OF LAW

[*3]The defense moves this Court to enter an order granting leave to file a notice evincing the defendant's intention to proffer psychiatric evidence at trial in support of his proposed defense that, in substance, the defendant lacked the mental capacity to form the intent to cause the death of the victim due to hallucinations, depression and paranoia, as well as his inability to appreciate the consequences of his conduct which caused the death of the victim due to extreme emotional disturbance. In support of the instant application, defense counsel submits that good cause exists for the failure of the defense to timely file a notice of intention to proffer psychiatric evidence at trial, that the People would not be prejudiced if the Court were to grant the instant application and that the defendant would be severely prejudiced if the Court were to deny the instant application. The People oppose the defendant's instant application, arguing that the failure of the defense to comply with the filing limitations period set forth in CPL 250.10(2) in the absence of a sufficient showing of good cause merits the Court's denial of the defendant's request for leave to file the untimely notice.

Pursuant to CPL 250.10(2), psychiatric evidence may not be admitted at trial by the defense "unless the defendant serves upon the people and files with the court a written notice of his intention to present psychiatric evidence . . . before trial and not more than thirty days after entry of the plea of not guilty to the indictment." However, CPL 250.10(2) further provides that the untimely service and filing of such a notice of intent may be permitted by the courts in the interest of justice and for good cause shown, so long as the application is made prior to the close of the evidence in the case on trial. It is now well-settled that the decision of the trial court, upon consideration of these statutory factors, to either grant or deny the defense the opportunity to serve and file a late notice of intent to proffer psychiatric evidence is a discretionary determination to be made on a case-by-case basis (see, People v. Alomonor, 93 NY2d 571; see also, People v. Berk, 88 NY2d 257, cert. denied 519 US 859; People v. DiDonato, 87 NY2d 992). In this regard, the Court of Appeals has cautioned that such discretion is not absolute, as the "[e]xclusion 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" (People v. Berk, supra, at 266). Therefore, the trial court's determination must be based upon a balancing of this constitutional right against the resulting prejudice to the People in the event that the defense was afforded the opportunity to serve and file an untimely notice of intention to proffer psychiatric evidence (see, People v. Berk, supra, at 266).

Although the People urge this Court to deny the defendant's present request for leave to file notice of psychiatric evidence upon their argument that explicit terms of the filing requirements set forth in CPL 250.10(2) have not been complied with, it is significant to note that the People do not suggest that the failure of the defense to comply with the timing provisions of the statute has effectively deprived them of the opportunity to have a sufficiently reliable psychiatric examination of the defendant performed in advance of trial, nor do they suggest that any other form of prejudice would result. Moreover, scrutiny of any claim of resulting prejudice must account for a recognition that the advance notice provisions of CPL 250.10 do not appear to have been enacted to prevent disadvantage to the People resulting from the deprivation of their opportunity to have a psychiatric examination of the defendant performed close-in-time to the defendant's arraignment, rather the legislative intent underlying the advance notice provisions of [*4]CPL 250.10 suggests that the timing provision was designed primarily to prevent the undue delay of trial proceedings and "disadvantage to the prosecution as a result of surprise" (People v. Berk, supra, at 263, quoting Ronson v. Commissioner of Correction, 463 F. Supp. 97, 103).

Consistent with this analysis, those courts which have engaged in the specific balancing exercise required by the Court of Appeals in Berk, have found that only where the defendant's request to file a late CPL 250.10 notice is made in the midst of trial proceedings will the balance of prejudice weigh in favor of preclusion (see, People v. Hill, 4 NY3d 876 [notice given during jury selection]; People v. Berk, supra [notice given during trial]; People v. Conley, 11 AD3d 706, lv. denied 4 NY3d 762 [notice given during jury selection]; People v. Brown, 4 AD3d 886 [notice given during re-trial]). Indeed, where the defendant's request to file a late CPL 250.10 notice is made far enough in advance of trial to afford the People the opportunity to have the defendant examined by a psychiatric professional of their own choosing without unduly delaying the trial proceedings, the balance of prejudice will not justify the preclusion of the psychiatric evidence (see, People v. Gracius, 6 AD3d 222, 223, lv. denied 2 NY3d 800 [notice given prior to start of trial]; see also, People v. Holland, 173 Misc 2d 286 [notice given prior to start of trial]; People v. Royster, Supreme Ct., Westchester County, April 18, 1997, Cowhey, J., indictment No. 96-0991 [notice given prior to start of trial]).

As a trial date for this matter has not yet been scheduled due to the extensive period of time necessitated for the examination of the defendant by psychiatric professionals on behalf of the Westchester County Department of Corrections and the preparation of their reports concerning the defendant's competency to stand trial pursuant to the requirements of CPL Article 730, the prosecution will be afforded an adequate opportunity to have the defendant examined by a psychiatric expert of their choosing without unduly delaying the progress of trial proceedings in this case. Furthermore, any resulting prejudice to the People is minimized where, as here, the defendant's proposed psychiatric expert witness has not yet had an opportunity to examine the defendant, thereby placing the psychiatric experts for both the defense and the People on an equal footing in terms of the timing of their respective examinations of the defendant. Finally, the Court concludes that the potential significance of the psychiatric evidence sought here in support of the proposed defense of lack of responsibility due to mental disease or defect implicates the defendant's constitutional right to present witnesses in his own defense and establishes a compelling need to afford the defendant an opportunity to present such evidence in support of his defense during the trial of this case.

Accordingly, upon consideration of the merits of the defendant's proffer of good cause for the failure to file a notice of intent to introduce psychiatric evidence at trial within the limitations period prescribed by CPL 250.10(2), the Court finds that upon the absence of resulting prejudice to the People, as well as the entry of David Rich, Esq., as counsel for the defendant on July 27, 2010 during the pendency of proceedings in connection with an order of examination issued by this Court to determine the defendant's competency to stand trial pursuant to Article 730 of the Criminal Procedure Law and the lengthy period of such proceedings which only concluded on October 19, 2010, the defense has demonstrated that good cause exists to excuse the failure to timely file the notice at issue.

Based upon the foregoing, the defendant's instant application seeking leave of the Court to file a notice of intent to proffer psychiatric evidence at trial pursuant to CPL 250.10 is granted. [*5]

The foregoing shall constitute the Decision and Order of the Court.

Dated: White Plains, New York

December 8, 2010

Honorable Richard A. Molea

Acting Justice of the Supreme Court