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PEOPLE STATE NEW YORK v. JOSEPH G. CHRISTOPHER (07/05/85)

COURT OF APPEALS OF NEW YORK 1985.NY.47203 <http://www.versuslaw.com>; 482 N.E.2d 45; 65 N.Y.2d 417 decided: July 5, 1985. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.JOSEPH G. CHRISTOPHER, APPELLANT Appeal, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered May 25, 1984, which affirmed a judgment of the Supreme Court (Frederick M. Marshall, J.), rendered in Erie County, convicting defendant of three counts of murder in the second degree, following a non-jury trial. Counsel John A. Ziegler and Rose H. Sconiers for appellant. Richard J. Arcara, District Attorney (John J. DeFranks, Jo W. Faber and Rosemarie A. Wyman of counsel), for respondent. 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. Author: Meyer


Appeal, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered May 25, 1984, which affirmed a judgment of the Supreme Court (Frederick M. Marshall, J.), rendered in Erie County, convicting defendant of three counts of murder in the second degree, following a non-jury trial.

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.

Author: Meyer

 Opinion OF THE COURT

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 A.D.2d 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 U.S. 375, 384).*fn1

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,*fn2 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 ยง 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.*fn3 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 and 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.*fn4

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 ...


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