Short Form Order

SUPREME COURT - STATE OF NEW YORK
CRIMINAL TERM - PART TAP- 3 - QUEENS COUNTY

125-01 QUEENS BOULEVARD B ANNEX
KEW GARDENS, NY 11415

P R E S E N T :

MEMORANDUM

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THE PEOPLE OF THE STATE OF NEW YORK : BY ROSENGARTEN, J.
                                                                                        :

                         -against-                                         : DATE: October 5, 1999

MICHAEL HICKSON,                                            : INDICTMENT NO.: 2744/98

Defendant.

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The People move to preclude the defendant's CPL 250.10 notice of intention to introduce evidence at trial of defendant's mental disease or defect, dated July 1, on the basis of its vagueness and untimeliness. Defendant was arraigned on the instant indictment on January 12, 1999, at which time no CPL 250.10 notice was served. At no time prior to June 30, 1999, at which time the matter was in a trial posture, was any notice served. Defendant's affirmation in opposition offers no explanation as to why said notice was not timely served, nor does it demonstrate good cause for this Court to exercise its discretion. The Court is not favorably impressed with defense counsel's claim that the Agood cause@ consists of the fact that AI did not know of this until a short time ago@. (Affirmation of John Broderick at P.2). The only explanation proffered is that current defense counsel was not the defendant's previous attorney at the time the notice should been timely served. Counsel claims that defendant underwent psychiatric treatment while incarcerated, without setting forth any indication of what that treatment entailed, what the malady treated was, or whether it will be claimed that defendant suffered from said malady at the time of the within incident. Counsel states, AI cannot know this for sure, but there is every possibility that even the defendant didn=t know that he had psychiatric problems when he was first arrested and indicted@. (Affirmation of John Broderick at P. 2). There is no indication that the defendant has ever actually been examined for purposes of introducing such evidence, despite the fact that defense counsel has had since July 1, 1999 ( the date notice was served) to do so. This unexplained delay, along with the lack of any evidence, including the name of the expert whose testimony is sought to be introduced, medical reports, or even a specific diagnosis as to the mental disease or defect sought to be interposed, renders the timing of the within notice suspect. The within application is founded upon nothing more tangible than the conjecture of defense counsel. The arguments advanced are general, non-specific contentions, served up by defense counsel without one shred of foundation or documented proof, or any specificity - the very type of arguments which could be set forth in any case in support of an application to offer such evidence at the eleventh hour.

As to the notice, the Court finds that it does minimally specify one of the categories pursuant to C.P.L. 250.10(1) upon which psychiatric evidence may be proffered by stating, that Athe Defendant intends to present evidence at trial sufficient to establish the defense of lack of criminal responsibility by reason of mental disease or defect@, without further elaboration. As the Court of Appeals stated in People v. Almonor, 93 N.Y.2d 571, 581 [1999]:

The governing principle is that CPL 250.10 requires that defense furnish timely notice of the CPL 250.10(1) category or categories on which it intends to rely. The statute also contemplates that the notice 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.

However, it does not comport with the requirement that it 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 proffered defense. Even were this Court to overlook the timeliness and vagueness issues in the interest of justice, the aforementioned application fails to identify the nature of the alleged psychiatric defect and its relationship to a proffered defense, and offers nothing more tangible than the vague allegation that the Ainsanity defense may well apply.@ (Affirmation of John Broderick, at P. 2).

While the defense protests that the statute in question imposes a burden that he contends no defense counsel can meet, it is not this Court's function to judicially legislate, or to supercede the legislature's purpose in imposing the timeliness requirement. Moreover, the Court of Appeals has stated that, in situations in which the defense may be unable to make an early determination as to the viability of a particular psychiatric defense and its psychiatric basis, there is nothing in the statute prohibiting amendment of said notice. (People v. Almonor, supra at 582).

The Court is extremely sensitive to the defendant's right to interpose every available defense, but is loathe to sanction dilatory tactics meant to delay trials of matters that have been pending and trial-ready since June 30, 1999. As the Court of Appeals stated in People v. Berk, 88 N.Y.2d 257, 266 [1996]

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 right against the resultant prejudice to the People from the belated notice.

In attempting to strike the requisite balance in the instant matter, this Court holds as follows. Defense counsel is directed to arrange for the examination of the defendant with regard to the psychiatric defense of which he is seeking to proffer evidence and to make any amendments of the C.P.L. 250.10 notice he deems necessary within thirty (30) days of the date of this decision. Failure to comply in a timely fashion will result in preclusion of said evidence. Defense counsel shall provide the prosecution with a copy of the report of said examination pursuant to C.P.L. 240.30(1)(a). The prosecution will then have an opportunity to conduct their own pretrial examination of the defendant by a psychiatrist or psychologist designated by them pursuant to C.P.L. 250.10(3).

Order entered accordingly.

The Clerk of the Court is directed to forward a copy of this memorandum and order to the attorney for the defendant and to the District Attorney.

Date: October 5, 1999

ROGER N. ROSENGARTEN

J.S.C.