Defendant James Phillips, who suffers from transcortical motor aphasia, was convicted on October 10, 2006 after trial by jury of attempted murder in the second degree and other crimes. Prior to sentence, he moved to set aside the verdict and for a new trial pursuant to People v. Francabandera, 33 NY2d 429 (1974), Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968), and in accordance with this court's pre-trial Order on Trial Accommodations dated August 25, 2006 (accommodations order), granting a Francabandera/Wilson post-trial review of the record to determine whether, under the circumstances here present, the defendant's health condition prevented him from performing the functions essential to a fair proceeding. Having conducted that review, I find that the defendant received a fair trial and deny his motion for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 22, 2004, defendant followed his estranged wife into the lobby of her building and stabbed her multiple times, inflicting wounds to her abdomen, arm and breast. She survived the attack after undergoing surgery at Harlem Hospital. Defendant left the building immediately after the attack, but he was apprehended on the street a short time later.

Defendant was indicted and charged with attempted murder in the second degree (PL §§110/125.25[1]); assault in the first degree (PL §120.10[1]); aggravated criminal contempt (PL §215.25)(two counts); criminal contempt in the first degree (PL §215.51[b][v]) (two counts); criminal possession of a weapon in the third degree (PL §265.02[1])(two counts); and menacing in the third degree (PL §120.15). On November 3, 2004, at his arraignment on the indictment, defendant was ordered examined pursuant to CPL §730.30(1) at the request of his counsel, who felt that defendant might be an incapacitated person within the meaning of the statute. He was subsequently examined [*2]by two psychiatric examiners, who found him not fit to proceed to trial. On January 14, 2005, another justice of this court adjudicated the defendant unfit to proceed and remanded him to the custody of the Commissioner of the Office of Mental Hygiene pursuant to CPL §730.50(1).

After several months of treatment at the Kirby Forensic Psychiatric Center (Kirby), defendant was declared fit to proceed and returned to the custody of the New York City Commissioner of Correction at Riker's Island on September 21, 2005. Defense counsel then moved to controvert that finding. A hearing was ordered pursuant to CPL §730.60(2) to determine whether defendant was competent to stand trial. The matter was referred to this court, which conducted an extensive hearing at which both sides presented expert testimony.

The evidence at the hearing^[FN1] revealed that defendant is sixty years of age, with at least an eleven-year history of strokes. As a consequence, he has been diagnosed with transcortical motor aphasia, a relatively rare condition, and suffers from observable speech and motor impairments. He also suffers from cognitive deficits, which stem from the organic brain damage he suffered as a result of the strokes, which produced vascular lesions and tissue loss primarily to the right hemisphere of the brain. Defendant does not now suffer from dementia, and although he stammers and at times has difficulty expressing himself verbally, he is not mute. His condition will not improve, and is likely to further deteriorate over time. Additionally, defendant is functionally illiterate, possessing minimal abilities to read or write. Finally, the parties agreed that his medical condition, which also includes high blood pressure and cardiac disease as well as the history of infarctions, would make it difficult for him to testify at trial. The principal issue raised during the hearing was that of how the defendant's language deficits would affect his comprehension, and whether defendant was sufficiently able to perceive and relate during the trial to consult with his counsel with the reasonable degree of rational understanding needed to assure that he received the due process of law.

On August 17, 2006, this court found defendant fit to proceed. Because of defendant's physical limitations, however, the court expressed its concern that his condition might prevent him from receiving a fair trial, and it sought input from both sides concerning possible accommodations to ensure fairness. On August 25, 2006, this court issued its accommodations order, announcing eleven procedures it intended to employ at trial to accommodate defendant's health conditions, [*3]especially his transcortical motor aphasia.^[FN2] Adopting by analogy [*4]the holdings of Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968), and People v. Francabandera, 33 NY2d 429 (1974), which address the ability of a defendant suffering from retrograde amnesia to receive a fair trial, and over the objection of both parties, the court also determined that in the event of a conviction, it would examine the record of the trial to determine whether or not the defendant had received a fair trial, in light of his disabilities. (Accommodations order, at 2).

The trial commenced on September 6, 2006 and on October 10, 2006 concluded with defendant's conviction on all nine counts submitted to the jury, with the court utilizing as many of the accommodations as were necessary.^[FN3] On November 17, 2006, defendant filed a Memorandum of Law In Support of a New Trial Pursuant to Wilson/Francabandera ("Def. Post-trial Memo"), and on December 12, 2006, the People filed their Response to Defendant's Post-trial Memorandum of Law ("Peo. Resp.") in opposition. Having examined the entire record of proceedings in the case and having reviewed the parties' submissions, I reach the following conclusions.

II.THE WILSON AND FRANCABANDERA STANDARD

In Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968), the court was confronted with the claim of an amnesiac defendant that his loss of memory about the alleged crime had deprived him of the fair trial to which he was constitutionally entitled. In Wilson, the federal Court of Appeals for the District of Columbia Circuit acknowledged that for a trial to meet Fifth and Sixth Amendment standards, "[t]he accused must be able to perform the functions which are essential to the fairness and accuracy of a criminal proceeding.'" (Id., at 463)(citation omitted). The court there crafted an approach to assuring that result, employing the "case by case" approach which had been used by the trial court. The court held that where questions exist, in addition to a finding of fitness at a pretrial competency hearing, the trial court must make a post-conviction determination whether the defendant has, in fact, been able to perform those functions. The court then listed six factors to be considered in conducting this post-trial examination:

(1) The extent to which the amnesia affected the defendant's ability to consult with and assist his lawyer. (2) The extent to which the amnesia affected the defendant's ability to testify in his own behalf. (3) The extent to which the evidence in suit could be extrinsically reconstructed in [*5]view of the defendant's amnesia. Such evidence would include evidence relating to the crime itself as well as any reasonably possible alibi. (4) The extent to which the Government assisted the defendant and his counsel in that reconstruction. (5) The strength of the prosecution's case. Most important here will be whether the Government's case is such as to negate all reasonable hypotheses of innocence. If there is any substantial possibility that the accused could, but for his amnesia, establish an alibi or other defense, it should be presumed that he would have been able to do so. (6) Any other facts and circumstances which would indicate whether or not the defendant had a fair trial.

The Circuit Court in Wilson directed the trial court to make detailed written findings of fact and then to "make a judgment whether, under applicable principles of due process, the conviction should stand." (Id., at 464)(footnote omitted).

The New York Court of Appeals adopted the Wilson analysis for determining compliance with constitutional due process and right to counsel standards in People v. Francabandera, 33 NY2d 429 (1974). There the Court held that a CPL §730 proceeding was the appropriate pretrial procedure for determining whether a defendant suffering from retrograde amnesia could conceivably receive a fair trial, and that following a conviction, the trial court should employ the Wilson criteria to determine whether in fact the defendant received a fair trial.

After close review of the voluminous medical evidence of defendant Phillips' condition, and after much consideration, this court determined that the Wilson/Francabandera standard applicable to amnesiac defendants should also apply in defendant's case. It is agreed that James Phillips is not an amnesiac. Neither does he suffer from mental illness, the more typical reason for examining a defendant's competency. Phillips has sustained a brain injury which causes him to suffer from an expressive aphasia. Nonetheless, the limitations imposed upon him by his physical condition are analogous to those suffered by victims of amnesia: they inhibit his ability to communicate his recollections of the events in question, raising a potential impediment to his rights to due process of law and the effective assistance of counsel. Under the circumstances, a Wilson/Francabandera evaluation of the fairness of defendant's trial is appropriate.

III.THE PARTIES' CONTENTIONS ON THIS MOTION

In support of its motion for a new trial pursuant to Wilson/Francabandera, the defense has reiterated its objection to this procedure, arguing that "no accommodation could restore Mr. Phillips to fitness, nor could there be a trial consistent with fundamental Constitutional principles." (Def. Post-trial Memo, at 3). The defense concedes that in response to the court's request it sought the accommodation of a reduced schedule, with four days per week on trial and half days in court. Those accommodations were among those ordered by the court, but defense counsel insists that her attempts to communicate with her client during the additional time afforded by the reduced schedule "failed completely." (Def. Post-trial Memo, at 4).

Defense also claims that the six Wilson/Francabandera factors are inapposite to this case, and that their application to defendant's case could only detract from a "meaningful review of the fundamental fairness" of defendant's trial. (Id.). Defense counsel also insists that such unrequested accommodations as additional discovery ignore "the needs of an individual with [*6]permanent and irreversible brain damage." (Id., at 7). She then contends that defendant provided no assistance in establishing the affirmative defense of mental defect.

Finally, defense counsel claims that although defendant testified on his own behalf at the competency hearing he was too "mentally absent" to testify at trial. She also says that he was obsessed by two issues raised during the trial. He was upset to the point of tears by the testimony of the defense expert that described in detail the physical damage inflicted on his brain by the stokes, and he was angry at police for giving testimony he considered to be untruthful.The People claim that defendant was competent to stand trial, and that the trial he received was fair. They claim that the competency of the defendants in Wilson and Francabandera was dependant upon the success of the accommodations afforded them, whereas defendant's competency was not. Nevertheless, they argue that the court's accommodations, while unnecessary for the defendant's competency, were properly implemented, and that they accomplished their goal of ensuring that defendant received a fair trial. Finally, the People insist that defendant's mens rea was established not simply by the nature of the crime itself, but also by the violence which preceded the crime, the apparent planning that accompanied the attack, defendant's actions after the attack, and his statement in the hospital that he was sorry for his actions.

IV. FINDINGS AND CONCLUSIONS

A. Burden of Proof

Although neither the Wilson nor the Francabandera Courts made clear which party was to bear the burden of proof on this post-trial motion, it seems beyond question to this court that the defendant must bear the burden of demonstrating that his rights were abridged. Not only is there language in both decisions to suggest such a result (Wilson, supra, 391 F.2d at 465["I don't think appellant has shown that his constitutional rights have been violated."] [Leventhal, C.J., concurring]; Francabandera, supra, 33 NY2d at 438["There is in this case, then, no indication that defendant was deprived of any of his constitutional rights . . ."]), but it is clear that under the parallel provisions of New York criminal practice, it is the movant on a post-conviction CPL §330.30(1) motion who bears the burden of demonstrating by a preponderance of the evidence that the motion to set aside the verdict should be granted. (CPL §330.40[2][g]). In addition, because a presumption of regularity attaches to judicial proceedings (see People v. Velasquez, 1 NY3d 44, 48 [2003]), a defendant seeking to establish impropriety in an apparently unexceptionable trial must come forward with substantial evidence to overcome that presumption. (People v. Harris, 61 NY2d 9, 16 [1983]).

B. Application of Wilson/Francabandera Factors

An analysis of this case using the Wilson/Francabandera rubric, modified as necessary for defendant's case, follows.

(1) The extent to which the aphasia affected thedefendant's ability to consult with and assisthis lawyer

Throughout the trial, defendant Phillips consulted with

his two defense attorneys, both during the proceedings and

between sessions of the trial. Although communications may [*7]

have been difficult, the court provided the defense with the

opportunity to consult when requested during the trial, as

well as all day on Mondays, when trial was not generally

held, and for the entire afternoon after each day's court session had ended at 1:00 p.m. Tuesdays through Fridays. That defendant availed himself of these opportunities is clear from the representations made by counsel during the trial (e.g., Tr., at 702 [counsel confers with defendant and informs court that defense consents to excusing a juror]; Tr., at 1057, 1195 [counsel represents that defense attorneys have spoken with and defendant "at length" and "many times" about his right to testify and that "he does not wish to testify"]; Tr., at 867-868 [defendant crying; counsel confers with him and then announces that he is ready to proceed]; Tr., at 765-66 [[same]).

In addition, defendant expressed his reaction to the

evidence on more than one occasion. Defendant complained

that the police witnesses were lying (e.g., Tr., at 1055, 1270) and became upset because he believed that the People's

photographic evidence was inaccurate (Tr., at 556, 1270). He reacted with profound sadness to certain of the evidence,

including his own expert's testimony that his brain tissue

had "died" (Tr., at 766, 790, 1050) and made other comments

to his attorneys about the evidence (e.g., Tr., at 1049).

Defendant also engaged in colloquy with the court on numerous occasions, both about his own health and about the evidence, clearly evincing an ability to comprehend the proceedings, acknowledge their import and communicate about them. (Tr., at 229-30, 369, 535, 536, 540, 560-61, 564, 566, 567-76, 674-80, 802-03, 1051, 1187). For example, during discussions about whether he would testify in his own defense, upon Ms. Chandler's representation that she would bring out the errors in the prosecution's evidence in her summation obviating the need for defendant to testify, Mr. Phillips nodded his head in agreement with the court's suggestion that he had a good lawyer. He also responded, "No," when asked by the court whether he wished to testify. (Tr., at 1195-96).

During the testimony of Police Officer Edgar Ciar, defendant became excited and told his counsel that the blood spattering in the photographs introduced through Ciar's testimony misrepresented the blood at the scene and amounted to a frame-up by the police. Once Ciar concluded his direct testimony, defendant said loudly, "All lies." Defendant on more than one occasion also accused the prosecutor of lying, and the court of secretly meeting in the hallway with a prosecution witness. These behaviors are no different from those adopted by many defendants who disagree with the prosecution's evidence and believe that the justice system is weighted against them. No one has diagnosed defendant as suffering from delusions or paranoia.

This court frequently observed the defendant speaking privately to one or both of his lawyers at various times throughout the proceedings. Further, defendant was always able to respond to the court's inquiries about how he was feeling, whether he had received his medications and whether he wished to see a doctor. At one point, during the direct examination of the defense expert witness, Katherine Henry, M.D., Ms. Chandler inadvertently referred to [*8]defendant as "Mr. Henry," causing defendant to smile.

The defense argues that defendant demonstrated a lack of comprehension and that his rights to due process were violated due to his inability to allocute to a 1989 conviction upon which the People relied to enhance the misdemeanor weapons charges to felony status (PL §265.02[1]; see CPL §200.60[3]).^[FN4] In fact, however, during a colloquy with the court and counsel, defendant expressed reluctance to concede the conviction based on his insistence that he had not been guilty of the earlier charge, that it had been dismissed, that it had occurred long ago, at a time when he was using drugs, and that the crime had been committed by a co-defendant. (Tr., at 688-99). These comments demonstrated defendant's comprehension of the discussion of the prior crime itself, and, at the very least, raise the possibility that his unwillingness to admit the conviction stemmed more from his discomfort with a perceived miscarriage of justice than from a lack of understanding of the issues involved.

In sum, defendant was able to communicate with his counsel and the court and expressed his views on the evidence and on the defense strategy throughout the case.

(2) The extent to which the aphasia affected thedefendant's ability to testify in his ownbehalf

Although defendant decided not to testify at trial, that determination was made after extensive discussions with his counsel. Moreover, the defense advanced by defendant here, of lack of responsibility by reason of mental defect, is not one normally accompanied by a defendant's testimony.

(3) The extent to which the evidence could beextrinsically reconstructed, includingevidence both relating to the crime itself aswell as any reasonably possible defense

The attack which gave rise to most of the charges in the indictment was observed by two eyewitnesses and was recorded by a video camera installed in the lobby in which the attack occurred. The People's evidence was made available to the defense prior to trial, so that it was possible to extrinsically reconstruct events relating to the crimes. In addition, all of the expert medical and psychological testimony upon which each side relied was fully revealed in the course of an extended pre-trial competency hearing.

(4) The extent to which the Government assistedthe defendant and his counsel in thatreconstruction

All of the evidence in the People's case was fully disclosed to the defense well in advance of trial. Much of this disclosure occurred even before the court ordered expanded discovery as part of its accommodations order. Following that order the People provided additional discovery sufficiently in advance of trial for the defense to investigate and, if possible, counter the People's [*9]evidence. Defendant personally viewed the videotape of the stabbing months prior to the trial.

(5) The strength of the prosecution's case, andwhether there is any substantial possibilitythat the accused could, but for his aphasia,establish an alibi or other defense

The People's case was virtually overwhelming in the strength of its witnesses and supporting physical evidence, including a videotape of the entire stabbing incident. That tape would have made such defenses as alibi and identification impossible, irrespective of defendant's aphasia. It also undermined any justification defense.^[FN5] In fact, aphasia provided the basis for the only viable defense in this case, lack of responsibility by reason of mental defect.

(6) Any other facts and circumstances which would indicate whether or not the defendant had afair trial.

The court was fully aware of the effects of defendant's transcortical motor aphasia when it issued its accommodations order. That order gave the defense additional non-mandated disclosure prior to trial, and authorized a trial schedule which considered all of defendant's physical limitations. Virtually every defense request for additional time or information was granted, and the defense of lack of responsibility was completely presented, notwithstanding vigorous prosecution objections. Defendant's aphasia did not contribute in any way to the jury's determination that his guilt of the charges in the indictment had been established beyond a reasonable doubt.

Accordingly, I find that defendant has failed to meet his burden of demonstrating that his condition prevented him from receiving a fair trial.

V.CONCLUSION

The accommodations order issued in this case mandated a Wilson/Francabandera fair-trial assessment after trial. The court has carefully considered all of the factors in such an assessment, and concludes that defendant's trial was fair, and that he received effective assistance of counsel. Accordingly, defendant's motion to set aside the verdict in this case is denied, and the matter will proceed to sentence.

The foregoing constitutes the decision and order of this court.

Marcy L. Kahn, J.S.C. [*10]

Dated: New York, New York

January 18, 2007