People v. Atwood

• Decision Date: 17 October 1979
• Citation: 420 N.Y.S.2d 1002,101 Misc.2d 291
• Parties: The PEOPLE of the State of New York v. Douglas ATWOOD, Defendant.
• Court: New York Supreme Court

Page 1002

420 N.Y.S.2d 1002

101 Misc.2d 291

The PEOPLE of the State of New York v. Douglas ATWOOD, Defendant.

Supreme Court, Trial Term, New York County, Part 50.

Oct. 17, 1979.

Sterling Johnson, Jr., Special Asst. Dist. Atty., by Charles J. Heffernan, Jr., Asst. Dist. Atty., for the People.

Leon Polsky, The Legal Aid Society by Elliot Cook, New York City, for defendant.

HAROLD J. ROTHWAX, Judge:

The defendant is charged with the crime of murder in the second degree (Penal Law § 125.25). During the course of pretrial discussions the defendant's attorney advised the prosecutor and the court, though he was not obliged to do so, that the defendant intended, on the trial of the case, to rely on the affirmative defense that the defendant acted under the influence of extreme emotional disturbance (Penal Law § 125.25(1)(a)). The defendant's attorney further advised that, in order to carry the burden which such a defense imposes (see Penal Law § 25.00(2)), at least three, and possibly as many as six, psychiatrists would be called to testify on the defendant's behalf.

The prosecutor has now moved this court to direct the defendant to submit to examination by psychiatrists and/or psychologists to be engaged by the District Attorney. He also moves for ancillary relief, seeking the reports of the defense psychiatrists on whom the defendant will rely at the time of trial. The defense does not oppose the granting of this ancillary relief; indeed, the defense attorney urges that much of the material has already been provided and that the remainder will be provided shortly. The defendant further contends that the fact that these reports have been provided obviates the need for the defendant to submit to an examination to be conducted by a psychiatrist chosen by the prosecutor.

Apart from this contention, the defense opposes the prosecutor's motion on the following grounds:

1. The defense was not required by statute or decisional law to give notice that it intended to rely on the affirmative defense of extreme emotional disturbance;

2. That the cases relied upon by the People in support of their claim (People v. Patterson, 39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898; People v. Blanks, NYLJ, Sept. 14, 1977 (Sup.Ct., Westchester County)), either are not relevant to this issue (Patterson ) or are wrongly decided and not controlling (Blanks );

3. That the People may not properly rely on an analogy to the insanity defense (Penal Law § 30.05; see Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 318 N.Y.S.2d 705, 267 N.E.2d 452), because (a) such a defense requires the defendant to give notice to the People, which is not required of the defendant in this situation; and (b) the insanity defense requires the People to disprove the defense beyond a reasonable doubt, whereas the affirmative defense asserted here imposes no additional burden on the People; and

4. That granting the relief requested would infringe upon the defendant's right to remain silent and his privilege against self-incrimination.

I will deal with these contentions seriatim.

Although it is clear that the defendant was not required to give notice of his intent, he has, in fact, given such notice and he continues in his determination to rely on psychiatric testimony in support of the affirmative defense. The defendant is, of course, free to change his mind and were he to do so, either by relinquishing reliance on his psychiatrists or indicating that he would not employ the affirmative defense here in issue, the prosecutor would be unable to seek the examination or, if it had already been obtained, utilize it.

Statutes which require notice of alibi (CPL 250.20) or insanity (CPL 250.10) have been sustained as constitutionally valid (Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446; Wardlus v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82). They further the search for truth, reduce the role of surprise, and enhance the fairness of the adversary system. Such statutes only compel a defendant to accelerate the timing of his disclosure; they in no way dictate his choice of defense. As the U. S. Supreme Court held in Williams v. Florida, supra, 399 U.S. at 85, 90 S.Ct. at 1898:

. . . Nothing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State's case before announcing the nature of his defense, any more than it entitles him to await the jury's verdict on the State's case-in-chief before deciding whether or not to take the stand himself . . . We decline to hold that the privilege against compulsory self-incrimination guarantees the defendant the right to surprise the State with an alibi defense.

In some jurisdictions, the defendant must also furnish the prosecuting attorney with notice of other defenses (see, for example, Arizona Rules of Criminal Procedure, Rule 15.2(b), which requires the defendant to notify the prosecutor of All defenses as to which he will introduce evidence at trial, including, but not limited to, alibi, insanity self-defense, entrapment, impotency, marriage, insufficiency of a prior conviction, mistaken identity, and good character).

It is undoubtedly the case that notice was here volunteered because it was the fair thing to do. Since the notice has been given and since it is reliable and since it remains in effect, there is no good reason in law or logic why the prosecutor and the court may not rely upon it.

Indeed this court is of the belief that it has the inherent authority, consistent with constitutional constraints, to develop rules governing discovery, in the absence of express legislation authorizing or prohibiting such discovery, where the purpose and effect of those rules is to enhance the search for truth, to reduce the importance of secrecy and surprise, and to expedite and make more efficient pretrial procedures.

In short, then, the fact that the defendant was not required to give notice is not a basis for denying the motion.

The defendant also claims that the cases relied on by the prosecutor are not adequate for his purposes. It is clear that Patterson does not primarily, or even inferentially, focus on the discovery issue before the court. Patterson is only relevant for our purposes because the defendant relied on the affirmative defense of extreme emotional disturbance and utilized psychiatric...