By notice, dated April 7, 2010 and made pursuant to CPL §250.10(1)( c ), the defendant notified the People of his intention to proffer psychiatric evidence at trial. More specifically, the defendant intends to offer evidence of mental illness to demonstrate that he could not have formed the requisite intent to commit either Robbery in the First Degree or Robbery in the Second Degree, the two crimes for which he was indicted. By affirmation, dated July 14, 2010, the People have moved to preclude the defendant from proffering psychiatric evidence at trial because the subject CPL §250.10 (1) ( c ) notice was (a) untimely and (b) insufficient.

CPL § 250.10 (2) provides that notice must be served and filed before trial and not more than thirty days after entry of the plea of not guilty to the indictment. Here, the defendant was arraigned upon the indictment and entered his not guilty plea on June 17, 2009. While the notice was concededly untimely, CPL § 250.10(2) authorizes a court to allow service and filing of the notice at any later time prior to the close of the evidence, "in the interest of justice and for good cause shown."

After "weighing . . . the defendant's constitutional right to present witnesses in his own behalf (here, Marc Janoson, Ph.D.) . . . against the resultant prejudice to the People from the [*2]belated notice . . . the Court, in the interest of justice, elects not to impose the extreme sanction of preclusion of psychiatric evidence (People v Berk, 88 NY2d 257, 266). While the People are correct that, in general, it is preferable to have a defendant examined by their own experts within a sufficiently close temporal period to the commission of the crime, the forensic report prepared by Dr. Janoson and served upon the People on May 10, 2010, concludes that the defendant has had "a long history of psychiatric hospitalizations" and "a long history of hearing voices with malignant content." Therefore, the mental illness which the defendant appears to be suffering from and which is categorized as "psychotic" in the report, existed long before the defendant's alleged commission of the crimes herein and continues to this date. Consequently, the People will not be unduly prejudiced by virtue of an examination of the defendant approximately 20 months after the commission of the crimes.^[FN1]

So too, the Court finds that counsel for the defendant has demonstrated good cause for the late service of notice to the People. Initially, it must be noted that counsel was not assigned to represent the defendant until August 13, 2009, just four days prior to the expiration of the 30 day window to serve and file the notice. The examination and testing of the defendant was commenced on July 31, 2009 and did not conclude until September 1, 2009. The forensic report, dated September 15, 2009 was not issued to counsel until September 19, 2009. Thereafter, counsel consulted with Dr. Janoson, the defendant's family and other mental health professionals. A Huntley/Wade hearing was held on January 26, 2010 which, according to counsel's affirmation in opposition to the People's motion to preclude, "further solidified my belief that defendant's mental state at the time of the crime prevented him from forming the intent to commit the crime, and that it was incumbent upon me as defendant's attorney to present psychiatric evidence at trial "(see, Berliner Affirmation, pg. 2, lines 7-9, August 22, 2010).

On April 7, 2010 the notice was served and filed and on April 8, 2010, counsel represented to the KTRP court that she had, in fact, served notice pursuant to CPL § 250.10(1) ( c ). A copy of Dr. Janoson's 7 page report was mailed to the People on May 10, 2010. On May 12, 2010, the matter was adjourned to June 9, 2010 and then to July 13, 2010 to allow the People time to take the necessary steps to have the defendant evaluated by one of their experts. Instead, on July 13, 2010 the People moved to preclude the defendant from proffering psychiatric testimony.

The Court finds that, while in hindsight counsel for the defendant could have proceeded in a more expeditious manner, under all of the circumstances herein the defendant has demonstrated "an explanation for the delay" (see, People v Brown, 4 AD3d 886, lv to appeal denied 3 NY3d 637) sufficient to establish good cause for the delay.

Finally, the court finds that the notice served upon the People, as amended by the forensic report, was legally sufficient to satisfy the requirements of CPL § 250.10(2).

Accordingly, the People's motion to preclude is denied.

Should the People wish to have the defendant examined by a psychiatrist or licensed psychologist, they are directed to apply to this Court, upon notice to the defendant, for an order directing said examination, on or before November 1, 2010.

The foregoing constitutes the opinion and decision of the Court.

Order signed herewith.

The Clerk is directed to forward copies of this memorandum decision and the [*3]accompanying order to the People and to the attorney for the defendant.

_____________________________

Robert Charles Kohm

J.S.C.