People v. Silver

• Decision Date: 27 March 1974
• Citation: 310 N.E.2d 520,354 N.Y.S.2d 915,33 N.Y.2d 475
• Parties: , 310 N.E.2d 520 The PEOPLE of the State of New York, Respondent, v. Timothy SILVER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 915

354 N.Y.S.2d 915

33 N.Y.2d 475, 310 N.E.2d 520

The PEOPLE of the State of New York, Respondent, v. Timothy SILVER, Appellant.

Court of Appeals of New York.

March 27, 1974.

Henrietta M. Wolfgang and Nathaniel A. Barrell, Buffalo, for appellant.

Michael F. Dillon, Dist. Atty. (Judith Blake Manzella and Thomas G. Kobus, Buffalo, of counsel), for respondent.

WACHTLER, Judge.

On the complaint of his teenage daughter, the defendant was indicted and, after a jury trial, convicted of incest. On June 4, 1968, he was sentenced to Attica Prison for a period of five to eight years.

The incident occurred on Labor Day (September 5), 1966. According to the complainant the defendant had spent most of that day drinking heavily. Shortly after she retired to bed, at about 11 o'clock, the defendant entered her room, assaulted her and tried to have intercourse with her. This first attempt was unsuccessful primarily because the girl's cries summoned her mother who escorted the defendant from the room. However within the hour the defendant returned, subdued his daughter, muffled her cries with a pillow and completed the act in the presence of a younger daughter who shared the room and was able to corroborate the complainant's testimony at the trial.

The defense was insanity. The record shows that following arraignment the court found the defendant mentally unfit for trial, that he was committed, and the trial delayed, for over a year until having entered the initial stages of a remission it was determined that he was mentally competent to proceed. Prior to trial the defendant changed his plea from 'not guilty' to 'not guilty by reason of insanity' and later called Dr. Harry Faver to testify on his behalf.

Dr. Faver had been a practicing psychiatrist for over 40 years and, before returning to private practice, had been chief of psychiatry at Millard Fillmore Hospital. He had first examined the defendant about six months after the assault when, pursuant to the court's order, he and two other psychiatrists were appointed to determine the defendant's competence to stand trial. He testified that at that time the defendant was suffering from a severe schizophrenic reaction, a condition which he later stated would definitely be aggravated by the consumption of alcohol. This diagnosis was confirmed by two subsequent examinations and by a review of the defendant's psychiatric records which revealed that he had been suffering from this same illness for over 10 years. In fact on three or four occasions during the past 10 years he had been committed to mental institutions because of this affliction. Dr. Faver concluded that in September of 1966, because of this mental condition, the defendant was unable to know or appreciate the nature and quality of his acts or that they were wrong.

On cross-examination he admitted that the defendant had periods of remission during which his mental condition would improve although the illness would not be 'absolved'. Nevertheless he maintained that at the time of the initial examination the symptoms were quite manifest, indicating that the disease was well advanced and thus evident at least six months earlier during the time of the assault.

The People offered no expert testimony to rebut the defendant's evidence of insanity. Because of this the defendant claims that his guilt was not proven beyond a reasonable doubt. The People's position is that the presumption of sanity was sufficient and that there was no need for them to offer additional evidence on the issue.

These arguments raise basic questions concerning the procedural aspects of the insanity defense. The defense of insanity has had an irregular history in New York and throughout the Nation, particularly on the question as to who should have the burden of proof and what the burden entails. (See Weihofen, Mental Disorder As A Criminal Defense, pp. 212--272 (1954); Modern Status of Rules as to Burden and Sufficiency of Proof of Mental Irresponsibility in Criminal Case, Ann., 17 A.L.R.3d 146.) Under the English view, which at one time had some support in this State (see, e.g., Sellick's case 1 N.Y.City Hall Recorder 185 (1816); People v. Sprague, 2 Parker Cr.Rep. 43 (1849)), insanity is considered an affirmative defense and the burden is upon the defendant to prove his mental capacity beyond a reasonable doubt (Davis v. United States, 160 U.S. 469, 479, 16 S.Ct. 353, 40 L.Ed. 499). New York rejected this approach in 1857 in the case of People v. McCann, 16 N.Y. 58, which was apparently the first occasion this court had to consider the issue. The court disagreed however as to where the burden rested and the degree of proof to be required.

Judge Bowen felt that the well-established common-law presumption of sanity was sufficient to place the burden on the defendant to establish the defense affirmatively but only by a preponderance of the evidence--on the theory that the beyond-a-reasonable-doubt standard was intended for the defendant's protection and should only bind the prosecutor (People v. McCann, Supra, at p. 59 et seq.).

On the other hand Judge Bowen, noting that mental capacity was an element of the crime, placed the burden on the prosecutor to prove sanity beyond a reasonable doubt, the quantum necessary to overcome the presumption of innocence. Balancing the conflicting policies he concluded that the presumption of sanity was not of sufficient weight to shift the burden of persuasion to the defendant (People v. McCann, Supra, at p. 64 et seq.).

In subsequent cases this court refused to resolve the issue (People v. Schryver, 42 N.Y. 1; Flanagan v. People, 52 N.Y. 467) quite candidly admitting that they 'prefer(red) to leave it precisely where the cases cited leave it, an open question, so far as judicial authority in this State is concerned'. (Flanagan v. People, Supra, at p. 471.)

There the matter lay for over 20 years until we were confronted with a case in which the trial court had, in effect, charged the jury both ways. Under that charge "This allegation of insanity is an affirmative issue which the defendant is bound to prove" but 'if 'there is a well-founded doubt whether this man was sane at the time" he committed the act "you will acquit him" (Brotherton v. People, 75 N.Y. 159, 163 (1878)).

This time when the issue reached the court the burden was finally assigned to the prosecutor to prove the defendant's sanity beyond a reasonable doubt. 'Crimes can only be committed' the court said 'by human beings who are in a condition to be responsible for their acts, and upon this general proposition the prosecutor holds the affirmative, and the burden of proof is upon him * * * and if a reasonable doubt exists as to whether the prisoner is sane, or not, he is entitled to the benefit of the doubt, and to an acquittal' (Brotherton, supra, at pp. 162, 163). Evidently Judge Bowen's opinion in the McCann case had at last prevailed although in adopting this position the court in its decision did not refer to that or any other case.

Subsequently the Brotherton rule was consistently adhered to and reaffirmed (O'Connell v. People, 87 N.Y. 377; Walker v. People, 88 N.Y. 81; People v. Egnor, 175 N.Y. 419, 67 N.E. 906; People v. Kelly, 302 N.Y. 512, 99 N.E.2d 552) ¹ and in 1965 was expressly codified by the Legislature (Penal Law, § 30.05, subd. 2, eff. Sept. 1, 1967). Thus there is no doubt that upon the trial of the case now before us, the People had the burden of proving the defendant's sanity beyond a reasonable doubt (People v. Kelly, Supra).

Implicit in the Brotherton holding is the conclusion that the presumption of sanity is not of sufficient weight to shift the burden of persuasion to the defendant. But the presumption was not entirely cast aside. It was retained and assigned a lesser role which the court explained in a relatively brief and summary fashion: 'Sanity being the normal and usual condition of mankind, the law presumes that every individual is in that state. Hence a prosecutor may rest upon that presumption without other proof. The fact is deemed to be proved Prima facie. Whoever denies this or interposes a defense upon its untruth, must prove it; the burden, not of the general issue of crime by a competent person, but the burden of overthrowing the presumption of sanity and of showing insanity, is upon the person who alleges it, and if evidence is given tending to establish insanity, then the general question is presented to the court and jury, whether the crime, if committed, was committed by a person responsible for his acts, and upon this question the presumption of sanity, and the evidence, are all to be considered, and the prosecutor holds the affirmative, and if a reasonable doubt exists as to whether the prisoner is sane, or not, he is entitled to the benefit of the doubt, and to an acquittal.' (Brotherton v. People, Supra, 75 N.Y. at pp. 162--163.)

This basic concept was reaffirmed and summarized in subsequent opinions (see, e.g., O'Connell v. People, 87 N.Y. 377, Supra; Walker v. People, 88 N.Y. 81, Supra; People v. Egnor, 175 N.Y. 419, 429, 67 N.E. 906, 908, Supra) and the presumption itself was for a time made a statutory one (former Penal Law, § 815). But the precise meaning of this aspect of the Brotherton case--fixing the initial burden of coming forward with evidence of insanity--is not nearly as well settled in this State as is the primary holding concerning the ultimate burden of persuasion.

The fact that this approach has spread to other jurisdictions and has been discussed by scholarly commentators is not particularly enlightening for the results have been diverse almost to the point of chaos. (Ann., Op. cit., 17 A.L.R.3d 146.)

Confusion exists even on the most fundamental question as to the reason for the presumption. In Professor Weihofen's view it is a 'statistical generalization about most human beings. It is only a lawyer's way of saying that there are a lot more sane people...