Lee v. County Court of Erie County

• Court: New York Court of Appeals
• Writing for the Court: SCILEPPI; FULD; BREITEL; BERGAN, JASEN and GIBSON, JJ., concur with SCILEPPI; FULD, C. J., dissents in part and votes to modify as stated in an opinion in which BURKE; BREITEL
• Citation: 27 N.Y.2d 432,318 N.Y.S.2d 705,267 N.E.2d 452
• Decision Date: 14 January 1971
• Parties: , 267 N.E.2d 452 In the Matter of Rufus LEE, Respondent-Appellant, v. COUNTY COURT OF ERIE COUNTY et al., Appellants-Respondents.

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318 N.Y.S.2d 705 27 N.Y.2d 432, 267 N.E.2d 452 In the Matter of Rufus LEE, Respondent-Appellant,
v.
COUNTY COURT OF ERIE COUNTY et al., Appellants-Respondents. Court of Appeals of New York. Jan. 14, 1971.

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[27 N.Y.2d 434] [267 N.E.2d 453] Michael F. Dillon, Dist. Atty. (Peter J. Notaro, Buffalo, of counsel), for appellants-respondents.

Paul Ivan Birzon, Buffalo, for respondent-appellant.

[27 N.Y.2d 435] SCILEPPI, Judge.

We have been called upon to decide questions relating to the effect of a plea of not guilty by reason of insanity on a defendant's constitutional rights.

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In 1964, Rufus Lee, petitioner herein, was indicted for the murder of two women which occurred on November 5, 1964, two days after his release from a mental institution. In February, 1965, a psychiatric examination was ordered by a County Court Judge pursuant to section 658 of the Code of Criminal Procedure and Lee, thereafter, on July 30, 1965, pleaded not guilty by reason of insanity. Prior to the trial, the court found that Lee was competent to stand trial. ¹ At the trial in December, 1965, the two court-appointed psychiatrists testified on Lee's behalf that, on the basis of the above referred to examination and a latter one shortly before trial, he suffered from a 'schizophrenic psychosis, paranoid type' and that as a result of this mental disease or defect, Lee lacked substantial capacity to know or appreciate either the nature or consequences of his conduct or that it was wrong. This testimony was corroborated by a third psychiatrist who had also examined Lee prior to trial. However, these physicians also admitted that it was possible for such a person to act rationally at times. In addition, the People called a psychiatrist who testified that on the basis of an examination of Lee's hospital records, Lee was sane. The jury found the defendant guilty, but on appeal, the Appellate Division in February, 1968, ordered a new trial on the ground that the People had not proven sanity beyond a reasonable doubt and for the further reason that the verdict was against the weight of the evidence (29 A.D.2d 837, 287 N.Y.S.2d 607). ² Lee again pleaded not guilty by reason of insanity and in preparation for the new trial, the District Attorney's motion for a mental examination was granted by the County Court in February, 1969. Defendant, asserting his privilege against self incrimination, refused to submit to the examination and was found in contempt of court. The Appellate Division reversed the contempt order [32 A.D.2d 885, 302 N.Y.S.2d 171] and the County Court once again granted the District Attorney's application for an [27 N.Y.2d 436] examination to be held on September 19, 1969. This order provided that defense counsel and an assistant district attorney could be present at such examination and further directed that:

'Defendant, or defendant's attorney, shall note his objections for the record and [267 N.E.2d 454] such objection shall be passed upon by the Trial Court prior to the trial of this indictment; and it is, further

'Ordered, that in the event that this defendant shall refuse to answer questions deemed pertinent by the designated psychiatrists, then this Court will entertain a motion by the People of the State of New York

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to strike defendant's defense of insanity and deny the defendant the right to call psychiatric witnesses in his behalf'.

On the advice of counsel, petitioner refused to answer questions concerning his behavior on the day of the crime and those relating to his conduct in October, August and July of 1964. Absent defendant's answers to their questions, the psychiatrists were unable to proffer an opinion as to Lee's capacity to commit the crime ³ and on motion of the District Attorney, the County Court ordered that Lee's plea of not guilty by reason of insanity be stricken; that he be precluded from offering psychiatric evidence on his behalf; and that the matter proceed to trial. Lee, thereupon commenced in the Appellate Division, the instant article 78 proceeding in the nature of prohibition seeking an order preventing the trial court from striking his insanity defense and from directing that he proceed to trial without being able to present evidence of his insanity. The Appellate Division vacated the order striking the defense, but directed that Lee submit to another mental examination without the presence of nonmedical personnel and the matter is here on cross appeals from the Appellate Division order.

The threshold question presented is whether an article 78 proceeding in the nature of prohibition is an appropriate vehicle to raise the questions presented herein. Although the use of the writ of prohibition has usually been limited to cases where a court acts without jurisdiction (see, e. g. Matter of Hogan v. [27 N.Y.2d 437] Culkin, 18 N.Y.2d 330, 335-336, 274 N.Y.S.2d 881, 885-886, 221 N.E.2d 546, 549-550; People ex rel. Lemon v. Supreme Ct., 245 N.Y. 24, 156 N.E.2d 84; People ex rel. Safford v. Surrogate's Ct., 229 N.Y. 495, 128 N.E. 890), it is equally true that 'function of the writ * * * [is] not merely to restrain an unwarranted assumption of jurisdiction, but also to restrain an inferior court from exceeding its authorized powers in a proceeding over which it has jurisdiction.' (Matter of Hogan v. Court of Gen. Sessions, 296 N.Y. 1, 8, 68 N.E.2d 849, 852; see, also, People ex rel. Jerome v. Court of Gen. Sessions, 185 N.Y. 504, 78 N.E. 149; Appo v. People, 20 N.Y. 531; CPLR 7802, subd. [a]). Additionally, in Matter of Culver Contr. Corp. v. Humphrey, 268 N.Y. 26, 39-40, 196 N.E. 627, 631) we said that the writ is an extraordinary remedy which 'does not issue where the grievance can be redressed by ordinary proceedings at law or in equity or merely to prevent error which may be readily corrected on appeal. (People ex rel. Mayor v. Nichols, 79 N.Y. 582; People ex rel. Hummel v. Trial Term, Part 1, 184 N.Y. 30, 76 N.E. 732; People ex rel. Livingston v. Wyatt, [186 N.Y. 383, 79 N.E. 330] supra; People

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ex rel. Childs v. Extraordinary Trial Term of Supreme Court, 228 N.Y. 463, 127 N.E. 486.) It is not available ordinarily as a method of premature appeal. Nevertheless, where the lower court is exceeding its jurisdiction and the writ or order furnishes a more effective remedy, it may be availed of although the error might be corrected by appeal.' In the instant case, the order striking the plea was clearly nonappealable to the Appellate Division; thus, if prohibition were not available to Lee, he would be forced to submit to trial without the benefit of his plea and if convicted raise his claim of privilege on his appeal from the judgment of conviction.

Although not all constitutional issues are cognizable by way of prohibition (see, e. [267 N.E.2d 455] g., Matter of Blake v. Hogan, 25 N.Y.2d 747, 303 N.Y.S.2d 505, 250 N.E.2d 568 [holding that the writ does not lie where the claim is a denial of the right to a speedy trial]; Matter of Kraemer v. County Ct., 6 N.Y.2d 363, 189 N.Y.S.2d 878, 160 N.E.2d 633 [holding that the issue of double jeopardy may be raised in a prohibition proceeding]; cf. People ex rel. Rohrlich v. Follette, 20 N.Y.2d 297, 282 N.Y.S.2d 729, 229 N.E.2d 419), it is our view that the question whether the court properly struck the plea under the circumstances presented herein is of such magnitude as to place this case within the ambit of the writ. Inasmuch as defendant contends that his privilege against self incrimination allowed him to refuse to co-operate at the [27 N.Y.2d 438] pretrial mental examination, a serious question as to whether the County Court's order striking the plea was in excess of its jurisdiction is presented and we reach the merits. In so holding, we adhere to the view expressed in prior decisions of this court that the remedy of prohibition is an extraordinary one which is only available in rare cases such as the one at bar.

Petitioner Lee argues that the privilege against self incrimination allows a defendant, who pleads not guilty by reason of insanity, to refuse to answer questions put to him by court-appointed psychiatrists during a pretrial mental examination and that the court improperly struck the plea when defendant relied upon his privilege. Thus, we are called upon to determine whether the privilege obtains at an examination pursuant to section 658 of the Code of Criminal Procedure and if so, whether it is waived when a defendant interposes the defense of insanity.

These are not questions which lend themselves to facile solutions. The People have a right to expect that criminal transgressors will be brought to justice. However, it is our concern with justice which mandates that constitutional rights be safeguarded and that procedures evolve which protect the interests of both society and defendants alike. Consequently, it is our view that the proper approach to the problem presented in the instant appeal is one of balancing these interests as suggested

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in United States v. Burr (Fed.Cas. No. 14692e [Vol. 25, p. 38; C.C.D. Va., 1807]) where Chief Justice John Marshall wrote (at pp. 39-40) that: '[w]hen two principles come in conflict with each other, the court must give them both a reasonable construction, so as to preserve them both to a reasonable extent. The principle which entitles the United States to the testimony of every citizen, and the principle by which every witness is privileged not to accuse himself, can neither of them be entirely disregarded.'

Traditionally, the privilege against self incrimination has been deemed to protect against so-called testimonial disclosures (8 Wigmore, Evidence, §§ 2263-2265). As Justice Holmes wrote: 'the prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may [27 N.Y.2d...