People v. Pena

• Decision Date: 04 June 1998
• Citation: 675 N.Y.S.2d 330,251 A.D.2d 26
• Parties: The PEOPLE of the State of New York, Respondent, v. Edmond PENA, a/k/a Edmond Pina, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 330

675 N.Y.S.2d 330

251 A.D.2d 26

The PEOPLE of the State of New York, Respondent, v. Edmond PENA, a/k/a Edmond Pina, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

June 4, 1998.

Matthew Kleiner, for Respondent.

Susan J. Abraham, for Defendant--Appellant.

Before ROSENBERGER, J.P., and NARDELLI, WALLACH and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered July 7, 1994, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second violent felony offender, to concurrent terms of 4 1/2 to 9 years on the third-degree sale and possession convictions, and 2 to 4 years on the fifth-degree possession conviction, unanimously affirmed.

Defendant Edmond Pena was arrested on June 23, 1993 for the sale and possession of drugs in connection with a buy and bust operation. Defendant acted as the steerer while codefendant Ramon Gonzales sold three bags of cocaine to an undercover officer. Both men were arrested a few minutes after the sale, and 17 additional bags of cocaine and pre-recorded buy money were recovered from them. Defendant did not testify at trial, and the jury convicted him of the three crimes charged in the indictment.

Defendant challenges the trial court's denial of his motion to set aside the verdict. For the first time on appeal, defendant argues that the trial court failed to adhere to the procedures of CPL article 730 in rendering its retrospective determination that he was competent at the time of his trial. The issue of defendant's competency arose on December 2, 1993, after he made a suicide threat to a corrections officer on the date he was scheduled to be sentenced. The sentencing was adjourned, and defendant was taken to Bellevue Hospital, where his history of treatment for schizophrenia was disclosed. He was treated with several medications, and was transferred to the psychiatric clinic at Riker's Island.

On January 4, 1994, defense counsel moved to set aside the verdict pursuant to CPL 330.30 and CPL 440.10(1)(e) on the ground that new evidence had been discovered that defendant had been mentally incompetent to stand trial, and that his conviction was therefore obtained in violation of his constitutional rights. Alternatively, he requested a hearing to determine his competency to stand trial pursuant to CPL 330.40(2)(f), and Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815. Relying on a 1991 letter stating that defendant had been admitted to a New Jersey Hospital for "schizophrenia, undifferentiated", defense counsel claimed he would have interposed an insanity defense at trial had he known of defendant's condition. On January 20, 1994, the trial court ordered an examination pursuant to CPL article 730 to determine defendant's competency to be sentenced.

On February 2, and March 2, 1994, defendant was examined by Dr. Gordon at the Supreme Court Forensic Psychiatry Clinic to determine his fitness to be sentenced. In his March 2nd report, Dr. Gordon stated that although defendant related to his case in a "confused" state, and reported hearing voices and having suicidal urges, it appeared that such symptoms may have been contrived. Defendant was referred to Bellevue for further examination.

At Bellevue, defendant was examined by two psychiatrists, Dr. Saunders and Dr. Jonas, between March 3rd and March 9th. In their separate reports, the doctors stated their opinion that the defendant understood the charges against him and the nature of the legal proceedings. The doctors agreed that although defendant had a history of drug abuse and had some genuine psychotic symptoms, defendant responded well to anti-psychotic medication and appeared coherent and rational. They concluded that defendant was competent to proceed and able to assist in his own defense.

On March 15, 1994, the court received a letter from Dr. Goldstein, defendant's psychiatrist, who had examined defendant on January 31, 1994. After reviewing defendant's psychological history and his prior abuse of drugs and alcohol, Dr. Goldstein related that defendant had been taking anti-psychotic medication, had attempted suicide three times, had trouble sleeping due to nightmares of being chased and had heard voices screaming at him. Dr. Goldstein concluded that defendant was suffering from chronic undifferentiated schizophrenia, and that there was a substantial probability that defendant was unfit to proceed prior to and during his trial. The trial prosecutor, in his April 12, 1994 response to defendant's motion to set aside the verdict, disputed Dr. Goldstein's findings as inconsistent with the conclusions of the other examining doctors, and with defendant's unexceptional behavior during the trial proceedings.

On May 3, 1994, the date defendant's motion was scheduled to be decided, defense counsel requested an adjournment of the decision so that Hillel Bodek ("Bodek"), a clinical social worker specializing in forensic clinical social work, could perform a more complete evaluation of defendant's condition. The court agreed and appointed Bodek to evaluate defendant's competency to stand trial at "the request of defendant." Thereafter, Bodek examined defendant on numerous occasions, totalling 28 hours, between May 5 and July 7, 1994. Bodek reviewed defendant's Bellevue records, Dr. Goldstein's report, the previous CPL Article 730 evaluations by Doctors Gordon, Saunders and Jonas, defendant's school records, a mental health evaluation taken during defendant's adolescence and other evaluations taken during adulthood, including those obtained by prison health officials.

In his lengthy written report dated July 7, 1994, Bodek gave his opinion that defendant had the substantial capacity to know and appreciate the charges and proceedings against him, that he had a rational and factual understanding of those charges and proceedings and that he was capable of assisting in his own defense. Bodek stated that while defendant had experienced intermittent periods of severe psychosis, most likely due to his drug abuse, he had been able to function normally for long periods of time without medication, and no evidence existed that he experienced any psychosis or otherwise lacked competence before or during the trial. On the contrary, defendant began to experience auditory hallucinations and suicidal ideation only as his sentencing date approached. Bodek further reported that defendant expressed a clear understanding of the trial proceedings and the defense strategy. Bodek concluded that there was nothing to warrant interposing a defense of lack of criminal responsibility by reason of mental disease or defect in this case.

In a written decision dated July 8, 1994, the trial court denied defendant's motion to set aside the verdict. After noting that an incompetent person may not be tried for a criminal offense, the court stated that it would address the question of defendant's competency despite the fact that the defense never raised the issue before or during the trial, and defendant had exhibited no unusual behavior that would have obligated the court to sua sponte order a CPL article 730 examination. The court found that reconstruction of defendant's mental state at the time of trial was possible given the relatively brief interval between the verdict and defendant's motion, and the existence of contemporaneous evidence regarding defendant's mental state.

The trial court reviewed Bodek's report and the reports of the psychiatric evaluations of defendant. It also acknowledged defendant's criminal history, his treatment for substance abuse and schizophrenia and his improved condition after taking anti-psychotic medication. The court found that during his pre-trial incarceration, defendant was seen by the Prison Health Services and denied having any recent psychiatric symptoms. Further, in the six months after the verdict, defendant was seen for medical care on a number of occasions and the records of those examinations are bereft of any signs of mental disorder. Additionally, the court noted that it had not observed defendant engage in any bizarre or inappropriate behavior during the trial.

The court stated the "most important" evidence of defendant's mental state was his recollection of the events of this case to Bodek. Defendant acknowledged to Bodek that he had been charged as acting as a steerer in a drug sale, but maintained that he had nothing to do with the sale but was merely present in the area. He further told Bodek that he had discussed the People's theory and the defense strategy with his lawyer. Defendant's trial counsel even adopted, apparently at defendant's suggestion, the argument that defendant could not have been the "boss" of the drug operation since he was a homeless person. The court also found that while defendant now claimed to be confused about the charges, his confusion was only about the strength and sufficiency of the People's case. This conclusion, the court found, was not undermined by defendant's suicide threat or Dr. Gordon's finding of psychotic symptoms, which may have resulted from defendant's admitted failure to take his medication, or the likelihood of a long prison sentence, or both.

Defendant now argues that the court violated the procedures of CPL article 730 by rendering a ruling on defendant's competence to stand trial based on an examination of only one qualified psychiatric examiner, Dr. Goldstein. Defendant argues that Bodek does not fall within the definition of a qualified "psychiatric examiner" under CPL 730.10(7), and that the examinations by Doctors Gordon, Saunders and Jonas were for the different purpose of determining defendant's competency to be sentenced. However, we agree with the...