People v. Lowe

• Decision Date: 28 July 1978
• Citation: 96 Misc.2d 33,408 N.Y.S.2d 873
• Parties: The PEOPLE of the State of New York v. Sandra LOWE, Defendant.
• Court: New York City Court

Page 873

408 N.Y.S.2d 873

96 Misc.2d 33

The PEOPLE of the State of New York v. Sandra LOWE, Defendant.

Criminal Court of the City of New York, Bronx County.

July 28, 1978.

Mario Merola, Dist. Atty., County of Bronx by Philip Stone, New York City, for the People.

Martin Erdmann, New York City by Neal C. Allen, New York City, for defendant.

EVE M. PREMINGER, Judge:

Defendant was charged with Burglary, Petit Larceny and Criminal Mischief arising from alleged incidents in complainant's apartment on two separate occasions. After a preliminary hearing before another judge, the felony charges were reduced and the matter held for trial. Defendant now moves for discovery of complainant's medical records and for a psychiatric examination of the complainant.

The complainant, John Graham, is a fifty four year old disabled veteran. At the preliminary hearing, he testified that he had suffered brain injury during World War II. As he put it, ". . . the rockets came and messed up my brains and paralyzed me." He also testified that he could not remember certain things such as the dates of the alleged incidents or how long he had lived in his present apartment; that he could not think "too good" and gets "mixed up"; and that he is not able to follow questions "too fast."

On the whole, his testimony was confused, frequently tangential, and sometimes contradictory, although a picture of the underlying incidents did emerge. On the day in question, he answered a knock on his door, thinking it was the television repairman whom he had called for earlier. Instead, several people pushed him aside and came into his apartment whereupon they stole his food, money and phonograph records.

He changed his testimony several times as to how many people were involved and who they were. He became confused also about how they had entered the apartment, sometimes saying they entered through the door and at other times through the window, and finally stated that he could not remember.

At another point he testified that he could not see very well and that he was half-blind. Later during cross-examination, he testified that he had not been wearing his glasses on the day in question. At this point, he called the District Attorney over and whispered something to him. Upon defense counsel's objection, the District Attorney told the Court that the complainant admitted to him that the reason he had said he was half-blind was due to the fear that defendant's friends might throw lye in his face.

Subsequent to the hearing, defense counsel's investigation revealed that complainant had been hospitalized at Marlboro Psychiatric Hospital in New Jersey and that psychiatric evaluations were performed on him at Veteran's Administration Hospital. Defendant now seeks to compel production of those records.

Due process considerations require the disclosure to an accused of evidence favorable to him which is material to guilt or punishment, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). It is recognized that "the jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); and accordingly, courts have required disclosure of evidence tending to affect the credibility of a particular witness, Napue v. Illinois, supra; Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957); Levin v. Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287 (1966); People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 281 (1961), Cert. denied, 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 (1961).

Evidence of the mental illness of a witness is a fact that a jury is entitled to know so that it may ". . . assess and evaluate the testimony given by him and not accept it . . . as the statement of a 'normal' individual," People v. Rensing, 14 N.Y.2d 210, 213-14, 250 N.Y.S.2d 401, 404, 199 N.E.2d 489, 491 (1964). This is so because such evidence bears "not just upon the witness' general trustworthiness" of the complainant but also upon "the reliability of his specific testimony," Simos v. Gray, 356 F.Supp. 265, 270 (E.D.Wis.1973).

The post conviction discovery of evidence of a witness' mental condition has been sufficient to order a new trial in several instances, People v. Maynard, 80 Misc.2d 279, 363 N.Y.S.2d 384 (1974); People v. Rensing, supra. In Maynard, the People had refused defendant's request for the criminal record of the key prosecution witness which would have led to evidence of the witness' mental commitment for a prior ongoing mental condition. The Court held that the suppression was a violation of due process under Brady v. Maryland, supra, because the witness, who was uncontradicted, must have played a crucial role in the jury's verdict and, therefore, evidence of his aberrant mental condition would have been material on the question of the defendant's guilt.

In Rensing, the co-defendant, who had testified against defendant, was certified insane after the trial on the basis of a long-standing mental condition. It was essential that a jury be made aware of such evidence so that it would be in a position to evaluate testimony and, accordingly, a new trial was ordered.

The major issue in this case involves the reliability of the complainant who is the sole eyewitness to the alleged crime. The preliminary hearing illustrates the complainant's difficulty in recollecting events and communicating to others his perceptions and observations of those events. He claims this difficulty is due to brain damage. The only information that defendants now have is that complainant was once hospitalized and has been the subject of psychiatric evaluations. The medical records can aid the defendant, the prosecution, and ultimately the jury, in determining the proper weight to be accorded the complainant's testimony, People v. Parks, 41 N.Y.2d 36, 300 N.Y.S.2d 848, 359 N.E.2d 358 (1976).

Where, as here, there is knowledge of a longstanding, ongoing mental condition of a complainant who is the sole eyewitness to the crime, and where such condition may affect the accuracy, perception and comprehension of his testimony, evidence must be disclosed to the defendants concerning such a condition.

The People argue that since this is a pre-trial motion and the cases cited above involved post-trial motions for a new trial on the ground that the conviction resulted from the testimony of a witness whose mental state is later discovered to be questionable, there are no grounds for disclosure at this time. That argument cannot succeed. The basis for reversal was that the evidence was so material to the issue of guilt or innocence that it would play a part in the jury's consideration. Since the same kind of evidence regarding the prosecution's key witness has been uncovered Prior to trial and will be an issue at trial, the time is even more appropriate for disclosure so that the evidence can be put "to most significant use," People v. Maynard, 80 Misc.2d at 289, 363 N.Y.S.2d 384.

In ordering the disclosure, this Court is merely applying the established principle of admitting extrinsic evidence of a witness' mental defect or deficiency to impeach his credibility, including the admission of hospital records. Ellarson v. Ellarson, 198 App.Div. 103, 190 N.Y.S. 6 (3rd Dept. 1921); United States v. Pugliese, 153 F.2d 497 (2nd Cir. 1945). See also Juviler, "Psychiatric Opinions as to Credibility of Witnesses, A Suggested Approach," 48 Calif.L.Rev. 648, 651-55 (1960).

Nor can disclosure be precluded by a claim of privilege. The statutory rule prohibiting the disclosure of communications between a patient and his physician is subject to waiver, CPLR § 4504, CPL § 60.10. A patient may waive his privilege either expressly by testifying in detail as to his injury or illness, Hethier v. Johns, 233 N.Y. 370, 135 N.E. 603 (1922) or voluntarily disclosing his condition, Apter v. Home Life Ins. Co., 266 N.Y. 333, 194 N.E. 846 (1935); or impliedly by conduct, People v. Preston, 13 Misc.2d 802, 176 N.Y.S.2d 542 (1958). The complainant has already testified that he suffers from brain damage which impairs his thinking and communication abilities. This was a voluntary...