Upon the following papers numbered 1 to 4 read on this motion regarding a CPL § 250.10 notice

ORDERED that the motion is determined in the following manner. The threshold issue is how to characterize the submissions of the parties. When a notice of intent to proffer psychiatric evidence has not been served and filed in timely fashion, it may not be filed at all without permission of the court "[i]n the interest of justice and for good cause shown" (CPL § 250.10(2)). Defendant, having failed to file a notice in timely fashion, ignored this requirement to obtain court permission and instead filed a notice, in response to which the [*2]People have filed an affidavit in opposition. The court treats the submissions of the parties as a motion to determine whether the notice should be vacated. In making its determination, it will apply the criteria it would have applied had defendant followed proper procedure and sought permission to file his notice late.

To establish good cause, a defendant must give an acceptable excuse for the delay and must show the defense to be asserted has merit. "The notice must also provide 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, proferred defense'" (People v. Rizzo, 267 Ad2d 1041, 1042 [4th Dept 1999][quoting People v. Almonor, 93 NY2d 571, 581]).

The defense has shown an acceptable excuse for its failure to serve and file the notice in timely fashion. However, the notice itself is inadequate. It reads, in pertinent part, "Pursuant to CPL Section 250.10, the defense serves notice of our intent to offer psychiatric evidence of mental disease or defect in the above captioned matter." In her response to the People's affidavit opposing the late notice, counsel avers only that defendant has been going to the outpatient behavioral health clinic of a hospital health center, that he is on prescription medication, and that counsel served the notice after she had reviewed defendant's mental health records. Neither the notice itself nor counsel's response to the People's opposition contains any indication whether defendant is relying on CPL § 250.10(1)(a) or CPL § 250.10(1)(c), any indication of the psychiatric malady involved to enable the People to prepare to meet defendant's evidence, and any indication of the defense in support of which the evidence will be offered.

Consequently, the notice is vacated, without prejudice to defendant serving and filing an adequate notice no later than at the call of the calendar on the new court date set out below.