The opinion of the court was delivered by: Andrias, J.
Decided on November 27, 2012
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Richard T. Andrias, J.P. David B. Saxe James M. Catterson Dianne T. Renwick Nelson S. Roman,JJ. Indictment 1263/09
Defendant appeals from the order of the Supreme Court, New York County (Larry R.C. Stephen, J.), entered on or about October 4, 2011, which denied his motion to quash a court-ordered subpoena duces tecum served on behalf of the New York County District Attorney's Office seeking his psychiatric records in connection with a pending CPL 730.50 retention hearing.
Defendant seeks to appeal from an order that denied his motion to quash a court-ordered subpoena duces tecum served on behalf of the New York County District Attorney's Office on the Director of Medical Records of Kirby Forensic Psychiatric Center (Kirby) requesting defendant's post-commitment psychiatric records in connection with a pending CPL 730.50(2) retention hearing. As explained below, the denial of the motion to quash the subpoena is a non-appealable order. However, were the order appealable, we would find that Supreme Court correctly determined that the District Attorney had standing to participate in the retention proceeding and was entitled to the subpoenaed psychiatric records in the interests of justice pursuant to Mental Hygiene Law § 33.13(c).
On February 19, 2009, defendant was arrested and charged with setting fire to a bookcase in the lobby of an occupied apartment building and to four cars. At the time of his arrest, defendant possessed several weapons, including a loaded .22 caliber firearm, and a bottle of gasoline. A search of his home recovered a sawed-off shotgun with ammunition, as well as more than 200 rounds of .22 caliber ammunition and another bottle of gasoline.
On February 20, 2009, defendant was arraigned at Bellevue Hospital and remanded for a competency examination pursuant to CPL 730.30. On March 11, 2009, defendant was indicted on arson and weapons possession charges. On March 26, 2009, he was arraigned on the indictment and the People moved to confirm the results of the CPL 730 examination, which found that defendant lacked the capacity to understand the proceedings and assist in his defense. Defendant was committed to the custody of the Commissioner of Mental Health and confined to Kirby (see CPL 730.50).
On March 24, 2010, Kirby notified the court and the District Attorney that defendant had been restored to fitness. The report in support of competency restoration noted possible malingering. After defendant was transferred to Riker's Island to await trial, his attorney once again requested a CPL 730.30 examination, and the examiners found that defendant was not fit to stand trial. By order dated July 1, 2010, defendant was committed to the custody of the Commissioner and returned to Kirby as an incapacitated person.
In June 2011, two members of Kirby's forensic committee concluded that defendant was fit to stand trial; one of them implied that defendant had feigned delusional thinking during his previous admission, i.e., had been malingering. The third member found that defendant was still incapacitated. Defendant's treating psychiatrist also found that defendant was fit, and recommended that he be returned to court. Nevertheless, Kirby's clinical director disapproved the recommended action, and on June 27, 2011, Kirby filed an application for an order of retention pursuant to CPL 730.50(2). Notice of the application was served on Mental Hygiene Legal Services (MHLS) and the District Attorney.
Defendant requested a CPL 730.50(2) hearing on the retention application. At a July 21, 2011 hearing date, the People, expressing concern over defendant's history of violence and the possibility that he was malingering, presented a subpoena duces tecum, which the court signed, directing Kirby to produce defendant's psychiatric records "from April 1, 2009 to the present." On August 16, ...