author: Meyer, J. Simons, J.

text:
    The People of the State of New York, Respondent, v Joseph G. Christopher, Appellant.
    Argued March 27, 1985;
    decided July 5, 1985
    POINTS OF COUNSEL

      John A. Ziegler and Rose H. Sconiers for appellant.
    I. Appellant was denied compulsory process, due process of law and equal protection of the law when the court refused defense counsel an opportunity to present expert psychiatric testimony at the second competency hearing. (Bishop v United States, 350 US 961; Pate v Robinson, 383 US 375; Jenkins v McKeithen, 395 US 411; Morgan v United States, 304 US 1; Baltimore & Ohio

      R.R. Co. v United States, 298 US 349; Pate v Smith, 637 F2d 1068; Fuentes v Shevin, 407 US 67; Armstrong v Manzo, 380 US 545; Grannis v Ordean, 234 US 385; Washington v Texas, 388 US 14.) II. Appellant’s right to trial by jury was violated when the court below accepted the written jury waiver without establishing that such waiver was knowing, intelligent and voluntary, or that he was fully aware of the consequences. (Johnson v Zerbst, 304 US 458; Patton v United States, 281 US 276; Adams v United States ex rel. McCann, 317 US 269; Schneckloth v Bustamonte, 412 US 218; Duncan v Louisiana, 391 US 145; United States v David, 511 F2d 355; Faretta v California, 422 US 806; People v Mitchell, 61 NY2d 580; People v Kaltenbach, 60 NY2d 797; People v White, 56 NY2d 110.) III. The trial court erred when it upheld invalid search warrants issued without probable cause, and further, when it refused to hold a hearing on the affiant’s false and misleading statements used in support of the warrants. (Franks v Delaware, 438 US 154; Sgro v United States, 287 US 206; Durham v United States, 403 F2d 190; People v Loewel, 50 AD2d 483; Zurcher v Stanford Daily, 436 US 547; People v Teribury, 91 AD2d 815; Berger v New York, 388 US 41; People v Rainey, 14 NY2d 35; People v Baker, 23 NY2d 307; Coolidge v New Hampshire, 403 US 443.) IV. Appellant’s right to a fair trial was denied when the prosecution failed to provide favorable firearms evidence prior to trial and the court refused to grant a mistrial or adjournment in order that the defense would have reasonable opportunity to utilize this evidence. (Brady v Maryland, 373 US 83; United States v Agurs, 427 US 97; People v Consolazio, 40 NY2d 466; Giles v Maryland, 386 US 66; People v Simmons, 36 NY2d 126; United States ex rel. Meers v Wilkins, 326 F2d 135; Matter of Kapatos, 208 F Supp 883; Grant v Alldredge, 498 F2d 376.) V. The court below erred by permitting testimony of witnesses regarding privileged communications with appellant, which were statutorily protected. (Perry v Fiumano, 61 AD2d 512; People v Al-Kanani, 33 NY2d 260; Volkman v Miller, 52 AD2d 146, 41 NY2d 946; Matter of Lynch, 68 Misc 2d 78; Mayer v Albany Med. Center Hosp., 56 Misc 2d 239; People v Bartholomew, 73 Misc 2d 541; Nelson v Village of Oneida, 156 NY 219; Edington v Aetna Life Ins. Co., 77 NY 564; Matter of City Council of City of N. Y. v Goldwater, 284 NY 296; People v Decina, 2 NY2d 133.) VI. Appellant’s April 26,1981 statement to Aldrich Johnson was not spontaneous as a matter of law and was obtained in violation of appellant’s right to counsel and right to remain silent, as guaranteed by the New York State and United States Constitutions. (People v Lanahan, 55 NY2d 711; People v Lucus, 53 NY2d 678; People v Stoesser, 53
      NY2d 648; People v Anderson, 42 NY2d 35; People v Maerling, 46 NY2d 289; People v Rivers, 56 NY2d 476; People v Townes, 41 NY2d 97; People v Roberson, 41 NY2d 106; Miranda v Arizona, 384 US 436; People v Chapple, 38 NY2d 112.) VII. There is insufficient evidence as a matter of law to support the convictions under counts 2 and 3 of this indictment and therefore they must be dismissed. (Jackson v Virginia, 443 US 307; In re Winship, 397 US 358; People v Molineux, 168 NY 264; People v Burke, 62 NY2d 860; People v Bretagna, 298 NY 323; People v Way, 59 NY2d 361; People v Barnes, 50 NY2d 375; People v Cleague, 22 NY2d 363; People v Benzinger, 36 NY2d 29; People v Kennedy, 47 NY2d 196.) VIII. The lower court abused its discretion as a matter of law when it denied the motion, pursuant to CPL 200.20 (3), for severance of the three second degree murder counts contained in the indictment. (People v Molineux, 168 NY 264; Drew v United States, 331 F2d 85; People v Yuk Bui Yee, 94 Misc 2d 628; People v Payne, 35 NY2d 22; People v Fisher, 249 NY 419; People v Stanley, 81 AD2d 842.)

      Richard J. Arcara, District Attorney (John J. DeFranks, Jo W. Faber and Rosemarie A. Wyman of counsel), for respondent.
    I. Defendant was not denied an opportunity to present evidence at the second competency proceeding wherein the court properly refused to order additional psychiatric examinations. In any event, the record in its entirety establishes defendant’s competency for trial. (Johnson v Harris, 682 F2d 49; People v Cona, 49 NY2d 26; Dusky v United States, 362 US 402; People v Hudson, 19 NY2d 137.) II. The jury trial waiver was properly accepted by the court. (People v Davis, 49 NY2d 114.) III. The search warrant was validly issued upon probable cause and properly executed by law enforcement officials. (United States v Harris, 403 US 573; Brinegar v United States, 338 US 160; United States v Brinklow, 560 F2d 1003, 434 US 1047; People v Teribury, 91 AD2d 815; United States v Johnson, 461 F2d 285; People v Alexanian, 76 AD2d 187, 54 NY2d 725; People v King, 61 NY2d 969; People v Warren, 61 NY2d 886.) IV. There existed no favorable firearms evidence to which defendant was entitled prior to trial, nor was it error for the court to allow both firearms examiners to testify. (Brady v Maryland, 373 US 83; People v Rosario, 9 NY2d 286; People v Strong, 60 AD2d 792; People v Gissendanner, 48 NY2d 543; People v Jones, 44 NY2d 76; People v Geaslen, 54 NY2d 510; Grant v Alldredge, 498 F2d 376.) V. Testimony regarding defendant’s admissions to Military Guard Christopher Corwin, Army Nurses Bernard Burgess and Dorothy Anderson and Army Chaplain Michael Freeman was properly received at trial. (People v Krom, 61 NY2d 197; People v

      Warren, 61 NY2d 886; People v Newman, 32 NY2d 379; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Bernstein v Lore, 59 AD2d 650; People v Al-Kanani, 33 NY2d 260; Matter of Vanderbilt [Rosner — Hickey], 57 NY2d 66; Matter of Priest v Hennessy, 51 NY2d 62; Matter of Camperlengo v Blum, 56 NY2d 251; People v Smith, 59 NY2d 156.) VI. Defendant’s April 26,1981 admissions to Captain Aldrich Johnson did not result from any custodial interrogation but were spontaneous as a matter of law and, as such, were properly received into evidence. (Miranda v Arizona, 384 US 436; People v Krom, 61 NY2d 187; People v Harrison, 57 NY2d 470; People v Maerling, 46 NY2d 289; People v Williamson, 51 NY2d 801; People v Kaye, 25 NY2d 139; Rhode Island v Innis, 446 US 291; People v Rivers, 56 NY2d 476; People v Tanner, 30 NY2d 102; People v Chappie, 38 NY2d 112.) VII. The court’s verdict finding defendant guilty of the three murders charged was supported by legally sufficient evidence. (People v Allweiss, 48 NY2d 40; People v Molineux, 168 NY 264; People v Ventimiglia, 52 NY2d 350; People v Condon, 26 NY2d 139; People v Brown, 24 NY2d 168.) VIII. The court below did not abuse its discretion in denying defendant’s motion for severance. (People v Lane, 56 NY2d 1; People v Brown, 24 NY2d 168.)
   OPINION OF THE COURT

Meyer, J.

A defendant found to lack capacity to participate in his own defense and committed for care and treatment, who is thereafter determined by the superintendent of the institution to which committed to be no longer incapacitated, has the right to present expert testimony during the hearing held pursuant to CPL 730.30 (2) following the superintendent’s report. Nothing in CPL 730.30 (2) or 730.60 (2) authorizes the hearing court to refuse to hear expert testimony other than that of the psychiatrist in charge of defendant during his confinement, nor is it material that defendant himself opposes the demand of his attorneys for such a hearing. The order of the Appellate Division should, therefore, be reversed and the matter remitted to Supreme Court, Erie County, for a new hearing to ascertain defendant’s capacity to assist in his own defense and, if he is found to have such capacity, for a new trial on all three counts of murder in the second degree of which he was convicted.

I

Defendant was convicted after a bench trial of murdering three black males in the 26-hour period between 10:00 p.m. on September 22,1980 and midnight on September 23,1980 on the east side of Buffalo. His conviction has been affirmed by the Appellate Division in a thorough and thoughtful opinion (101 AD2d 504), to which reference is made as to the facts of the killings, the pretrial proceedings and the claimed trial errors. We agree with the conclusions reached in that opinion other than (1) its holding that the hearing judge did not err in refusing to allow introduction by the defense of expert testimony at the second (March 16, 1982) hearing concerning defendant’s capacity to assist in his own defense, and (2) its reasoning as to the sufficiency of the evidence concerning the second (Green) and third (Thomas) murders.

II

Much of the problem with respect to defendant’s right to introduce psychiatric testimony at the second hearing stems from the fact that defendant himself opposed his attorneys’ efforts to have a hearing at all, it being his view that there was no question about his capacity to participate in his defense. Whatever may be the right of a criminal defendant represented by counsel to make the ultimate determination of trial strategy (cf. Dearinger v United States, 344 F2d 309 [defendant entitled to insist, against counsel’s advice, that particular witnesses be called]), it does not include the right to waive a hearing concerning capacity which counsel has requested. This necessarily follows from the self-contradiction involved in recognizing that a defendant whose capacity is in issue has the capacity to waive a hearing concerning his capacity (Pate v Robinson, 383 US 375, 384).

Here, the hearing judge, after the first hearing during which the reporting psychiatrists disagreed concerning defendant’s ability to participate in his defense, found him incapacitated and on December 16, 1981, committed him to the Mid-Hudson Psychiatric Center for treatment and care. On February 23, 1982, the superintendent of that institution certified that defendant was no longer incapacitated. Defendant’s attorneys then moved for a hearing, and a prehearing conference made clear that what they sought was not an order of examination pursuant to CPL 730.30 (1) but the appointment of psychiatrists to assist in the defense, to testify at the hearing and to help prepare the cross-examination. The hearing judge denied the application, stating that what counsel sought was the same hearing previously held and that he would hear only the psychiatrists whose opinions underlay the superintendent’s report.

Counsel demurred to the latter suggestion and stated that formal application would follow. That application, made on the affidavit of one of defendant’s attorneys which called attention to testimony at the first hearing concerning defendant’s inflexibility in his inability to cooperate with counsel, recited that in discussion since defendant’s return to Buffalo the same intransigence continued, asked in view of defendant’s indigency for authority to obtain the services of psychiatrists as experts for the assistance of the defense and emphasized the due process and other constitutional violations that would otherwise result. It was accompanied by a proposed form of order which made specific reference to County Law § 722-c, which provides for the furnishing of services of others than attorneys for indigent defendants. At the argument of that motion the defendant objected to a hearing, as did the prosecutor. The judge resolved the dilemma by ordering the hearing on his own motion, but reserved decision on the request of defendant’s attorneys for appointment of psychiatrists until conclusion of the testimony of the Mid-Hudson psychiatrist who has been in charge of defendant after he was committed there for care and treatment.

After conclusion of that testimony, the motion for appointment of psychiatrists was denied, the judge stating again that he construed the application as one for further examination under CPL 730.30 (1). Defense counsel then offered to pay the psychiatrists from their own funds, but the judge ruled that to be no more than a backdoor approach to a third round of psychiatric tests. That interpretation and ruling were reiterated on the next hearing date. The judge’s ultimate decision, that the defendant was not an incapacitated person and that the criminal trial should proceed, was, therefore, made without hearing any psychiatric evidence from the defense.

The Appellate Division held that there nevertheless was no denial of due process because the hearing having been held on the court’s own motion, limitation of expert testimony produced at the hearing was reasonable; because CPL 730.60 (2) does not mandate a full adversary hearing; because it interpreted the last sentence of CPL 730.30 (2) to provide for a limited initial hearing followed by a further hearing at which other psychiatrists would be allowed to testify; because defense counsel had the opportunity to cross-examine the Mid-Hudson doctor; and because the court in reaching its second hearing decision considered the testimony of the three psychiatrists who testified on behalf of defendant at the first hearing.

That reasoning, and the reasons given by the hearing judge for denying defense counsel’s request, misconstrue the governing statutes. CPL 730.60 (2) provides that when the superintendent of the institution in which defendant is confined determines that defendant is no longer an incapacitated person he must so notify the court and the District Attorney in writing, and that: “The court must thereupon proceed in accordance with the provisions of subdivision two of section 730.30 of this chapter; provided, however, if the court is satisfied that the defendant remains an incapacitated person, and upon consent of all parties, the court may order the return of the defendant to the institution in which he had been confined for such period of time as was authorized by the prior order of commitment or order of retention.” CPL 730.30 (2), which deals with an order of examination as to capacity before an order of commitment issues (see, CPL 730.40, 730.50), provides that: “When the examination reports submitted to the court show that each psychiatric examiner is of the opinion that the defendant is not an incapacitated person, the court may, on its own motion, conduct a hearing to determine the issue of capacity, and it must conduct a hearing upon motion therefor by the defendant or by the district attorney. If no motion for a hearing is made, the criminal action against the defendant must proceed. If, following a hearing, the court is satisfied that the defendant is not an incapacitated person, the criminal action against him must proceed; if the court is not so satisfied, it must issue a further order of examination directing that the defendant be examined by different psychiatric examiners designated by the director.” But, if the Appellate Division’s construction of the concluding clause of that provision is correct, not only a defendant returned for a second hearing after prior commitment for observation, but also a defendant whose capacity is first put in issue, would have no right in the initial hearing held pursuant to the section to present psychiatric testimony on his own behalf. He could do so only after the court, not being satisfied following the initial hearing that defendant is not incapacitated, ordered additional examination by psychiatric examiners designated by the director, which would be an absurd result. It would also be wholly inconsistent with the wording of the statute which provides in its first sentence that the court “must conduct a hearing upon motion therefor by defendant” (emphasis supplied), and with the memorandum of the Senator who sponsored the 1981 amendment which added to CPL 730.60 (2) the sentence quoted above. That memorandum stated flatly that: “This bill ensures that the court, the district attorney and the defendant retain the right to contest the determination of the department.” (1981 NY Legis Ann, at 423, 424 [emphasis supplied]). To say that defendant is ensured the right to a hearing and to contest a psychiatric determination but may not present psychiatric testimony is a contradiction in terms.

Moreover, the statutory requirement was not met by the hearing judge’s review of the testimony of psychiatrists who testified at the initial hearing. That testimony, the judge found, was insufficient to establish defendant’s competence to stand trial but, in any event, the issue on the second hearing was defendant’s capacity at that time, not several months before. Had defendant been permitted to present psychiatric testimony, it may have varied from that of the Mid-Hudson psychiatrist eyen more drastically than had been the difference between them on the first hearing.

It is, furthermore, the People’s.burden to establish defendant’s coippetence to proceed (People v Santos, 43 AD2d 73; see, People v Silver, 33 AD2d 475). If the proof submitted through the Mid-Hudson psychiatrist be deemed sufficient to shift the burden of going forward on that issue to defendant, still as Chief Judge Cardozo (as he then was) observed in Matter of Reilly v Berry (250 NY 456, 461), “a defendant may be at an unfair disadvantage if he is unable * * * to parry by his own witnesses the thrusts of those against him.” Nothing in the statutory reference to a “hearing,” or in its provision for a hearing on the court’s own motion, suggests that defendant was to be disadvantaged at that juncture by being denied the assistance of a psychiatrist. As we have noted in People v Richetti (302 NY 290, 297), “A ‘hearing’ or ‘trial’ of * * * an issue of fact is an empty form unless it takes place * * * with the right, on each side, to examine and cross-examine.”

No more so is there basis in the statute or in the record for the hearing judge’s denomination of the motion made by defendant’s counsel, who clearly and repeatedly argued that they sought only the assistance of expert psychiatrists and ultimately offered to pay the costs involved themselves, as one for a third round of psychiatric examination. Nor is it material that there was an adjournment between hearing and trial during which counsel might have consulted and retained expert assistance at their own expense for by that time the hearing judge had ruled that he would neither appoint psychiatrists at court expense nor hear psychiatrists retained at defendant’s attorneys’ expense.

Nor finally can it avail the People, as they argue, that the evidence before the hearing judge was legally sufficient or that the introduction of expert testimony is generally a matter of the court’s discretion. How many experts will be heard will in most circumstances be a matter of discretion, but, as already noted, th^ refusal to hear any expert witness on behalf of defendant is a violation of the statutory requirement, not a matter of discretion. And the statutory right to oppose the testimony presented against him having been violated, it is simply irrelevant that the unopposed testimony was legally sufficient. The issue is not whether the People presented enough evidence but whether defendant was prevented from contesting as the statute ensured; under the statute defendant’s right to present evidence in opposition is not subject to the unfettered discretion of the hearing judge._

Because the psychiatric assistance that can be provided at a new hearing will relate to defendant’s present condition, rather than his capacity at the time of the second hearing held without such assistance, a new hearing will not provide him with the safeguards he was entitled to at the time of the second hearing (cf. People v Hudson, 19 NY2d 137,140). There must, therefore, be a reversal and a remand for a new hearing as to defendant’s present capacity, followed, if he is found capable to proceed, by a new trial (Dusky v United States, 362 US 402).

Ill

Whether that new trial, if it occurs, will be only as to the Dunn murder or as to the Green and Thomas murders as well turns on the legal sufficiency of the evidence presented as to the latter two. Defendant attacks the legal sufficiency of the evidence as to them on a number of bases. He argues first that the testimony of Robert Oddo, who identified defendant as the perpetrator of the Dunn murder, was inconclusive and, therefore, an insufficient predicate as “other crime” evidence on the issue of identity under the Molineux rule (People v Molineux, 168 NY 264), because Oddo did not identify defendant at the lineup, testifying at the trial that initially he did not want to get involved. The argument cannot help defendant, however, for he was identified not only by Oddo but by Madonna Gorney as well, who passed within an arm’s length of him just prior to the Dunn murder and positively identified him at the trial.

Defendant contends also that the Trial Judge committed himself, without objection from the prosecution, to render a verdict on each count separately and weigh and assess the evidence as it applied to each count separately and that it was, therefore, impermissible for the Appellate Division to use the Dunn “other crime” evidence to identify defendant as the perpetrator of the other two murders. The Trial Judge’s statement was related to defendant’s counsel’s objection to the prosecutor’s theory that the crimes were connected because all the victims were black, and the impropriety of using guilt of one crime to establish guilt of another. It cannot properly be read, however, as a commitment not to consider evidence properly admissible on the issue of identity under the Molineux rule (see, People v Beam, 57 NY2d 241; People v Allweiss, 48 NY2d 40). Here there is more than the race of the victims to make the evidence probative of identity: the short space of time in which the three murders occurred, the unprovoked nature of each, the facts that they occurred in the same general geographical area, that the same type of weapon was involved in each and that defendant owned such a weapon.

Moreover, the expert testimony, based on the shell casings found at each murder site and at other places frequented by defendant, that the same gun was used in all three killings, considered together with the “other crime” identity evidence and defendant’s admissions that he had killed many people in Buffalo, some using a .22 caliber weapon, constituted sufficient evidence to present a jury issue with respect to the other two murders.

For the foregoing reasons, the order of the Appellate Division should be reversed and the matter remitted to Supreme Court, Erie County, for further proceedings in accordance with this opinion.

Simons, J.

(dissenting). The majority find nothing in CPL 730.30 (2) or 730.60 (2) which “authorizes the hearing court to refuse” defendant the right to submit partisan psychiatric testimony to controvert the diagnosis, made by doctors of the State institution in which he had been held for observation, that he was no longer an incapacitated person. They hold, therefore, that the court’s refusal to hear such evidence constituted reversibly error. I can find nothing in the statute or which can be implied from it which grants defendant an absolute right to submit such evidence and, therefore, I assume that the Legislature intended to commit the matter to the discretion of the hearing court. Inasmuch as the record establishes convincingly that the court properly exercised its discretion, I dissent and would affirm the judgment.

Defendant was charged with three counts of second degree murder arising out of the much publicized and apparently racially motivated killing of three black men in the City of Buffalo in September 1980. He was arraigned on May 11, 1981 and at that time the court ordered a psychiatric examination pursuant to CPL art 730. Two psychiatrists, Drs. Molnar and Wadsworth, examined him and found him fit to proceed. The case was reached for trial the following fall. On October 20,1981, the day before jury selection was to start, counsel announced that defendant had decided not to invoke an insanity defense. He advised the court that he and defendant’s court-appointed psychiatrist had fully explained the options to defendant and that in counsel’s opinion defendant was competent to make that decision. Jury selection commenced the next day. During voir dire defendant, against the wishes of his attorney, moved to waive a jury and proceed by bench trial. Counsel then changed his position on his client’s competency and contended that he was not fit to proceed, apparently believing that defendant was competent to proceed before a jury but not competent to proceed before a judge without a jury. Counsel’s ambivalence became even more apparent, the court noted, when he subsequently agreed to withdraw his claim of incompetency if the court would deny defendant’s motion to waive a jury. At this point the court ordered a further psychiatric examination solely to determine if defendant was competent to waive a jury. After reexamination, Dr. Molnar continued to believe defendant was fit to proceed but Dr. Wads-worth changed his earlier diagnosis and held that he was not. The court then ordered a full psychiatric reexamination pursuant to CPL 730.30 (1). Three additional doctors were appointed and examined defendant. They too disagreed on his fitness to proceed. On this state of the record, finding the evidence “exceedingly close”, the court ruled that the People had not met their burden of proving competence by a preponderance of the evidence and ordered defendant committed to Mid-Hudson Psychiatric Center for observation (see, CPL 730.40 [1]).

defendant was returned to court two months later, certified by the superintendent of Mid-Hudson as competent to stand trial. After speaking with defendant, however, his counsel advised the court that defendant was no different than he had been earlier and he requested further psychiatric examinations and a hearing. Defendant adamantly opposed his counsel’s request and urged immediate trial. The court settled the dispute by ordering a hearing on the report certifying defendant. One of the three psychiatrists who had treated defendant at Mid-Hudson, Dr. Chellappa, was called to testify. It is this hearing and the court’s rulings during it which present the issue which divides the court on this appeal.

Before and during the hearing, defense counsel requested that the four psychiatrists who had previously testified that defendant was not fit to proceed reexamine defendant and testify in opposition to Dr. Chellappa. Counsel offered no reason why reexamination was required except for conclusory assertions that defendant failed to cooperate with him and the speculation that further examinations might develop evidence of incapacity. The court reserved decision on the request while it heard the testimony of Dr. Chellappa but it did not foreclose defendant or his counsel from cross-examining the doctor nor did it foreclose them from offering additional evidence. At the conclusion of the hearing, the court decided that it had sufficient evidence before it to determine the matter and that no further psychiatric evidence was necessary. It therefore denied counsel’s motion and ruled that defendant was fit to proceed to trial.

Specifically, the court had before it the expert opinions of 11 different doctors who had made psychiatric evaluations of defendant (Drs. Molnar and Wadsworth had evaluated him twice). All of them believed defendant was competent to understand the proceedings; they disagreed on whether he was able to assist in his defense. Those who believed he could not based their opinions in part upon a diagnosis that he was suffering from a mental disease, paranoia, and the fact that he failed to cooperate witjh his lawyers or with the examiners. That conduct was not necessarily irrational, however; defendant insisted that he was competent to proceed and he insisted, contrary to his lawyer’s adyice and for reasons he expressed with considerable logic, that he stood a better chance of acquittal before a judge than before a jury. Indeed, believing he was competent, defendant even had instituted a pro se habeas corpus proceeding seeking release from Mid-Hudson Psychiatric Center and return for trial and he had presented psychiatric evidence in that proceeding which supported his claim. Also to the point, the court noted that when defendant had appeared before it in several proceedings during the preceding year he was always alert and fully oriented and that he had participated in the proceedings, appeared to understand them and had suggested questions to his lawyers concerning matters they could not otherwise know of.* Insofar as defendant may have been disadvantaged at the second hearing by any claimed lack of psychiatric assistance, the court noted that it had previously appointed a psychiatrist to aid defendant at State expense, that the psychiatrist had appeared with defendant and his lawyer during earlier examinations, had advised them at the hearing thereafter and that he was still available to assist him. Although counsel contends otherwise, there is nothing before us to indicate that that psychiatrist was unavailable or that his assistance was inadequate and the majority do not rest their reversal on defendant’s lack of psychiatric assistance in,conducting the hearing or cross-examining Dr. Chellappa. Indeed, counsel has not identified a single instance during the hearing or the trial in which arguably defendant was hampered or prejudiced by the court’s decision to proceed.

The narrow issue dividing the court on this appeal is whether the court erred in denying defendant’s application to retain psychiatrists, either at State expense or at his own expense, to examine him and testify in opposition to the doctor from Mid-Hudson Psychiatric Center after defendant was returned from that institution. The majority find that he had a statutory right to submit such evidence.* *

CPL 730.30 sets forth a comprehensive scheme for determining whether a defendant is an incapacitated person within the definition of the statute (CPL 730.10 [1]). Subdivision 1 provides for an order of examination when the court determines that defendant may be an incapacitated person, subdivisions 2,3 and 4 provide for various procedures after examinations have been completed depending upon the results of those examinations and the court’s view on the issue of incapacity. In this case, the court had determined that examinations were required and ordered them pursuant to subdivision 1 and it had already held hearings at which the examiners testified and the court evaluated their findings. The propriety of those hearings is not before us. The hearing in question is the hearing held after defendant had been returned to court from Mid-Hudson Psychiatric Center, certified as fit to stand trial by the superintendent.

CPL 730.60 (2) provides that when a defendant has been returned to court after a period of observation, certified as fit to proceed, his procedural rights shall be governed by CPL 730.30 (2). That section provides: “2. When the examination reports submitted to the court show that each psychiatric examiner is of the opinion that the defendant is not an incapacitated person, the court may, on its own motion, conduct a hearing to determine the issue of capacity, and it must conduct a hearing upon motion therefor by the defendant or by the district attorney. If no motion for a hearing is made, the criminal action against the defendant must proceed. If, following a hearing, the court is satisfied that the defendant is not an incapacitated person, the criminal action against him must proceed; if the court is not so satisfied, it must issue a further order of examination directing that the defendant be examined by different psychiatric examiners designated by the director.” The relevant provision is the first sentence which authorized the court to hold the hearing. It gives no guidance on the nature of the hearing but manifestly it was designed to aid the court in evaluating the report of the institution’s doctor. If the court is not satisfied with the doctor’s report and testimony after the hearing, the statute authorizes it to order another round of examinations, but nothing in the subdivisions grant defendant the right to submit additional psychiatric evidence in opposition to the doctor’s diagnosis. The court was satisfied with the evidence after this hearing and there was no need for it to hear additional psychiatric evidence or to order a fourth round of examinations. Accordingly, it ordered the criminal action to proceed. In holding it was bound to hear additional psychiatric evidence, the majority rely upon the last sentence of subdivision 2 but that refers to proceedings “following a hearing.” But that language does not govern the procedure during the hearing after defendant’s return or grant him the right to submit additional psychiatric evidence at it. The purpose of the hearing was to test the certification. It was only a part of the proceedings conducted pursuant to CPL 730.30, and the court’s decision after it was concluded was based not only on the evidence presented at that hearing but also upon all the evidence in the record of the criminal action, the prior article 730 proceedings and the report of defendant’s doctor in the habeas corpus proceeding.

Any doubt about this interpretation was removed by the reasons which prompted the 1981 amendment to section 730.60 (2). Originally the section provided that when a defendant had been found incapacitated and confined to a State institution and the superintendent of the institution thereafter certified that he was no longer incapacitated, the defendant was to be returned to court and “the criminal action against him must proceed.” Some lawyers and judges apparently found this language ambiguous and construed it to mean that the court had no authority to reject the superintendent’s certification. Accordingly, the statute was amended by deleting the quoted section and providing that when a defendant was returned from the hospital and certified as fit to proceed, the court “must thereupon proceed in accordance with the provisions of subdivision two of section 730.30” (L 1981, ch 791). The sponsor’s memorandum explained: “Criminal Procedure Law: § 730.60. The purpose of this bill is to ensure that a Superintendent of a Mental Hygiene Facility may not overrule a court’s determination on the issue of capacity. There currently is an ambiguity on the question of whether a court is bound to accept the determination of the department on the crucial question of a defendant’s mental fitness to proceed in a criminal case. People v. Rodriques [sic], Supreme Court, New York County (1980), highlights this ambiguity. Although a defendant is currently entitled to a capacity hearing after an initial psychiatric examination current language in § 730.60(2) does not explicitly state that he is so entitled after a temporary order of observation or an order to commitment or retention. This bill ensures that the court, the district attorney and the defendant retain the right to contest the determination of the department. Passage of this bill will prevent the mental hygiene department from making a determination of a defendant’s capacity without the court system’s assent. Since the Court has made an initial determination on a defendant’s capacity, it should have the opportunity to conduct a new hearing before accepting the department’s findings” (1981 NY Legis Ann, at 423-424).

Thus the purpose of the amendment was not to grant a defendant a wide ranging adversarial hearing at which he could introduce partisan opinion evidence in opposition to the superintendent’s report. Indeed, that interpretation is contrary to the statute’s requirement that neutral psychiatric examiners be used (see, CPL 730.10 [2], [5], [7]). It was intended to clarify the statutory authority permitting the court to require the superintendent or the institution’s doctors to testify in support of the superintendent’s diagnoses, to reevaluate its ruling on the basis of that evidence and to order a further examination thereafter if it determined that one was required. In short, the amendment sought to insure that the court, not the superintendent of the hospital to which defendant was confined, would determine whether defendant was an incapacitated person (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, CPL 730.60, p 304).

This interpretation is confirmed further by a report made by a committee of the Association of the Bar of New York City (see, Mental Illness, Due Process and the Criminal Defendant, Second Report and Additional Recommendations of the Assn of Bar of New York City [1968]). The bill jacket for the original statute indicates that much of article 730 was patterned after recommendations in the report (see, Legis Bill Jacket, L 1970, ch 996). The report notes the concern of the committee that the court should feel free to reject the superintendent’s report and conduct further examinations if it felt them warranted (id., at 85). The 1981 amendment became necessary after the meaning of the statute had been questioned in a specific case in which the prosecutor had contended that CPL 730.60 (2) did not permit the defendant to challenge the superintendent’s certification (see, People v Rodriguez, 79 AD2d 576, dissent of Murphy, P. J., at p 578; see also, Legis Bill Jacket, L 1981, ch 791, Memorandum of Arnold D. Hechtman to John G. McGoldrick dated June 29, 1981). Nothing in the amendment or its history, however, suggests that the Legislature intended by it to expand defendant’s rights under the original statute.

It is also worth noting that this analysis of the statute is consistent with the historical development of capacity hearings. At common law, an incompetent accused could not be brought to trial (Youtsey v United States, 97 F 937,940-946; see also, Bishop v United States, 350 US 961). The law distinguished between defendants who lacked the mens rea to commit the crime because they were insane at the time of the offense and those lacking the capacity to defend because incapacitated at the time of trial. The rule, then as now, held that although a defendant may well have been insane at the .time of the crime and also at the time of trial, he could be prosecuted if he understood the nature of the proceedings and was able to assist in his own defense. If he was incapacitated at the time of trial, the proceedings could not continue (see, Freeman v People, 4 Denio 9, 27).

The court possessed broad discretion to determine whether to inquire into defendants’ capacity (see, People v Smith, 3 NY2d 184, 186; People v Nickerson, 1 NY2d 815) and whether to impanel a jury or to decide the issue itself (Weihofen, Mental Disorder as a Criminal Defense, at 429, 445-447). If it was satisfied from its own observations that there was no basis to question defendant’s capacity, he was not entitled to a hearing (People v McElvaine, 125 NY 596; see also, People v Esposito, 287 NY 389). On appeal, the Trial Judge’s competency ruling was sustained unless found to be clearly arbitrary (see, Freeman v People, supra; Comment, The Effect of the New York Criminal Procedure Law upon the Treatment of the Mentally Incompetent Defendant, 20 Buffalo L Rev 646, 647). The former Code of Criminal Procedure similarly granted the trial court broad discretion in determining capacity (Code Crim Pro §§ 658, 662-a, 662-c).

Our present practice is derived from these rules. Subject to specific statutory limitations, the court retains broad discretion to decide capacity issues based upon its own observations and, if examination is required, upon its evaluation of evidence of neutral psychiatric examiners (see, People v Rodriguez, 79 AD2d 576, affd 56 NY2d 557, supra; CPL 730.10 [5], [7]; cf. former Code Crim Pro § 659; 18 USC § 4244). The defendant’s incapacity must be the result of mental disease or defect (CPL 730.10 [1]) but the determination of his capacity is a judicial determination, not a medical one (see, Comment, Incompetency to Stand Trial, 81 Harv L Rev 454, 470; Comment, 20 Buffalo L Rev 646, 651-652; Cooper, Fitness to Proceed, A Brief Look at Some Aspects of the Medico-Legal Problem Under the New York Criminal Procedure Law, 52 Neb L Rev 44, 53, 67; Pizzi, Competency to Stand Trial in Federal Courts: Conceptual and Constitutional Problems, 45 U of Chi L Rev 21, 54-55). Thus, the statute restricts the reports of the examiners to information necessary for the court’s decision (see, CPL 730.10 [8]; see also, Mental Illness, Due Process and the Criminal Defendant, Second Report and Additional Recommendations of Assn of Bar of New York City, at 85 [1968]) and, significantly, under the various alternatives provided in CPL 730.30 the opinions of the psychiatrists are not binding on the court.

The dispositive issue always is defendant’s ability to function at the trial and although psychiatric evidence is required once the defendant’s capacity is questioned, resolution of the question is not necessarily aided by multiple examinations or additional psychiatric testimony because the psychiatrists’ orientation is therapy; they have little familiarity with criminal prosecutions. The court is familiar with the procedures and dynamics of a criminal prosecution, however, and it can best assess the defendant’s mental capacity against the specific demands the trial may make upon him. In the final analysis, it must decide whether defendant can understand the proceedings and, with a “modicum of intelligence”, assist counsel (People v Francabandera, 33 NY2d 429, 435-436).

In sum, absent an explicit controlling statutory direction, the determination to order further examinations or to receive additional psychiatric evidence is one that rests now, as it always has, in the sound discretion of the hearing court. Its decision on the matter, absent clear error should be upheld. Under similar circumstances, this court (see, People v Rodriguez, 79 AD2d 576, affd 56 NY2d 557, supra; see also, People v Esposito, 287 NY 389, supra) and several Federal courts, interpreting a similar statute (18 USC § 4244), have held that a defendant does not have a right to seek repeated mental examinations and that the denial of his request for such examinations or to offer expert psychiatric testimony on his mental condition at a hearing, unsupported by legitimate reasons for doing so, does not constitute an abuse of discretion (Ruud v United States, 347 F2d 321, cert denied 382 US 1014; United States v Cook, 418 F2d 321; United States v Maret, 433 F2d 1064; cert denied 402 US 989; United States v Valtierra, 467 F2d 125; see, Pizzi, Competency to Stand Trial in Federal Courts: Conceptual and Constitutional Problems, 45 U of Chi L Rev 21, 54-57). That discretionary power controls the result in this case and requires an affirmance of defendant’s conviction.

Chief Judge Wachtler and Judges Kaye and Alexander concur with Judge Meyer; Judge Simons dissents and votes to affirm in a separate opinion in which Judge Jasen concurs; Judge Titone taking no part.

Order reversed, etc.

      . Pate held the defense of incompetence to stand trial not waived by defendant, noting that “it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial” (383 US, at p 384) and that “[w]hile Robinson’s demeanor at trial might be relevant to the ultimate decision * * * it cannot be relied upon to dispense with a hearing” (383 US, at p 386).

      . What the dissent characterizes as “conclusory assertions that defendant failed to cooperate” (dissenting opn, at p 428) is contained in paragraph 8 of the affidavit, which reads: “I have spent in excess of four hours with Mr. Christopher since his return to Buffalo. During that time I have concluded that he is still unable to assist effectively in his defense because of his refusal to discuss important areas of his case, such as trial strategy, the raising of defenses, such as, for example, lack of criminal responsibility, and possible approaches to the anticipated proof at trial. In one conversation with him, regarding two important areas of evidence expected from the prosecution, and conflicting strategies for responding to same evidence, the defendant merely states ‘I’ll take care of that'f or ‘leave that up to me.’ When pressed on the need to cooperate with defense counsel, Mr. Christopher states ‘I’m going to make my own decisions’ ’’ (Emphasis supplied.)

      . Because our reversal stems from those statutes, we do not reach or decide the constitutional issues argued by defendant.

        . The dissent’s reference to the last sentence of subdivision 2 (dissenting opn, at p 432) ignores the wording of the first sentence of that subdivision. Its contrary construction of the subdivision (dissenting opn, at p 432) also ignores the above-quoted underscored language of the legislative memorandum. Even if the one-sided proceedings which the dissent would accept as sufficient be deemed a “hearing” (but see, People v Richetti, 302 NY 290, 297), it does not afford defendant “the right to contest the determination of the department” which the legislative history shows to have been intended. Moreover, that CPL 730.10 (8) specifies what the examiner’s report shall contain (dissenting opn, at p 434) proves nothing contrary to defendant’s right to contest that report at a hearing.

      . Though defendant’s original application was for funds to pay the four psychiatrists who testified at the first hearing, our holding is that the Trial Judge erred in refusing to hear any psychiatric evidence on defendant’s behalf, not that defendant had a statutory right to present the evidence of four psychiatrists at the second hearing.

      . Specifically, defense counsel were free to cross-examine the institution doctors and to submit evidence on behalf of defendant that he was not able to assist in his defense. The application to offer additional psychiatric evidence initially sought reexamination by the four psychiatrists who had previously testified defendant was incapacitated, then apparently sought a further statutory examination, at least the court understood it as such, and finally was submitted as an application to present additional psychiatric testimony to rebut the superintendent’s certification. The court reserved judgment on the application to submit additional psychiatric evidence until the conclusion of the hearing. It then denied the motion, holding that such evidence would be “cumulative and unnecessary.”

      . Parenthetically, I would add that I do not agree with the majority that the court may ignore defendant’s wish for a prompt trial when his counsel urges a finding of incapacity. For every reason counsel can advance for delay, the defendant can advance an equally cogent reason for a prompt trial to exonerate himself before the evidence grows stale or disappears and before he is consigned to a period of incarceration and treatment in a hospital for the criminally insane (see, Comment, Incompetency to Stand Trial, 81 Harv L Rev 454, 455-456; Cooper, Fitness to Proceed: A Brief Look at Some Aspects of the Medico-Legal Problem Under the New York Criminal Procedure Law, 52 Neb L Rev 44,64). As has been aptly stated, “[t]he gravest injustice is inflicted upon a person by criminal law commitment upon a finding of unfitness to proceed when it later turns out that he had not committed any criminal act” (see, Bacon, Incompetency to Stand Trial: Commitment to an Inclusive Test, 42 S Cal L Rev 444, 448). In the absence of agreement on the necessity of a hearing between defendant and his counsel, the court wisely ordered one to review the doctors’ certification of competency. But defendant’s wishes and his well-stated and rational reasons for proceeding contrary to his counsel’s advice were entitled to the consideration the hearing court gave them when it decided the issue after the hearing. Pate v Robinson (383 US 375, 384) does not hold otherwise.

      . Defendant mentions this statutory right only briefly in his submissions and without specification of the basis for it. His principal contentions concerning the hearing are that reversal is required (1) because Dr. Chellappa was unqualified and his testimony unworthy of belief and (2) because he was denied due process. The first issue is beyond our power of review. Because the majority have decided the appeal on statutory grounds, it is not necessary to address the constitutional issue. We have previously held, however, that the procedures set forth in title 12 of the former Code of Criminal Procedure, generally similar to the procedure contained in article 730, satisfied due process requirements (see, People v Hudson, 19 NY2d 137, cert denied 398 US 944; see generally, Validity and Construction of Statutes Providing for Psychiatric Examination of Accused to Determine Mental Condition, Ann., 32 ALR2d 434).


source: Caselaw Access Project

author: Boomer, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Freddy Sanchez, Appellant. The People of the State of New York, Respondent, v Howard Fraser, Appellant. The People of the State of New York, Respondent, v Tyrone Maggette, Appellant. The People of the State of New York, Respondent, v Alvin Grant, Appellant. The People of the State of New York, Appellant, v Pedro Rivera, Respondent.
    Argued June 3, 1985;
    decided July 5, 1985

      POINTS OP COUNSEL

      Meira Rosenberg and William E. Hellerstein for appellant in the first above-entitled case.
    Appellant’s State and Federal constitutional rights to be present were violated when he was tried in absentia where the court never advised him of the consequences of nonappearance, he failed to appear before his case was moved for trial, and his codefendants pleaded guilty before trial began. (People v Parker, 57 NY2d 136; Brady v United States, 397 US 742; Johnson v Zerbst, 304 US 458; Taylor v United States, 414 US 17; United States v Tortora, 464 F2d 1202, cert denied sub nom. Santoro v United States, 409 US 1063; United States v Beltran-Nunez, 716 F2d 287; People v Epps, 37 NY2d 343; People v Johnson, 37 NY2d 778; United States v Reed, 639 F2d 896.)

      Mario Merola, District Attorney (Mark L. Freyberg and Peter D. Coddington of counsel), for respondent in the first above-entitled case.
    I. Appellant’s guilt was proven beyond a reasonable doubt. II. Appellant knowingly and voluntarily waived his right to be present at his trial. (People v Weston, 56 NY2d 844; People v West, 56 NY2d 662; People v Parker, 57 NY2d 136; United States v Tortora, 464 F2d 1202, cert denied sub nom. Santoro v United States, 409 US 1063; People v Trendell, 61 NY2d 728; People v Cruz, 117 Misc 2d 355; People v Flores, 78 AD2d 554; Taylor v United States, 414 US 17; Illinois v Allen, 397 US 337; People v Johnson, 37 NY2d 778.)

      Eileen A. Beckett and William E. Hellerstein for appellant in the second above-entitled case.
    Appellant’s State and Federal constitutional rights to be present at trial were violated when he was tried in absentia without ever having been informed of the consequences of nonappearance and where he voluntarily absented himself after jury selection had commenced but before an entire panel had been sworn. (People v Parker, 57 NY2d 136; Taylor v United States, 414 US 17; People v Scott, 104 AD2d 667; People v Molina, 118 Misc 2d 887.)

      Mario Merola, District Attorney (Mark L. Freyberg and Peter D. Coddington of counsel), for respondent in the second above-entitled case.
    I. Appellant’s guilt was proven beyond a reasonable doubt by overwhelming evidence. (People v Morales, 37 NY2d 262; People v Lam Lek Chong, 45 NY2d 64.) II. Appellant knowingly and voluntarily waived his right to be present at his trial. (People v Parker, 57 NY2d 136; People v Weston, 56 NY2d 844; People v Johnson, 37 NY2d 778; People v Epps, 37 NY2d 343, 423 US 999; Taylor v United States, 414 US 17; People v Aiken, 54 AD2d 937,45 NY2d 394; People v Scott, 104 AD2d 667; United States v Tortora, 464 F2d 1202, cert denied sub nom. Santoro v United States, 409 US 1063; Diaz v United States, 223 US 442; People v Byrnes, 33 NY2d 343.)

      Stephanie T. Knowles and William E. Hellerstein for appellant in the third above-entitled case.
    Appellant’s State and Federal constitutional rights to be present at trial were violated when he was tried in absentia after he failed to appear subsequent to the summoning of a venire and when he had only been admonished by the court that any delay caused by him would be “seriously considered” and could result in his remand to custody. (People v Parker, 57 NY2d 136; Taylor v United States, 414 US 17; United States v Tortora, 464 F2d 1202, cert denied sub nom. Santoro v United States, 409 US 1063.)

      Mario Merola, District Attorney (Kevin Lubin and Mark L. Freyberg of counsel), for respondent in the third above-entitled case.
    I. Appellant’s guilt was proven beyond a reasonable doubt by overwhelming evidence. II. Appellant knowingly and voluntarily waived his right to be present at his trial. (People v West, 56 NY2d 662; People v Cona, 49 NY2d 26; People v Parker, 57 NY2d 136; Taylor v United States, 414 US 17; United States v Tortora, 464 F2d 1202, cert denied sub nom. Santoro v United States, 409 US 1063; People v Ferro, 63 NY2d 316; People v Class, 63 NY2d 491.)

      J. Fortier Imbert and William E. Hellerstein for appellant in the fourth above-entitled case.
    I. Because appellant’s right to attend his trial is a fundamental right, the question whether that right was violated can be raised on appeal as a matter of law even though appellant’s trial counsel failed to object to having appellant tried in his absence. (People v Patterson, 39 NY2d 288, affd sub nom. Patterson v New York, 432 US 197; People v Michael, 48 NY2d 1; People v McLucas, 15 NY2d 167; People v Arthur, 22 NY2d 325; People v McLaughlin, 291 NY 480; People v Miles, 289 NY 360; People ex rel. Battista v Christian, 249 NY 314; Cancemi v People, 18 NY 128; Mullaney v Wilbur, 421 US 684; Illinois v Allen, 397 US 337.) II. The trial court erred by trying appellant in his absence. (United States v Tortora, 464 F2d 1202, cert denied sub nom. Santoro v United States, 409 US 1063; People v Johnson, 37 NY2d 778; People v Parker, 57 NY2d 136; People v Molina, 118 Misc 2d 887; Taylor v United States, 414 US 17.)

      Robert M. Morgenthau, District Attorney (Vija Kemanis and Norman Barclay of counsel), for respondent in the fourth above-entitled case.
    Defendant has failed to preserve for review his present claim that he was denied his right to be present at his trial; in any event, he knowingly and intelligently waived that right when he voluntarily failed to return to court on the second day of jury selection. (People v Martin, 50 NY2d 1029; People v Michael, 48 NY2d 1; People v Patterson, 39 NY2d 288, affd sub nom. Patterson v New York, 432 US 197; People v Arthur, 22 NY2d 325; People v McLucas, 15 NY2d 167; People v Creech, 60 NY2d 895; People v Dancey, 57 NY2d 1033; People v Gonzalez, 55 NY2d 887; People v Thomas, 50 NY2d 467; People v Lieberman, 47 NY2d 931.)

      Elizabeth Holtzman, District Attorney (Miriam R. Best and Barbara D. Underwood of counsel), for appellant in the fifth above-entitled case.
    Defendant’s voluntary flight, after he had been sent out with his codefendant for immediate trial, implied a knowing, voluntary and intelligent waiver of the right to be present at trial and sentence as a matter of law. (People v Parker, 57 NY2d 136; People v Scott, 104 AD2d 667; People v Rivera, 103 AD2d 225; Taylor v United States, 414 US 17; United States v Tortora, 464 F2d 1202, cert denied sub nom. Santoro v United States, 409 US 1063; People v Molina, 118 Misc 2d 887; People v Stroman, 36 NY2d 939; People v Seppinni, 119 Misc 2d 125.)

      Edwin Ira Schulman for respondent in the fifth above-entitled case.
    I. Respondent’s trial in absentia was in violation of his 6th Amendment guarantee of confrontation. (People v Parker, 57 NY2d 136; Johnson v Zerbst, 304 US 458; People v Epps, 37 NY2d 343, 423 US 999; People v Johnson, 37 NY2d 778.) II. The identification testimony of Arthur Thomas should be suppressed as in violation of respondent’s 5th Amendment guarantee to due process. (People v Logan, 25 NY2d 184; People v Brnja, 70 AD2d 17; People v Smith, 46 AD2d 639, 38 NY2d 882; People v Digiosaffatte, 63 AD2d 703; Stovall v Denno, 388 US 293; Manson v Braithwaite, 432 US 98; Neil v Biggers, 409 US 188; Dickerson v Fogg, 692 F2d 238.) III. Thomas’ photographic identification of respondent at trial constitutes reversible error. (People v Nival, 33 NY2d 391; Haberstroh v Montanye, 493 F2d 483; United States ex rel. Riffert v Rundele, 464 F2d 1348, cert denied sub nom. Riffert v Johnson, 415 US 927; People v Gissendanner, 48 NY2d 543.) IV. The sentence imposed in absentia should be vacated. (Matter of Root v Kapelman, 67 AD2d 131.) V. Errors committed during trial denied respondent his constitutional guarantee to a fair trial. (Brown v United States, 411 US 223; People v Adams, 21 NY2d 397; People v Lombard, 4 AD2d 666; People v Wallace, 17 AD2d 981; People v Montlake, 184 App Div 578.)
   OPINION OF THE COURT

Boomer, J.

In each of these five criminal cases, the defendant was tried and convicted in absentia, having failed to return to the courthouse after being present when his case was assigned for immediate trial. At issue is whether the rationale in People v Parker (57 NY2d 136) mandates the reversal of the convictions because the defendants were not warned of the consequences of a failure to return to court. We determine that it does not.

People v Sanchez

Defendant, Freddy Sanchez, appeals from an order of the Appellate Division affirming a judgment convicting him of robbery in the second degree.

Defendant was present in the courtroom when his attorney announced he was ready for trial and when the calendar justice referred the case to a Part for trial stating, “You’re the fourth jury and, therefore, the case is going and they’re going to hold your jury. Respectfully referred to Mr. Justice Donald Sullivan, Part 51, forthwith.” Defendant went to Justice Sullivan’s courtroom, Part 51, but he left the courthouse before his case was called in that Part. The trial was adjourned until the following morning to allow defendant’s attorney to investigate his client’s disappearance.

The next morning defendant appeared in his attorney’s office but, in spite of his attorney’s direction, he failed to return to court. Following a hearing that afternoon, Justice Sullivan found that the People had made a reasonable and diligent effort to find defendant and that defendant had knowingly and voluntarily waived his right to be present at trial. He proceeded to try the defendant in absentia after the weekend recess.

People v Fraser

Defendant, Howard Fraser, appeals from an order of the Appellate Division affirming a judgment convicting him of criminal sale of a controlled substance in the third degree.

Defendant was present during the first day of jury selection. After five jurors were sworn, the court adjourned for the day, telling everyone to return to the courtroom at 9:45 the next morning. When defendant failed to appear the next morning, the court adjourned the matter until 2:30 in the afternoon.

Following a hearing that afternoon, the court found that the defendant’s absence was voluntary and that he had waived his right to be present during his trial. The court then continued with the selection of the remaining jurors and completed the trial in defendant’s absence.

People v Maggette

Defendant, Tyrone Maggette, appeals from an order of the Appellate Division affirming a judgment convicting him of criminal possession of a forged instrument in the second degree and criminal possession of stolen property in the second and third degrees.

At a suppression hearing held immediately before trial, the court told the District Attorney, defense counsel and defendant that they should consider themselves on trial. It also warned the defendant that it would not tolerate any delay caused by the defendant, and in case of such delay it would seriously consider remanding the defendant to jail. Following the hearing and after the court denied the motion to suppress a statement defendant made to the police, defense counsel and the District Attorney discussed a possible plea. When the court refused defendant’s request that he remain on bail pending sentence, defendant rejected the plea offer. Thereupon, the court told the clerk to order a panel of jurors and adjourned until 11:00 a.m. to await the arrival of the panel.

Defendant was absent when the panel arrived and when he failed to appear by 2:00 p.m., the court proceeded with the trial. After two days of jury selection and before the last juror was sworn, the court conducted a hearing to determine whether the defendant’s absence was voluntary. Following the hearing, the court found that defendant had absconded and thus had waived the right to be present at his trial. The trial continued in defendant’s absence.

People v Grant

Defendant, Alvin Grant, appeals from an order of the Appellate Division affirming a judgment of Supreme Court convicting him of robbery in the first degree.

Defendant was present when the trial court held a Sandoval hearing, had the jury panel sworn, and instructed the panel. Before the attorneys began questioning the prospective jurors, the court recessed for the day and directed everyone to return to the courtroom at 9:30 the next morning. When the defendant failed to appear the next morning, the court adjourned the case until the following day. The following day when defendant failed to appear, the court, after hearing of the efforts made by defense counsel and the District Attorney to locate defendant, continued with the jury selection and completed the trial in defendant’s absence.

People v Rivera

The People appeal from an order of the Appellate Division reversing, on the law, a judgment of Supreme Court convicting defendant, Pedro Rivera, of robbery in the first degree.

When defendant appeared at calendar call, the District Attorney and defense counsel stated that the case was ready for trial and the court announced that it was sending the case to “Part 55, Judge Goldman, 10th Floor of this building for trial.” Defendant’s attorney directed defendant to the proper courtroom, but defendant failed to appear. After waiting several hours, the trial court issued a warrant for defendant’s arrest and adjourned the trial for six weeks. On the adjourned date, following a hearing, the court found that the defendant had knowingly, intelligently and voluntarily waived his right to attend his trial, and it proceeded to try the defendant in absentia.

Citing People v Parker (57 NY2d 136, supra), each of the defendants contends that he did not waive his right to be present at trial because he was not expressly warned of the consequences of his failure to reappear in court. In Parker (supra), the court held that a defendant who had received notice of the date for trial did not waive her right to be present by voluntarily failing to appear on the assigned date where she had not been warned that the trial would proceed in her absence (People v Parker, supra, pp 138,141). The court recognized, however, that the right may be lost, under certain circumstances, as in Taylor v United States (414 US 17).

In Taylor (supra), the Supreme Court held that a defendant who had attended the opening of his trial and deliberately failed to return after the luncheon recess could be tried in absentia, even though he had not been warned that the trial would continue in his absence. The court recognized that the “controlling rule” is: “if a defendant at liberty remains away during his trial the court may proceed provided it is clearly established that his absence is voluntary. He must be aware of the processes taking place, of his right and of his obligation to be present, and he must have no sound reason for remaining away.” (Cureton v United States, 130 US App DC 22, 27, 396 F2d 671, 676, quoted in Taylor v United States, supra, pp 19-20, n 3.)

The Taylor court noted that “ ‘there can be no doubt whatever that the governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward.’ Illinois v. Allen, 397 U. S. 337, 349” (414 US 17,20). As explained in Falk v United States (15 App DC 446, 460, cert denied 181 US 618, quoted in Diaz v United States, 223 US 442, 457-458): “The question is one of broad public policy, whether an accused person, placed upon trial for crime and protected by all the safeguards with which the humanity of our present criminal law sedulously surrounds him, can with impunity defy the processes of that law, paralyze the proceedings of courts and juries and turn them into a solemn farce * * * Neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong.” Thus, under the Taylor rule, if a defendant deliberately leaves the courtroom after his trial has begun, he forfeits his right to be present at trial regardless of whether he knows that the trial will continue in his absence. Thus, defendants Fraser and Grant, who absconded after their trial had begun, forfeited their right to be present.

The same considerations of public policy permitted the courts to try Sanchez, Maggette and Rivera in absentia, even though their trials had not yet begun when they left the courtroom. There is no significant difference between the misconduct of a defendant who deliberately leaves the courtroom shortly after the trial begins and that of a defendant who does so after he has been told that the trial is about to begin. In either case, his conduct unambiguously indicates a defiance of the processes of law and it disrupts the trial after all parties are assembled and ready to proceed. Thus, Sanchez, Maggette and Rivera also forfeited their right to be present at trial.

The rationale of People v Parker (supra) has no application to the circumstances of these cases. There the court held that Parker’s conduct in failing to appear for court on the date scheduled for trial did not unambiguously indicate a waiver of her right to be present at trial. Neither did it unambiguously indicate a defiance of the processes of law sufficient to effect a forfeiture.

Defendant Rivera raises the additional point that he was improperly sentenced in absentia. We hold that a defendant who is properly tried in absentia may during his continued absence also be sentenced in absentia (see, People v Smith, 106 AD2d 670, 671-672; Brewer v Raines, 670 F2d 117, 119; Byrd v Hopper, 537 F2d 1303, 1304-1305, cert denied 429 US 1048; People v White, 18 Cal App 3d 44, 48, 95 Cal Rptr 576, 578; People v Lane, 91 Ill App 3d 827, 830, 414 NE2d 1249, 1251-1252; State v Kelly, 213 Kan 237, 242-243, 515 P2d 1030, 1034-1035). Here it was not improper for the court to sentence Rivera in absentia. The record shows that at the time of his trial a bench warrant had been issued for his arrest and the warrant squad was unable to locate him. He was missing from his residence and his wife had not seen him and did not know where he could be found. By his deliberate absence from his trial he also forfeited his right to be present at sentencing.

Accordingly, the orders of the Appellate Division in People v Sanchez, People v Fraser, People v Maggette and People v Grant should be affirmed; and the order of the Appellate Division in People v Rivera, reversing the judgment of conviction on the law, should be reversed and remitted to that court for consideration of the facts and of the issues of law raised by defendant, but not decided.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Titone concur; Judge Alexander taking no part.

In People v Sanchez, Fraser, Maggette and Grant: Orders affirmed.

In People v Rivera: Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.

       Forfeiture, unlike an express waiver which involves an evaluation of defendant’s state of mind, occurs by operation of law and as a matter of public policy (see, People v Thomas, 53 NY2d 338, 342-343, n 2; see also, Westen, Away From Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich L Eev 1214,1239, n 50 [1977]; 3 LaFave & Israel, Criminal Procedure § 23.2, at 7).


author: Per Curiam.

text:
    The People of the State of New York, Appellant, v Lynn Elliott, Respondent.
    Decided July 5, 1985
    APPEARANCES OF COUNSEL

      Neal P. Rose, District Attorney (Biagio J. DiStefano of counsel), for appellant.

      Thomas L. Atkinson for respondent.
   OPINION OF THE COURT

Per Curiam.

Defendant, as landlord, collected security deposits in the sum of $100 from each of 139 tenants in a housing project owned by him. Upon the appointment of a receiver in a foreclosure action and a demand by the receiver that defendant turn over to him all security deposits as required by General Obligations Law § 7-105, defendant responded that he no longer was in possession of the deposits. Defendant was arrested and charged with failing to comply with General Obligations Law § 7-105, a misdemeanor.

The evidence at trial indicated that soon after the tenants occupied the project, extensive damage occurred due to vandalism and defective building materials. Defendant testified that he spent the entire sum of the security deposits to repair the damage. The jury returned a verdict of guilty, and the Morrisville Village Court imposed a nine-month prison sentence. Madison County Court, sitting as an intermediate appellate court, reversed the conviction and dismissed the information on the grounds that the People had failed to prove an element of the crime, i.e., that defendant was in possession of security deposits at the time the receiver was appointed, and that the People had failed to timely file a bill of particulars.

We reverse, noting that no issue was raised concerning culpable mental state (Penal Law § 15.15 [2]). General Obligations Law § 7-105 provides in relevant part that:

“1. Any person * * * whether the owner or lessee of the property leased, who or which has or hereafter shall have received from a tenant *** a deposit or advance of rental as security * * * shall, upon * * * the judicial appointment and qualifying of a receiver * * * deal with the security deposits as follows:

“Turn over * * * to the receiver * * * the sum so deposited * * *

“2. * * * The provisions of this section shall not apply if the agreement between the landlord and tenant * * * is inconsistent herewith.

“3. Any failure to comply with this section is a misdemeanor.”

To establish a prima facie case under General Obligations Law § 7-105, the People must show only that the defendant, in his capacity as landlord, collected security deposits from the tenants; that a receiver was judicially appointed; and that the receiver made a demand for the security deposits that was not complied with by the landlord. When these elements are established, the defendant may nonetheless raise as a defense that he no longer possessed the funds at the time the demand was made and that the funds were used in a manner provided for in the lease, albeit inconsistent with the statute.

Here, the evidence showed that defendant used the entire amount of the security deposits to repair damage to the project. Under the terms of the leases entered into with each of the tenants, however, the $100 security deposit was to be divided into two parts of $50 each. One part was designated “as security that the tenant will do everything required of the tenant in this lease.” The second part was intended “to provide a fund for equal assessment against all tenants to pay for repairs to the common areas * * * only when damages cannot be recovered from the party at fault.” Assuming that defendant would not have been successful in recovering damages from the responsible individuals, it remains that he wrongfully applied the entire amount of the security deposits, and thus violated the statutory mandate by his failure to turn over those deposits not disposed of in accordance with the lease provisions. Accordingly, it was error for the County Court to dismiss the information on the ground that defendant was not in possession of the security deposits.

County Court also abused its discretion in grounding its dismissal on the People’s failure to timely file its bill of particulars. Neither side precisely followed the procedures for discovery set forth in CPL 200.95. Defendant shows no prejudice resulting from the People’s late filing of their answers or from their failure to answer the question whether they alleged that defendant was in possession of the security deposits. County Court based its dismissal on its erroneous view that possession is an element of the crime and that defendant was left without sufficient information to proceed to trial.

The order of County Court should be reversed and the case remitted to that court for consideration of the facts and other issues not previously addressed.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in Per Curiam opinion.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and case remitted to Madison County Court for further proceedings in accordance with the opinion herein.