People v. Novak

• Decision Date: 03 September 2013
• Docket Number: 233-2012
• Citation: 2013 NY Slip Op 23295
• Parties: The People of the State of New York, Plaintiff, v. Paul Novak, Defendant.
• Court: New York Court of Appeals Court of Appeals

2013 NY Slip Op 23295

The People of the State of New York, Plaintiff,
v.
Paul Novak, Defendant.

233-2012

County Court, Sullivan County

Decided on September 3, 2013

APPEARANCES: Gary Greenwald, Esq.
Greenwald Law Offices
Attorney for Defendant
Hon. James R. Farrell
Sullivan County District Attorney
Attorney for the People
Stephen F. Lungen, Esq.
Special Prosecutor, Attorney for the People

Frank J. LaBuda, J.

Defendant has requested the Court to allow a psychiatric expert witness, Dr. Kevin Smith, M.D. to observe the testimony of Scott Sherwood (hereinafter, "Sherwood"), and then testify on behalf of Defendant with regard to Sherwood's medical history as demonstrated by his medical records and treatment, and his opinion with regard to Sherwood's credibility for his taped interview and trial testimony and his observations of the witness at trial. For the reasons stated below, Defendant's request is granted in part with express limitations.

The cold case file of the death and arson of Catherine Novak was revived on April 4,

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2012, when a young woman ¹ called the New York State Police in Liberty, New York, and recanted her statements and alibi for Paul Novak, her estranged paramour, and "confessed" to her role and knowledge of the murder of Catherine Novak, the estranged wife of the defendant, herein, Paul Novak. The Defendant was indicted on October 24, 2012 for the December 13, 2008, murder of his wife, and charged with murder in the first degree, murder in the second degree, arson, burglary, larceny and insurance fraud. Sherwood was also indicted as a co-defendant and was charged with murder in the second degree, arson and burglary. After lengthy plea negotiations, Sherwood pleaded guilty on the eve of Novak's trial to a separate Superior Court Information, pursuant to a cooperation agreement,² to conspiracy to commit murder, for which he agreed to testify against Defendant at trial, and for which he will receive a sentence of three to 12 years in state prison.³

Although Sherwood was a licensed and functioning paramedic and EMT in New York City, it is not disputed that Sherwood has a long, significant mental, psychological and emotional history, including depression, anxiety, and bi-polar disorder, and takes prescription medications for these disorders, including psychotropic medications. Defendant argues that it is necessary for his expert, Dr. Kevin Smith, to observe Sherwood's testimony so he can assist the defense with fashioning an appropriate cross-examination as to Sherwood's testimony, given his mental state and medications, and then testify on behalf of Defendant to explain Sherwood's veracity and vulnerability to suggestion when under stress due to his mental disorders.

It has long been established in New York that excluding a witness from the courtroom during the examination and testimony of other witnesses is at the sole discretion of the court. Philpot v. Fifth Ave. Coach Co., 142 AD 811 [1st Dept. 1911]; People v. Cooke, 292 NY 185 [1944]. While the Federal Rules of Evidence allow for an expert to observe the testimony of other witnesses during a trial, FRE §§615, 702. Under the federal rules, a party may request exclusion of an expert during the testimony of a lay, fact witness, but experts are generally allowed to remain in the courtroom during another expert's testimony. The New York rules of evidence, as well as case law, do not. Whether an expert witness may remain in the courtroom during other witness' testimony, expert or lay, is left to the sole discretion of the trial court. Although New York considered codifying the federal rules regarding allowing the presence of an expert witness to remain in the courtroom during the testimony of other witnesses, to date, no rules have been adopted; there is no statutory authority in New York on this issue.

The purpose of sequestration, or exclusion of witnesses from the courtroom during other witness' testimony, is to prevent a prospective witness from "being taught by hearing another's

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testimony." People v. Medure, 178 Misc 2d 878 [Sup. Ct. Bronx Co. 1998]. This is a particular concern when lay, fact witnesses listen to other lay, fact witnesses; the only safeguard to preventing later testifying witnesses from tailoring their testimony is to exclude them from the courtroom prior to giving their own testimony. The Court of Appeals has held, however, that "The same reasons for exclusion do not apply to expert witnesses." People v. Santana, 80 NY2d 92 [1992].

[T]he presence in the courtroom of an expert witness who does not testify to the facts of the case but rather gives his opinion based on the testimony of others hardly seems suspect and will in most cases be beneficial, for he will be more likely to base his expert opinion on a more adequate understanding of thetestimony as it evolves before the jury.' Id.

***

[W]ithout the assistance of a psychiatrist to...present testimony, and to assist in preparing the cross-examination of a State's psychiatric witness, the risk of inaccurate resolution of sanity issues is extremely high.' Id., at 99.

Regardless of whether New York trial courts allow an expert to observe the trial testimony of other witnesses, expert or lay, the Court of Appeals, as well as the Appellate Divisions, have consistently held such a decision is in the discretion of the trial court, depending on the nature of the case as well as the proposed subject matter of the expert's testimony. Because there is no statutory scheme on this issue in New York, state and federal case decisions vary. For example, in affirming a decision by the Court of Appeals excluding a potential witness from the courtroom and finding no violation of a defendant's Sixth Amendment rights, the federal district court, in Baker v. Fischer, 2012 WL 1909286 [WDNY 2012], stated,

The exclusion of potential witnesses during the testimony of other witnesses is routine during criminal trials, and it is important because it negates the possibility that their testimony will be tainted or influenced by their having observed other witness' testimony on the same or similar topics [Citations omitted]. Id., at 8.

***

...[T]he New York Court of Appeals reasonably found that the exclusion of [the potential witness] from the courtroom...did not contravene Sixth Amendment courtroom-closure jurisprudence. Id.

On the other hand, in Malek v. Federal Insurance Company, et al., 994 F2d 49 [2nd Cir. 1993], a civil matter, the plaintiffs requested that the court allow their fire expert to be present in the courtroom during the defendants' fire expert's testimony. They argued that their expert's presence was "necessary to assist...in preparing cross [examination]." Id., at 54. The district court denied the plaintiffs' request and ordered all of the witnesses to leave the courtroom.

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Commenting on FRE §615(3), the Second Circuit Court of Appeals noted, "The advisory committee notes specify that the exception [to sequestration of a witness] contemplates an expert needed to advise counsel in the management of the litigation.'" Id., emphasis added, citing, Trans World Metals, Inc. v. Southwise Co., 769 F2d 902, 911 [2nd Cir. 1985]. Finding that the district court erred in denying the plaintiffs' request, the Court stated,

Our review of the record reveals that [the defendant's expert's] testimony differed from his reports: [the expert] testified that the fire was an intense fire' but did not make that specific finding anywhere in his report. Since this was an important finding bearing on the question of arson and was not made in [the defendant's expert's reports. [The plaintiffs' expert's] presence in the courtroom was important to the presentation of the [plaintiffs'] case....Malek v. Federal Insurance Company, et al., 994 F2d at 54.

There is no question that "[a criminal] defendant has a fundamental right to call witnesses in his own behalf." People v. Palmer, 272 AD2d 891 [4th Dept. 2000], citations omitted. It may be reversible error to preclude testimony of a criminal defendant's witness who was present during other witness' testimony, even when the witness violated an order of sequestration. Id. Reversible error is further supported when " the prosecutor [fails] to show how the People would have been prejudiced by having the witness testify.'" Id., citations omitted. The ultimate decision, however, is always left to the discretion of the trial court and based on the specifics of each case.

A court must consider if whether an...