People v. Reidout

• Decision Date: 26 May 1988
• Citation: 140 Misc.2d 632,530 N.Y.S.2d 938
• Parties: The PEOPLE of the State of New York v. Chauncey REIDOUT, Defendant.
• Court: New York Supreme Court

Page 938

530 N.Y.S.2d 938

140 Misc.2d 632

The PEOPLE of the State of New York v. Chauncey REIDOUT, Defendant.

Supreme Court, Bronx County Part 47.

May 26, 1988.

Paul Gentile, Dist. Atty., Bronx County by Deborah Seidenberg, Asst. Dist. Atty., for the People.

Donald Duboulay, New York City, for defendant.

RICHARD LEE PRICE, Justice.

The defendant is charged with various crimes including the murders of his wife and 13 year old stepdaughter and the attempted murders of his 9 year old stepson and 7 year old son. Both the stepson and son will be witnesses for the prosecution as they are supposed eyewitnesses to the two murders and the attempts. Thus, the testimony of the children is being offered as direct evidence of guilt.

On May 3, 1988 both children appeared before this court and, after a full hearing, were qualified, pursuant to CPL § 60.20, to give sworn testimony.

The murders took place on March 9-10, 1987. The proposed witnesses were turned over to the care of the Bureau of Child Welfare (hereinafter referred to as BCW) on March 10, 1987 and a file was created which contains, among other things, statements taken from the children describing what happened on the night of the murders. In addition, on April 1, 1987, the stepson began a course of psychiatric treatment at Harlem Hospital's Psychiatric Unit. Those records also contain statements of the stepson pertaining to the murders.

Defense counsel served a subpoena duces tecum on Harlem Hospital for the production of the proposed witness' psychiatric treatment records. Counsel for Harlem Hospital moved to quash the subpoena on the grounds that the records were confidential and, if used for cross-examination of the patient, would have a chilling effect on his ability to freely confide in his therapist and would, consequently, hinder his progress in therapy. The Assistant District Attorney made similar arguments in support of the application.

In opposition to the application, defense counsel argued that his ability to cross-examine the proposed witness, in light of his age and experience, would already be severely curtailed. Thus, counsel stated, he should be permitted to view the records and cross-examine the witness with information contained therein. He argued that the interests of justice, especially in light of the severity of the charges against his client, would be best served by open disclosure of the records.

It should be noted that both counsel for Harlem Hospital and the Assistant District Attorney represented to the court that they had not reviewed the records in question so as to preserve their confidentiality.

A second subpoena duces tecum was served upon BCW for production of their records concerning both children. Counsel for BCW appeared and also moved to quash the subpoena on the grounds of confidentiality. The Assistant District Attorney argued in kind. Defense counsel opposed the application but asked only for those portions of the records "which would impact upon the testimony here". Transcript p. 7 (May 16, 1988). This qualification is of no moment as all evidence, in order to be admitted, must first pass the test of relevancy, which could easily be defined as any evidence that would impact upon the testimony.

Defense counsel's only articulated purpose in seeking, and using, these records was to attack the credibility of the witnesses with any inconsistent statements the records may contain. Transcript of Harlem Hospital's application (May 11, 1988) and p. 6 (May 16, 1988).

In order to accommodate the competing interests of the defendant in his quest to conduct a full and unfettered cross-examination and the witnesses' expectation that their BCW and psychiatric treatment records were confidential, this court, preliminarily, denied the motions to quash but received the contested records for the purpose of conducting an in camera inspection, a procedure authorized by CPL § 240.90(3). Also see, People v. Price, 100 Misc.2d 372, 419 N.Y.S.2d 415 (Supreme Court, Bronx County 1979). This conclusion, however, could not have been reached without an analysis of the arguments of counsel, to wit, whether the subpoenaed records are, indeed, confidential and, if so, what was the scope.

§ 33.13 of the Mental Hygiene Law clearly cloaks the psychiatric treatment records of the stepson with a veil of confidentiality:

§ 33.13. Clinical records; confidentiality

(c) Such information about patients or clients reported to the offices, including the identification of patients or clients, and clinical records or clinical information tending to identify patients or clients, at office facilities shall not be a public record and shall not be released by the offices or its facilities to any person or agency outside of the offices except as follows:

1. pursuant to an order of a court of record requiring disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality, provided, however, that nothing herein shall be construed to affect existing rights of employees in disciplinary proceedings.

On its face, therefore, the confidentiality conferred is not absolute if the need for confidentiality is significantly outweighed by the interests of justice.

When analyzing the purpose for bestowing confidential status upon the Harlem Hospital records the court was guided by CPLR § 4504, which defines the statutory privilege protecting a patient's records from disclosure by his or her physician:

§ 4504. Physician, dentist and nurse

(a) Confidential information privileged. Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing or dentistry shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity. The relationship of a physician and patient shall exist between a medical corporation, as defined in article forty-four of the public health law, a professional service corporation organized under article fifteen of the business corporation law to practice medicine, and the patients to whom they respectively render professional medical services.

CPLR § 4504 is a rule of evidence which reflects the legislature's intention to encourage full and open communication of all information to the physician without fear of disclosure. Steinberg v. New York Life Insurance Co., 263 N.Y. 45, 188 N.E. 152 (1933); Edington v. Mutual Life Insurance Co., 67 N.Y. 185 (1876). The facts of a person's medical history are not protected; rather it is the confidential communications made by the patient to the physician that are privileged. Williams v. Roosevelt Hospital, 66 N.Y.2d 391, 497 N.Y.S.2d 348, 488 N.E.2d 94 (1985). In the content of psychiatric treatment records, where the treatment revolves solely around confidential communications made to the therapist, the physician/patient privilege would protect the records in their entirety.

The physician/patient privilege as defined in CPLR § 4504 is made applicable to criminal proceedings by virtue of CPL § 60.10, which states:

§ 60.10. Rules of evidence; in general

Unless otherwise provided by statute or by judicially established rules of evidence applicable to criminal cases, the rules of evidence applicable to civil cases are, where appropriate, also applicable to criminal proceedings.

In the case of children, in general, and this child in particular, maintaining the confidentiality of the communications of the patient made to his or her therapist is of paramount importance for the patient's progress in therapy. The in camera review of the psychiatric records revealed that the stepson was able to fully disclose his thoughts and feelings only after a relationship of trust had developed between himself and his therapist. In support of the application, the hospital has submitted a letter to the court from Dr. Eleanor Townsend, a psychiatrist and the Director of the Harlem Center for Child Study. This letter contains the opinion of the author that

In order to maintain the effectiveness of this treatment, it is necessary that confidentiality be maintained so that he (the witness) knows that he may speak freely without fear that others will know what he says. (Parentheses added).

The records further revealed the child's anxiety about testifying and, specifically, that he was afraid that the defendant would use fear tactics to prevent him from telling the truth. Two illustrative entries in the chart dramatically depict the child's concerns. An interview conducted on April 25, 1988, prior to the date upon which the witness was to appear before the Grand Jury, reflects the child's "fear that father would break free of guards and kill him". Of course, the defendant was not present during the Grand Jury proceeding; the records of the stepson's session conducted after he testified revealed the child's relief at the absence of the defendant. On May 4, 1988, immediately after he testified at the qualification hearing he stated to his therapist that "daddy is making faces at me to try to stop me from telling the truth". It was his therapist's impression that the witness was "a very frightened little boy right now".

The character of the BCW records are somewhat different from the psychiatric treatment records because the focus of BCW is placement of the children, rather than their individual therapy. The BCW records do, however, contain dramatic statements of both children when relating the events of the night of the murders. With their mother dead, and having heard the children recount their observations of the defendant's return to the apartment that contained the dead bodies of the victims where he turned on the gas stove and left a lit cigarette at or near the stove, BCW charged the defendant with child abuse and maltreatment. The goals of BCW are distinct from those of the...