People v. Roth

• Decision Date: 01 March 1962
• Citation: 11 N.Y.2d 80,226 N.Y.S.2d 421,181 N.E.2d 440
• Parties: , 181 N.E.2d 440 The PEOPLE of the State of New York, Respondent, v. Jerry ROTH, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 421

226 N.Y.S.2d 421

11 N.Y.2d 80, 181 N.E.2d 440

The PEOPLE of the State of New York, Respondent, v. Jerry ROTH, Appellant.

Court of Appeals of New York.

March 1, 1962.

Murrary A. Gordon, New York City, for appellant.

Isidore Dollinger, Dist. Atty. (Walter E. Dillon, New York City, of counsel), for respondent.

VAN VOORHIS, Judge.

Defendant was convicted of felony murder (homicide while engaged in the commission of attempted rape on November 24, 1958) with recommendation of life imprisonment. There was admitted into evidence the report to the County Court of two psychiatrists, appointed at the direction of the court, to the effect that he was capable of understanding the charge and of making his defense (Code of Criminal Procedure, §§ 870, 659-662). This report of the psychiatrists is dated January 20, 1959, and contains admissions made to them by defendant that he did the acts ascribed to him in the indictment and claimed to constitute the crime which he was charged with having committed two months previously. Section 662 of the Code of Criminal Procedure states that reports of this nature by psychiatrists appointed at the direction of the court are inadmissible. A defendant, under such circumstances, has no alternative but to submit to examinations given by the psychiatrists, and answers given by him to their questions concerning the acts constituting the alleged crime are a form of testimonial compulsion.

The receipt in evidence of this report would clearly constitute reversible error unless the contention of the District Attorney be correct that the report was offered in evidence by defense counsel at the trial. Whether it was offered in evidence on behalf of the defendant, or, if so, whether it was received for all purposes are the main questions presented on this appeal.

There is no doubt that reports of this nature are inadmissible (People v. Samuels, 302 N.Y. 163, 96 N.E.2d 757; People v. Draper, 278 App.Div. 298, 104 N.Y.S.2d 703; People v. Colavecchio, 11 A.D.2d 161, 202 N.Y.S.2d 119; People v. Butchino, 13 A.D.2d 183, 215 N.Y.S.2d 321). Not only is this for the reason that, in order to determine whether a defendant is capable of making his defense at a trial, the psychiatrists will almost certainly (as they did here) probe the defendant with questions concerning whether he did the acts ascribed to him in the indictment, which would compel a defendant to be a witness against himself, but also the standard of judgment provided by sections 658 and 870 of the Code of Criminal Procedure and Consol.Laws, c. 40, section 1120 of the Penal Law and different. Capacity to understand the nature of the charge and to defend at the time of the trial contemplate different norms from knowing the nature and quality of the act and that it was wrong, which is the standard of judgment to be applied in determining whether a defendant is not guilty on the ground of legal insanity.

At the trial counsel for the defendant did offer in evidence the compendious records of Bellevue Hospital regarding appellant. He had had a long record of mental deficiency, and had been confined in institutions for the mentally ill for considerable periods of time including three previous confinements at Bellevue. He was sent to Bellevue Hospital for observation, to be sure, after being arrested on the present charge, and the day-to-day records of that hospital would be admissible even though subsequent to the date of the commission of the homicide, if the nature of the alleged insanity was such as to relate back to his condition at the time of the homicide (People v. Samuels, supra). Upon the other hand, the report to the County Court by the psychiatrists on whether he was capable of understanding the charge and undertaking his defense is not part of the hospital records, even though a carbon copy was physically incoporated therein. This report, though based in part upon the specific findings at Bellevue, was made at the instance of the County Court to the County Court and its conclusions were subject to being overruled by the County Court (Code Crim.Proc. §§ 658-662-f). Although connected with Bellevue, these two psychiatrists were acting independently for the information of the court and their report to the court was not more part of the records of Bellevue Hospital than would have been their testimony in court.

When defense counsel at the trial offered the Bellevue Hospital records in evidence, he made no mention of this report rendered to the County Court of the ability of defendant to stand trial, and the mere circumstance that the copy forwarded to the hospital by the Clerk of the court, as he was required to do under section 662 of the Code of Criminal Procedure, was physically bound up with the hospital records does not make it part of them (Cox v. State of New York, 3 N.Y.2d 693, 171 N.Y.S.2d 818, 148 N.E.2d 879; Williams v. Alexander, 309 N.Y. 283, 287, 129 N.E.2d 417, 419). Section 374-a of the Civil Practice Act renders admissible only written memoranda where it is "the regular course of such business (i. e., the hospital's) to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter." (People v. Samuels, 302 N.Y. 163, 171, 96 N.E.2d 757, 761, supra, citing People v. Kohlmeyer, 284 N.Y. 366, 369, 31 N.E.2d 490, 491; Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517; Roberto v. Nielson, 288 N.Y. 581, 42 N.E.2d 27.) Unless the official report to the County Court was part of the business of the hospital, it was not more admissible under section 374-a than the statement in the hospital records relating to the events leading up to the accident in the Cox or Williams case, or by analogy of the police blotter in Johnson v. Lutz. The hospital was not charged with responsibility for making entries concerning the testimony of psychiatrists on its staff in court or their report to the court at its instance. That being so, this report is not to be regarded as having been included by defense counsel at the trial in his offer in evidence of the Bellevue Hospital records.

In rebuttal the prosecuting officer asked the psychiatrist for the People to assume the existence of these incriminating facts stated in the report to the court of the Bellevue psychiatrists concerning defendant's ability to stand trial. Moreover, in summation the prosecutor referred in detail to this report as stating that the defendant was not in a state of idiocy, imbecility or insanity or unable to prepare his case and that this indicated that he was able to understand the nature and quality of his act and that it was wrong at the time of the commission of the homicide.

Even if this report were regarded as having been offered as part of the Bellevue Hospital records, there is considerable doubt that the trial court did receive it. These bulky and voluminous hospital records were admitted with the following expressed limitations at the trial:

'Mr. Farrell: Judge, before this is read, am I to understand at the present time that everything in that record is going to be permitted?

'The Court: I don't know yet. The record has been marked in evidence. I have no way of deleting parts of that. It is impossible.

'Mr. Farrell: I appreciate that, Judge, but when the exhibit was offered in evidence, if your Honor pleases, I made no objection except, and I think I made it very clear, that as to diagnosis of doctors, I felt that the doctors should be here who made them so that I may question them, not that we just read something from a piece of paper.

'The Court: No, I'll permit this statement to go in. As they arise I'll rule on them.'

In other words, the District Attorney made clear that he was not to be bound by opinions of doctors expressed therein unless they were in court so that they might be interrogated upon the witness stand. The Judge, in effect, sustained that reservation by permitting admissibility of these items to be ruled upon as the questions arose. It would seem that in fairness this ruling extended also to the defendant in the conduct of the trial.

Concerning this it was said at the Appellate Division in the dissenting opinion of Justice Valente: 'Even if it be (true) that the defense did offer the section 870 hospital record, nevertheless timely objection was made when the People attempted to use it. That objection, in the interest of justice, should have been sustained. Everything in that record was damaging to the defendant and, if his counsel inadvertently offered it, the defendant should not have been penalized by permitting it to be used in the face of a timely objection. The trial of a criminal case is not like a chess game where once a chessman has been moved, and the hand lifted away, the move is irrevocable. Assuming that defense counsel did offer the hospital record, incident to the section 870 examination, the fact remains he realized his mistake in time and, as the People were about to act on it, he objected. The Court was not without power to prevent its use and, in the interest of justice and of a fair trial, the defense's objection should have been sustained.'

The facts concerning appellant's alleged insanity at the time of the commission of the homicide indicate that this was far from being a perfunctory defense. He had spent much of his life in mental institutions. It is likely that the defense of insanity had weight with the jury in impelling them to make the recommendation of life imprisonment which juries seldom do in case of so repulsive a crime if committed by a man believed to be sane. Juries are not likely to make recommendations of that kind in that sort of case. There is a good deal to suggest that here the jury compromised by recommending life imprisonment instead of the electric chair on account of doubt concerning his sanity. This interpretation of the jury's verdict is fortified by the question which the jury asked before reporting its...