People v. Harris

• Decision Date: 08 July 1985
• Citation: 109 A.D.2d 351,491 N.Y.S.2d 678
• Parties: The PEOPLE, etc., Respondent, v. Jean S. HARRIS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 678

491 N.Y.S.2d 678

109 A.D.2d 351

The PEOPLE, etc., Respondent, v. Jean S. HARRIS, Appellant.

Supreme Court, Appellate Division Second Department.

July 8, 1985.

Michael Kennedy, P.C., New York City (Joseph Calluori and Gregory M. Byrne, New York City, of counsel), for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Richard E. Weill, Gerald D. Reilly and Anthony J. Servino, White Plains, of counsel), for respondent.

Before O'CONNOR, J.P., WEINSTEIN, LAWRENCE and EIBER, JJ.

O'CONNOR, Justice Presiding.

On March 10, 1980, defendant Jean Harris test-fired her .32 revolver at her Virginia home, placed the loaded gun into a car along with several rounds of ammunition, and headed for New York. At approximately 10:30 P.M., after a trip of some five hours, she arrived in Purchase, New York at the home of cardiologist Herman Tarnower, entered through the garage, and went upstairs to the second floor, where she found him in bed. Five shots later, Dr. Tarnower was dead.

Having indicted defendant for murder in the second degree and lesser related crimes, the People theorized at trial that she had been unhappy over the loss of the affections of Tarnower, her companion and paramour for over 13 years, and had intentionally shot him, causing his death. Defendant maintained, and maintains to this day, that the shooting was an accident; that as a result of setbacks in her career she had decided to end her life on the grounds of the Tarnower estate that she had come to regard as her home; and that in a struggle to prevent her from committing suicide the doctor had accidentally been shot. Faced with conflicting versions of the facts, the jury resolved the conflict in favor of the People, finding defendant guilty as charged. That conviction was subsequently affirmed (People v. Harris, 84 A.D.2d 63, 445 N.Y.S.2d 520, affd. 57 N.Y.2d 335, 456 N.Y.S.2d 694, 442 N.E.2d 1205, cert. denied 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803, supra ), and defendant is presently serving a prison term of 15 years to life.

In May 1983, more than two years after the judgment was rendered, defendant moved in the County Court, pursuant to CPL article 440, for an order vacating her conviction and directing a new trial, claiming that her "conviction * * * was the result of deprivations of * * * fundamental constitutional rights". The court denied the motion without a hearing, ruling that said motion was procedurally barred since the claims proffered, while not raised on appeal, could have been, and that, in any event, insufficient facts were alleged to support those claims. We are now asked to determine whether the County Court properly denied the motion.

Introduction

CPL article 440, which codifies the common-law writ of error coram nobis, permits the court in which a judgment of conviction has been entered, upon defendant's motion, to vacate the judgment on several enumerated grounds. Included among these grounds is, as defendant here alleges, that the judgment was "obtained in violation of a right * * * under the constitution of this state or of the United States" (CPL 440.10[1][h] ).

Nonetheless, this procedure, which is designed to inform a court of facts not reflected in the record and not known at the time of judgment that would, as a matter of law, undermine the judgment, cannot be used as a vehicle for a second appeal or as a substitute for direct appeal (see, People v. Crimmins, 38 N.Y.2d 407, 381 N.Y.S.2d 1, 343 N.E.2d 719, People v. Donovan, App.Div., --- N.Y.S.2d ---- [2d Dept., Apr. 1, 1985] ). Indeed, CPL 440.10(2) specifically provides, insofar as pertinent here, that the motion must be denied when the grounds or issues raised have been determined on appeal (concededly not the case at bar), or when:

"(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him".

Subdivision 3 of the same section further narrows the availability of the procedure by permitting the court, in its discretion, to deny the motion when, inter alia,

"(a) Although facts in support of the ground or issue raised upon the motion could with due diligence by the defenda have readily been made to appear on the record in a manner providing adequate basis for review of such ground or issue upon an appeal from the judgment, the defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal. This paragraph does not apply to a motion based upon deprivation of the right to counsel at the trial or upon failure of the trial court to advise the defendant of such right".

If the motion is not barred on these procedural grounds, the court will consider it on the merits (see, CPL 440.30[2] ).

Assuming the court reaches the merits, then it must grant the motion without conducting a hearing, if the moving papers allege a ground constituting a legal basis for the motion and supported by uncontroverted facts (CPL 440.30[3] ). On the other hand, the court may deny the motion without a hearing if the moving papers fail to allege either a ground constituting legal basis for the motion or sufficient facts to support the ground advanced (CPL 440.30[4] ). Only if the court does not determine the motion pursuant to CPL 440.30(2), (3) or (4) must it conduct a hearing (CPL 440.30[5] ).

With these principles in mind, we turn to the individual claims raised by defendant's motion.

Pate Violation

As a first ground for vacatur, defendant argued at nisi prius and renews the argument before this court, that "notwithstanding the substantial evidence that [she] was unable to rationally comprehend and participate in the proceedings, the [Trial] [J]udge failed to order an examination of her competency to stand trial" in derogation of her constitutional rights. As noted, the County Court rejected this argument, ruling, inter alia, that this claim, while not raised on appeal, could have been and that "consideration is or should be precluded by the procedural bars of section 440.10(2)(c) and (3)(a) of the Criminal Procedure Law". We do not agree that this claim should have been rejected on procedural grounds.

It has long been accepted, and indeed the Supreme Court has recognized as a matter of Federal due process, that an accused lacking competence may not be subjected to a trial (see, Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835; 4 W. Blackstone Commentaries, p. 34; Note, Incompetency to Stand Trial, 81 Harv.L.Rev. 455). In order to safeguard this substantive right that an accused have " 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' " and " 'a rational as well as factual understanding of the proceedings against him' (Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824), the Supreme Court announced in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, a separate procedural due process right to a competency hearing whenever the facts or events presented to the trial court raise a bona fide doubt as to a defendant's competency. ¹ Failure by the trial court to conduct such a hearing--the only claim defendant raises here--may constitute a denial of the right to a fair trial that could invalidate the conviction (see, Pate v. Robinson, supra; Lokos v. Capps, 5th Cir., 625 F.2d 1258; Pedrero v. Wainwright, 5th Cir., 590 F.2d 1383 [Wisdom, J.], cert. denied 444 U.S. 943, 100 S.Ct. 299, 62 L.Ed.2d 310).

In determining whether a trial court did deny due process in refusing a hearing, the proper focus, as Pate and its progeny teach, is on what the court did in light of what it then knew of the defendant (Pate v. Robinson, supra, 383 U.S. at p. 385, 86 S.Ct. at p. 342; see, e.g., Drope v. Missouri, 420 U.S. 162, 176-77, 95 S.Ct. 896, 906, 43 L.Ed.2d 103; Hance v. Zant, 11th Cir., 696 F.2d 940, 948, cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393; Reese v. Wainwright, 5th Cir., 600 F.2d 1085, 1093, cert. denied 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410; Nathaniel v. Estelle, 5th Cir., 493 F.2d 794, 797). As the Fifth Circuit has stated, the test to be applied is an objective one: Did the Trial Judge receive information which, objectively considered, should reasonably have raised a doubt about the defendant's competency and alerted him to the possibility that the defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his attorney in his defense? (see, Lokos v. Capps, 5th Cir., 625 F.2d 1258, 1261, supra; Pedrero v. Wainwright, 5th Cir., 590 F.2d 1383, 1388, cert denied 444 U.S. 943, 100 S.Ct. 299, 62 L.Ed.2d 310, supra ).

Turning to defendant's Pate claim and the statutory bar issue, it bears re-emphasizing that for a court to apply the procedural bar of CPL 440.10(2)(c), two conditions must be met: (1) "sufficient facts [must] appear on the record * * * to have permitted, upon appeal from * * * [the] judgment, adequate review of the ground or issue raised upon the motion", and (2) no review occurred "owing to the defendant's unjustifiable failure" to perfect an appeal or raise the issue on appeal.

An examination of the trial transcript discloses four instances when the Trial Judge received specific information pertaining to defendant's mental state. On December 10, 1980, the twelfth day of trial, for instance, defendant's attorney informed the court that he was waiving his client's presence at a robing room conference because she had difficulty enduring the proceedings in a nondisruptive manner and he "had to rush the...