People v. Bey

• Decision Date: 15 November 1988
• Citation: 144 A.D.2d 972,534 N.Y.S.2d 275
• Parties: PEOPLE of the State of New York, Respondent, v. Claude Footman BEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 275

534 N.Y.S.2d 275

144 A.D.2d 972

PEOPLE of the State of New York, Respondent, v. Claude Footman BEY, Appellant.

Supreme Court, Appellate Division Fourth Department.

Nov. 15, 1988.

Edward J. Nowak by Peter Pullano, Rochester, for appellant.

Howard Relin by Robert Mastrocola, Rochester, for respondent.

Before DOERR, J.P., and DENMAN, GREEN, PINE and LAWTON, JJ.

MEMORANDUM:

In this consolidated appeal from a judgment of conviction and denial of defendant's posttrial motion (CPL 440.10), defendant contends that the court failed to follow CPL article 730 in determining defendant's competency to stand trial because one of his court-appointed examiners is not a "qualified psychiatrist" within the meaning of CPL 730.20(1). In support of his motion, defendant specifically contended that Dr. Reynolds is not a diplomate of the American board of psychiatry and neurology or eligible to be certified by that board (CPL 730.10[5][a] ). In response, the People contended that, although not a diplomate of the board, Dr. Reynolds possibly was "board eligible" in view of his extensive experience and qualifications in the field. The People further alleged that, when Dr. Reynolds graduated from medical school and completed his residency, there were no residency programs in psychiatry of the type later established as a criterion for board eligibility. It was suggested that Dr. Reynolds might be eligible for board certification on a "grandfather" basis without having to meet all applicable requirements, including the three-year residency requirement which Dr. Reynolds lacks. In denying defendant's 440 motion, the court summarily determined that Dr. Reynolds is a qualified psychiatrist but did not specifically address the People's contentions.

Since we are unable on this record to determine whether Dr. Reynolds is a qualified psychiatrist and since the issue of his qualifications is a recurring one (see, People v. Weech, 98 A.D.2d 952, 470 N.Y.S.2d 191, on appeal following remand 105 A.D.2d 1085, 482 N.Y.S.2d 174, 116 A.D.2d 975, 498 N.Y.S.2d 601 People v. Lowe, 109 A.D.2d 300, 491 N.Y.S.2d 529, lv. denied 67 N.Y.2d 653, 499 N.Y.S.2d 1049, 490 N.E.2d 566), we remit for a hearing to determine that question. The evidence at such hearing should include the testimony of a witness who is familiar with the board's eligibility requirements and its practice, if any, of certifying individuals who have not satisfied all eligibility requirements. Following such hearing, the court should determine whether, in view of his extensive credentials and the fact that his residency period predated the board's eligibility requirements, Dr. Reynolds is eligible to be certified by the board despite his inability to fulfill the residency requirement.

If it is determined by County Court that Dr. Reynolds is board eligible and thus a qualified psychiatrist within the meaning of CPL 730.10(5)(a), defendant's 440 motion should be denied. If it is determined that Dr. Reynolds is not board eligible, the court immediately should conduct a hearing to reconstruct defendant's mental capacity at the time of trial. Where a meaningful reconstruction hearing can be held, it is the proper remedy for violation of article 730 (see, People v. Armlin, 37 N.Y.2d 167, 371 N.Y.S.2d 691, 332 N.E.2d 870; People v. Wright, 105 A.D.2d 1088, 482 N.Y.S.2d 591, on appeal following remand 124 A.D.2d 1015, 508 N.Y.S.2d 1017 lv. denied 69 N.Y.2d 751, 512 N.Y.S.2d 1056, 505 N.E.2d 254; People v. Weech, supra ). The key factors in determining whether a meaningful reconstruction hearing can be held are the lapse of time since defendant's trial and the availability of expert and lay witnesses who can testify about...