SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
June 27, 1969
IN THE MATTER OF RUFUS LEE, PETITIONER,
COUNTY COURT OF ERIE COUNTY ET AL., RESPONDENTS
Del Vecchio, J. P., Witmer, Gabrielli, Bastow and Henry, JJ.
Memorandum: In this article 78 proceeding in the nature of prohibition petitioner seeks to vacate an order and warrant of Erie County Court adjudging him in contempt of court because of his refusal to answer questions propounded to him by Dr. Di Francesco in a purported examination under section 660 of the Code of Criminal Procedure and petitioner seeks inter alia to prohibit and restrain the Erie County Court and District Attorney from compelling him to answer questions during such examination. Sections 659 and 660 require that when a court having jurisdiction of the person of a defendant indicted for a felony orders such defendant to be examined to determine the question of his sanity, the examination must be conducted by two qualified psychiatrists designated by the Director of Community Health Services. There is no authority for examination by a single psychiatrist. Dr. Di Francesco and Dr. Yost were designated to examine petitioner on February 5, 1969. Dr. Yost resigned on February 17, 1969 and thereafter on April 18, 1969 before another psychiatrist had been designated to fill the vacancy Dr. Di Francesco asked petitioner questions which he refused to answer. The order and warrant adjudging him in contempt of court for such refusal must be vacated because the attempted examination by a single psychiatrist lacked legal authority. The Erie County Court and the Judges thereof and Honorable Michael F. Dillon, the District Attorney of Erie County should be prohibited and restrained from compelling petitioner to answer questions propounded to him in the course of any attempted competency examination by a single psychiatrist. (Proceeding to restrain respondents from compelling petitioner to answer questions in competency proceeding.)
Petition unanimously granted to the extent stated in the memorandum and judgment directed in favor of petitioner in accordance therewith, without costs.
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