People v. McNamee

• Decision Date: 27 September 1989
• Citation: 547 N.Y.S.2d 519,145 Misc.2d 187
• Parties: The PEOPLE of the State of New York v. Peter McNAMEE, Defendant.
• Court: New York Supreme Court

Page 519

547 N.Y.S.2d 519

145 Misc.2d 187

The PEOPLE of the State of New York v. Peter McNAMEE, Defendant.

Supreme Court, New York County Part 78.

Sept. 27, 1989.

Robert M. Morgenthau, Dist. Atty. by Alan K. Rabin, Asst. Dist. Atty., New York City, for the People.

Santangelo, Santangelo & Cohen, New York City (Michael L. Santangelo, of counsel), for defendant.

RENA K. UVILLER, Justice:

Defendant, a former firefighter, was charged with the murder of Dr. Peter Rizzo, who was chairman of the Medical Review Board of the City's Fire Department Pension Fund. The defendant shot Dr. Rizzo at close range with a sawed-off shotgun moments after learning that the Medical Board had refused to upgrade defendant's disability pension.

The defendant interposed an insanity defense. An in limine motion sought to limit the scope of a prosecution psychiatrist's trial testimony offered to refute the defendant's affirmative defense. The motion posed several unresolved evidentiary issues raised in the wake of the codification of procedures relating to psychiatric examinations and counsel's role at such examinations. Because of the limited appellate authority in this area and the likelihood these questions will recur, this opinion elaborates upon my rulings.

Specifically, the defendant sought to prevent a prosecution psychiatrist, retained to examine him regarding his criminal responsibility at the time of the crime, from reviewing reports regarding his fitness or competence to stand trail (compare CPL 250.10(3) and CPL Art. 730). ¹ The defendant argues that if this psychiatrist reviews the 730 reports he would indirectly and impermissibly convey their substance to the jury; that a jury passing upon criminal responsibility must not learn that a defendant has been found mentally competent to stand trial. People v Roth, 11 N.Y.2d 80, 226 N.Y.S.2d 421, 181 N.E.2d 440. Alternatively, the defendant seeks to preclude the psychiatrist's trial testimony altogether, as well as any prospective testimony from the competency examiners.

The broader questions concern the nature of psychiatric evidence which may be introduced by either side in an insanity case and the constitutional, statutory, and evidentiary limits upon its receipt.

FACTS

Shortly after this arraignment, Mr. McNamee was examined to determine his fitness to stand trial. Although he was found competent, he was transferred to Bellevue Hospital because of a variety of physical ailments. He also had a history of mental illness, including past psychiatric hospitalizations. The defendant remained at Bellevue for 16 months where he underwent surgery, received other medical treatment and incidently received some psychiatric care. Throughout his stay at Bellevue he was inevitably observed by hospital personnel, both medical and psychiatric. A second 730 examination again found him competent to proceed.

During those 16 months, three psychiatrists retained by the defense and one retained by the prosecution examined the defendant regarding his insanity claim; notwithstanding his competence to stand trial, all four doctors concluded that at the time he shot Dr. Rizzo, Mr. McNamee was not criminally responsible. At various court appearances during that same time period defendant's behavior was unremarkable and did not contradict the two 730 reports In that final 730 report the examining physicians again concluded that the defendant was fit to proceed but that he was now feigning hallucinations in an effort to avoid trial; that he had a manipulative personality through which he persistently sought advantages for himself. Further, the hospital records of defendant's 16 month stay at Bellevue contained references by nurses and social workers attesting to defendant as manipulative and demanding; that he invoked physical and psychiatric complaints in order to secure special considerations. Also, that defendant evinced no psychiatric disorders when he was unaware of being observed on the ward. This malingering view of defendant was likewise expressed in his Rikers Island records, where he was detained for several weeks both before and after his Bellevue hospitalization.

                concluding he was fit to proceed.   As a trial date approached, however, the defendant claimed to hear voices and stated that he was being followed and persecuted.   At his attorney's request, a third 730 examination at Bellevue Hospital was ordered.   It is this final 730 report which the defendant wishes to keep from the jury's consideration
                

With the trial date approaching, the People now seek to retain yet another psychiatrist to examine defendant regarding his insanity defense. It is this last psychiatrist whom the defense wishes to preclude from reviewing the most recent 730 report which characterizes defendant as a malingerer. The defense also seeks to preclude the various 730 examiners from rendering a trial opinion regarding defendant's mental condition at the time of the crime.

The defendant asserts that the Sixth Amendment as well as the Criminal Procedure Law accords him a right to counsel at any examination regarding his criminal responsibility [ § 250.10(3) ]. Inasmuch as he had no counsel at any of the 730 exams, he argues that a jury passing on his sanity at the time of the crime must not be permitted to learn of the 730 results either directly or indirectly; second, that the use of 730 material at trial violates due process because he had no notice that what was said during 730 examinations could be used to refute his insanity defense. Finally, defendant contends that the only admissible psychiatric evidence is that gleaned from psychiatric examinations conducted in strict conformity with CPL 250.10(3) and that an article 730 examiner may not render an opinion about sanity.

STATUTORY HISTORY

The historical relationship between fitness and sanity examinations stems from a common statutory antecedent, Section 658 of the former Code of Criminal Procedure. That statute provided broadly for court-ordered examinations as to "sanity". Although the procedures prescribed in the Code dealt only with trial fitness, the general language of the statute accommodated examinations for criminal responsibility as well ². Thus, under the old Code, opinions about a defendant's mental state at the time of the crime were permitted from psychiatrists who had examined and treated defendants during hospital commitments which ostensibly were intended to assess fitness to stand trial. People v. DiPiazza, 24 N.Y.2d 342, 300 N.Y.S.2d 545, 248 N.E.2d 412, People v. Butchino, 13 A.D.2d 183, 215 N.Y.S.2d 321; People v. Draper, 278 App.Div. 298, 104 N.Y.S.2d 703, aff'd 303 N.Y. 653, 101 N.E.2d 763.

When the Code was superseded in 1970 by the present statute, section 658 et seq. of the former Code were supplanted by Article 730 of our present Criminal Procedure Law. Article 730 is concerned expressly and exclusively with the procedures to determine fitness to proceed. It provides, inter alia, for the method of fitness examinations, CPL 730.20; who may conduct them, CPL 730.10(5), (6), (7); and the At the time of its enactment the CPL contained no provisions for examinations to assess a defendant's mental condition at the time of the crime. It was not until 1980 that the Legislature, in response to evolving constitutional parameters regarding the insanity defense, enacted procedures to evaluate criminal responsibility, as distinguished from fitness. CPL 250.10(3). See, People v. Al-Kanani, 26 N.Y.2d 473, 311 N.Y.S.2d 846, 260 N.E.2d 496; Lee v. County Court, 27 N.Y.2d 432, 318 N.Y.S.2d 705, 267 N.E.2d 452. The 1980 amendment provides that once a defendant enters a not responsible plea and serves notice of intent to offer psychiatric evidence at trial, the prosecution may, upon application to the court, have its own expert examine the accused. CPL 250.10(3). The defendant does have a right to counsel at this sanity examination, but only as a passive observer who may not actively participate. CPL § 250.10(3).

                use to which information gleaned from them may be put.   CPL 730.20(6).   Article 730 does not accord the defendant a right to counsel at fitness examinations but gives the court discretion to permit the defendant's psychiatrist to attend.   CPL 730.20(1)
                

Notwithstanding the separate legislative authorization for fitness exams on the one hand and sanity exams on the other, these are not air-tight compartments. Nothing bars an expert who examined a defendant in order to assess his trial fitness from testifying, whether on behalf of the prosecution or the defense, regarding the defendant's mental condition at the time of the crime. Subject only to evidentiary rules of relevance and competence, information gleaned from fitness examinations may be heard by a jury assigned the task of evaluating criminal responsibility.

CONSTITUTIONAL CONSIDERATIONS

1. Notice

The express language of Article 730 alerts the accused that although his uncounseled statements to the fitness examiner cannot be used at trial to prove that he is the person who committed the crime, they may be used to prove his "mental condition" when that condition has been placed in issue. CPL 730.20(6). ³ . Thus, this defendant cannot claim unfair surprise if his uncounseled statements at the last 730 examination are used to disprove his insanity defense and his reliance upon U.S. v. Driscoll, 399 F.2d 135 (2d Cir.1968) for this claim is misplaced. ⁴

That the "mental condition" which can be proved by the defendant's statements to the fitness examiner includes his mental condition during the crime is clear from the legislative history of CPL § 730.20(6). The section is based upon section 4.09 of the Model Penal Code (1985) which, in turn, expressly provides that the defendant's statements during examinations regarding any mental condition (whether for fitness, criminal responsibility, or regarding post verdict dispositions), are admissible regarding any aspect of...