People v. DelRio

• Decision Date: 17 June 1996
• Citation: 646 N.Y.S.2d 117,220 A.D.2d 122
• Parties: The PEOPLE, etc., Respondent, v. Humberto DelRIO, appellant.
• Court: New York Supreme Court — Appellate Division

Page 117

646 N.Y.S.2d 117

220 A.D.2d 122

The PEOPLE, etc., Respondent, v. Humberto DelRIO, appellant.

Supreme Court, Appellate Division Second Department.

June 17, 1996.

Robert C. Mitchell, Riverhead (Monroe A. Semble, of counsel), for appellant.

James M. Catterson, Jr., District Attorney, Riverhead (Karen Petterson, Susan Braitman Patricia Murphy, and Steven A. Hovani, of counsel), for respondent.

Before THOMPSON, J.P., and ALTMAN, GOLDSTEIN and McGINITY, JJ.

GOLDSTEIN, Justice

In the early morning of April 21, 1991, the defendant entered Big Barry's restaurant, and shot and killed his wife, her co-worker, and an off-duty Suffolk County police officer. He stands convicted of three counts of murder in the second degree.

On appeal, the defendant contends, inter alia, that the trial court erred when it directed him to submit to a psychiatric examination by an expert selected by the People to determine his competency to stand trial, when it refused to suppress certain evidence, and when it deprived the defendant of his right to be present during a portion of the voir dire. For the reasons that follow, we reject the defendant's contentions.

Pursuant to court order, on June 6, 1991, two psychiatrists conducted a joint examination of the defendant. Both psychiatrists concluded that the defendant suffered from schizophrenia, and was incompetent to stand trial, based, in part, upon information provided by the defendant, that he was committed to a psychiatric hospital in Cuba in the late 1970's.

On June 11, 1991, the People moved to controvert those findings, and by notice of motion dated June 24, 1991, moved to compel the defendant to submit to "a 730 examination by two psychiatrists chosen by the People". In his affidavit in support of the motion, the Assistant District Attorney noted that the defendant denied that he had psychiatric problems to the Immigration and Naturalization Service when he applied in 1985 for permanent residency in the United States, and did not reveal any psychiatric problems when questioned by the Probation Department during a preplea investigation. The defendant, in opposition, argued that the motion should be denied because CPL article 730 does not provide for an examination by psychiatrists chosen by the People.

The trial court granted the People's motion for an additional psychiatric examination of the defendant, to the extent of directing the defendant to submit to an examination by one psychiatrist of the People's choosing. The court noted that "the statute is silent", but since "the People have the burden of proof * * * by a preponderance of the evidence that the defendant has the mental capacity to stand trial" it would "be incongruous to put that burden on the People and deny them the opportunity to present experts of their own".

After a hearing, the trial court found, in a written decision, that the People, through the testimony of their expert, satisfied their burden of proof that the defendant was competent to stand trial. On appeal, the defendant contends that the trial court had no authority to direct a psychiatric examination of the defendant by a psychiatrist selected by the People.

CPL 730.30(2) and (3) provide that when the examination reports submitted to the court pursuant to CPL 730.20(5) are in agreement that the defendant is either competent or incompetent to stand trial, the court on its own motion may conduct a hearing on the defendant's competency and "must conduct [such a] hearing upon motion therefor by the defendant or by the district attorney". CPL 730.30(2) provides that if the examination reports submitted to the court show that each psychiatric examiner is of the opinion that the defendant is not an incapacitated person, but the court, after a hearing, is not so satisfied "it must issue a further order of examination directing that the defendant be examined by different psychiatric examiners designated by the director". ¹ However, where the examination reports are in agreement that the defendant is incompetent, no provision is made for any additional examination. Further, where the examination reports submitted to the court are not in agreement as to whether or not the defendant is an incapacitated person, the court is required to hold a hearing, but no provision is made for any additional examinations (see, CPL 730.30[4] ).

The general rule of statutory construction is where a statute is "clear and unambiguous, 'the court should construe it so as to give effect to the plain meaning of the words used' " (Matter of Auerbach v. Board of Educ., 86 N.Y.2d 198, 204, 630 N.Y.S.2d 698, 654 N.E.2d 972, quoting Patrolmen's Benevolent Assn. v. City of New York, 41 N.Y.2d 205, 208, 391 N.Y.S.2d 544, 359 N.E.2d 1338). However, judicial interpretation based upon legislative history and policy considerations is permissible where "literal construction would lead to absurd or unreasonable consequences that are contrary to the purpose of the enactment" (Matter of Auerbach v. Board of Educ., supra, 86 N.Y.2d at 204, 630 N.Y.S.2d 698, 654 N.E.2d 972; see, Matter of Ellington Constr. Corp. v. Zoning Bd. of Appeals of Inc. Vil. of New Hempstead, 77 N.Y.2d 114, 121, 564 N.Y.S.2d 1001, 566 N.E.2d 128).

CPL article 730, originally enacted in 1970 when the Criminal Procedure Law was first enacted to replace the Code of Criminal Procedure (L.1970, ch. 996), is not as comprehensive as it might first appear. It is silent on who bears the burden of proof at a competency hearing (see, People v. Veda, 73 Misc.2d 857, 342 N.Y.S.2d 693). Nevertheless, the courts have determined that the People are required to establish the defendant's competency by a preponderance of the evidence (see, People v. Santos, 43 A.D.2d 73, 349 N.Y.S.2d 439; see, People v. Christopher, 65 N.Y.2d 417, 424, 492 N.Y.S.2d 566, 482 N.E.2d 45). ² The burden of proof is not constitutionally mandated (see, Medina v. California, 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353), but is a creature of judicial construction.

In People v. Christopher, 101 A.D.2d 504, 519-520, 476 N.Y.S.2d 640, revd. 65 N.Y.2d 417, 492 N.Y.S.2d 566, 482 N.E.2d 45, the Appellate Division, Fourth Department, noted that "CPL article 730 does not specifically state what procedures are to be followed at a capacity hearing", and interpreted CPL 730.30(2) strictly, to permit a court to limit testimony at the hearing to the psychiatric examiners designated by the Director as defined in CPL 730.10(4).

The Court of Appeals reversed, holding that construction

"would be an absurd result. It would also be wholly inconsistent with the wording of the statute which provides in its first sentence that the court 'must conduct a hearing upon motion therefor by defendant' (emphasis supplied), and with the memorandum of the Senator who sponsored the 1981 amendment which added to CPL 730.60(2) the sentence quoted above. That memorandum stated flatly that: 'This bill ensures that the court, the district attorney and the defendant retain the right to contest the determination of the department.' (1981 NYLegisAnn, at 423, 424 [emphasis supplied]. To say that defendant is ensured the right to a hearing and to contest a psychiatric determination but may not present psychiatric testimony is a contradiction in terms" (People v. Christopher, 65 N.Y.2d 417, 424, 492 N.Y.S.2d 566, 482 N.E.2d 45 supra ).

The court also noted:

"It is, furthermore, the People's burden to establish defendant's competence to proceed (People v. Santos, 43 AD2d 73 ; see, People v. Silver, 33 NY2d 475 [354 N.Y.S.2d 915, 310 N.E.2d 520]. If the proof submitted through the Mid-Hudson psychiatrist be deemed sufficient to shift the burden of going forward on that issue to defendant, still as Chief Judge Cardozo (as he then was) observed in Matter of Reilly v. Berry (250 NY 456, 461 , 'a defendant may be at an unfair disadvantage if he is unable * * * to parry by his own witnesses the thrusts of those against him.' Nothing in the statutory reference to a 'hearing,' or in its provision for a hearing on the court's own motion, suggests that defendant was to be disadvantaged at that juncture by being denied the assistance of a psychiatrist. As we have noted in People v. Richetti (302 NY 290, 297 , 'A "hearing" of "trial" of * * * an issue of fact is an empty form unless it takes place * * * with the right, on each side, to examine and cross-examine' " (People v. Christopher, supra, at 424-425, 476 N.Y.S.2d 640).

Thus, the fact that the statute was silent on the defendant's right to the assistance of a psychiatrist did not mean that he was not entitled to the assistance of a psychiatrist.

Following that reasoning, trial courts have granted the People the right to designate psychiatrists to examine the defendant in preparation for a competency hearing (see, People v. Gonzalez, 132 Misc.2d 1004, 506 N.Y.S.2d 276; People v. Broccolo, 130 Misc.2d 606, 497 N.Y.S.2d 816). Since both the People and the defendant may object to the findings of the psychiatrists designated by the director, and the People bear the burden of proof as to competency, to deny the People the right to obtain necessary psychiatric evidence to satisfy their burden of proof is an absurd result (see, People v. Christopher, 65 N.Y.2d, supra, at 424, 492 N.Y.S.2d 566, 482 N.E.2d 45; People v. Gonzalez, supra; People v. Broccolo, supra ).

We further note that one of the primary concerns voiced in the legislative history of CPL article 730 was that mentally ill people accused of crimes were languishing in mental hospitals and that "the courts should not, as they now do, assume a purely passive role, merely waiting for a medical judgment", but should take a more active role in determining the defendant's competency. ³ To give the courts such a role, and mandate hearings, yet strictly limit the evidence which may be submitted at such hearings, would be a contradiction in terms.

In other contexts, the Court of Appeals has...