Supreme Court, Erie County, February 14, 2023

John J. Flynn, District Attorney (Harmony A. Healy of counsel), for the People.

Alexandra Harrington for defendant.

The defendant has filed a motion pursuant to CPL 440.47 seeking resentencing under the Domestic Violence Survivors Justice Act. The defendant met their initial threshold under CPL 440.47 (1) (a). After submissions by both parties, a hearing was scheduled for January 24, 2023. The People submitted an order to show cause and supporting affidavit dated January 6, 2023, requesting the defendant submit to a psychiatric examination by the People's expert and granting the People access to the defendant's mental health and medical records. The defendant has opposed the People's motion. The parties appeared before the court on January 12, 2023, for oral arguments.

The first issue before the court is whether the defendant must submit to a psychiatric exam by the People's expert. Unfortunately, Criminal Procedure Law § 440.47 fails to address this, among many, potential issues.

Under CPL 440.47 (2) (e),

"(T)he court shall conduct a hearing to aid in making its [*2]determination of whether the applicant should be resentenced in accordance with section 60.12 of the penal law. At such hearing the court shall determine any controverted issue of fact relevant to the issue of sentencing. Reliable hearsay shall be admissible at such hearings."

Ultimately, CPL 440.47 provides the court with broad discretion on what evidence will be admissible and considered at the hearing.

The defendant correctly points out that this is not a trial. However, every stage of the criminal process requires a level of fairness. "The court found, however, that it would not be fair to permit the defendant to introduce expert testimony concerning his memory while he refused to allow the People an opportunity to conduct a psychiatric exam to test the validity of his experts' opinions." (People v Segal, 54 NY2d 58, 64 [1981].) Further, "In Lee it was noted that the prosecutor's right to examine the defendant although recognized by statute was also, and more broadly, based on principles of fairness and the integrity of the trial process." (Id. at 65.) Finally,

"However, it was in accord with the rule in several{**78 Misc 3d at 753} other jurisdictions where it was considered a necessary exercise of the court's inherent power to insure fairness and to preserve the integrity of the fact-finding process even when, as in the Federal courts, the defense was not statutory and there was an absence of legislative authority for a court-ordered examination of the defendant (see, e.g., United States v Albright, 388 F2d 719; United States v Baird, 414 F2d 700; see, also, Federal Rules of Criminal Procedure, rule 12.2, eff Dec. 1975.)" (Id.)

As the court has wide discretion on what evidence to allow and consider at the CPL 440.47 hearing, it would be most beneficial for the court to hear from both the defendant and People on a psychiatric issue. The court, then, will grant the People's request for their psychiatric expert to examine the defendant prior to the hearing.

The request for the defendant's completed medical and mental health records, however, is overbroad. From the defendant's submissions and attached expert opinion report, there does not seem to be any indication the defense expert relied on the defendant's prior medical or mental health records. Any records that were used to form the expert opinion would be relevant, but that does not appear to be the case.

Therefore, the People's motion ordering the defendant to submit to an examination by the People's expert is granted and further, the People's motion seeking the defendant's medical and mental health records (unless offered by the defendant) is denied.