People v. Lowe

109 A.D.2d 300, 491 N.Y.S.2d 529, 1985 N.Y. App. Div. LEXIS 49752

Opinions

OPINION OF THE COURT

Denman, J.

On this appeal from a judgment convicting him of two counts of murder in the second degree, robbery in the first and second degree, and petit larceny, and from an order denying his motion to vacate the judgment (CPL 440.10), defendant maintains that the competency examinations ordered by the court pursuant to CPL article 730 did not meet the statutory requirements, that he was thus deprived of due process and that he is entitled to a reversal of the judgment and a new trial. For the reasons which follow, we conclude that the judgment and order must be reversed, and a new trial granted.

Defendant was accused of murdering Harold Hoyt on the night of April 19, 1978, by stabbing him 13 times. He was also accused of the robbery and stabbing of Richard Stugis on May 2, 1978. Defendant was apprehended shortly after the Stugis incident because he had left his jacket, which contained his name, phone number and medical identification card, in the Stugis apartment. When he was interviewed by the police, defendant said that he heard voices and had to do what the voices told him.

Historically, defendant had been variously diagnosed as having a cyclothymic personality and as being manic-depressive, a paranoid schizophrenic and a catatonic schizophrenic. Defense counsel interposed the defense of not guilty by reason of mental disease or defect and requested a competency examination. Two weeks after arraignment in May 1978, the court ordered an examination pursuant to CPL article 730. Dr. Wellington W. Reynolds and Dr. J. Richard Ciccone submitted reports finding defendant incompetent to stand trial. After a second set of CPL article 730 examinations in September 1978, Dr. Reynolds and Dr. Ciccone submitted reports finding the defendant competent. A third set of CPL article 730 examinations was conducted in January 1979, by Dr. Juan Perez and Dr. Kashinath Patil who found defendant to be competent to stand trial. Finally, on April 9,1979, the court ordered another CPL article 730 examination. Pursuant to that order only, Dr. Reynolds examined defendant on May 4 and found him to be competent. There was no second report as required by CPL 730.20 (1) and Dr. Reynolds’ report was submitted by letter rather than by means of the form prescribed by statute (CPL 730.10 [8]; 22 NYCRR Appendix A-7).

Jury selection began on September 10, 1979 and continued throughout that week with defendant in attendance. After a weekend recess, jury selection was scheduled to resume on September 17, 1979. On that day, it was reported to the court that defendant refused to go to court. A hearing was held out of the presence of the jury to determine whether defendant was still competent to stand trial and whether he had waived his presence. A nurse at the Monroe County Jail stated that defendant refused to take the medication for his mental illness, refused to eat or speak and refused to go to court. A supervisor at the jail testified that, when he asked defendant if he was ready to go to court, defendant rolled over and looked at him without responding. He testified further that defendant had removed all his clothing and lay on the bed.

Defense counsel asked for another competency exam before continuing and for periodic examinations during trial. Dr. Barry, the Director of the Monroe County Mental Health Clinic, called the court to state that he could not examine defendant because he refused to speak, but, upon review of defendant’s records, in his opinion, defendant was competent and voluntarily refused to appear at trial. Dr. Reynolds testified that he had seen defendant the previous Thursday and in his opinion, defendant was competent. The court made a finding of competency, ordered continuing psychiatric observation, but proceeded with the trial. Defendant never reappeared for trial and the jury returned a verdict of guilty on all counts.

THE MOTION TO VACATE THE JUDGMENT

Defendant’s appellate counsel moved to vacate the judgment pursuant to CPL 440.10 (1) (b), (f), (h). In support of the motion counsel submitted an affidavit stating that during her preparation of the appeal, she became aware that Dr. Reynolds, who conducted most of the examinations into defendant’s competency and who singly performed the examination most proximate to trial, is not a “qualified psychiatrist” within the meaning of CPL 730.10 (5) (a), (b), because he is not a diplómate of the American Board of Psychiatry and Neurology and not eligible to be certified nor is he certified or eligible to be certified by the American Osteopathic Board of Neurology and Psychiatry. She averred that, in the first two examination reports prepared by Dr. Reynolds, he had represented himself as a “qualified psychiatrist” within the meaning of CPL article 730, but that in response to the examination order of April 1979, he did not use the report form mandated by statute but reported to the court by a letter indicating that he had examined defendant and found him competent.¹ She contended that the issue with respect to Dr. Reynolds’ failure to meet the statutory criteria could not be raised on defendant’s direct appeal because the relevant facts do not appear in the record. The court denied the motion without a hearing, stating erroneously that this court had already determined that Dr. Reynolds is not a “qualified psychiatrist” within the meaning of the statute.² The court went on to state that sufficient facts would appear in the record on the direct appeal to permit this court to make a determination as to whether it would be possible to reconstruct defendant’s mental capacity at the time of trial.

THE DIRECT APPEAL

On the direct appeal, defendant contends that, since the trial took place in September 1979, the critical competency examination was the one conducted pursuant to court order of April 9, 1979 because it was most proximate to trial. In response to that order, only Dr. Reynolds conducted an examination and reported to the court by letter dated May 4, that he had examined defendant on that date and found him to be competent. That response failed to comply with the requirements of CPL article 730 in several important respects. When an order pursuant to CPL article 730 is received by the director of an appropriate mental health care facility, he is required to designate two qualified psychiatrists, of whom he may be one, to examine the defendant to determine if he is an incapacitated person (CPL 730.20 [1]). The statute further requires that the designated psychiatrists submit their, examination reports upon mandated forms (CPL 730.10 [8]; 22 NYCRR Appendix A-7).

It is undisputed here that only Dr. Reynolds examined defendant pursuant to the April order. Further, his report was merely a letter stating cursorily that defendant was competent. The failure to submit the examination report upon a proper form is not merely a technical defect since the forms are prescribed so that certain information considered to be essential will be com municated to the court to enable it to make a proper determination of defendant’s mental capacity. Dr. Reynolds’ letter failed to state that he was a “qualified psychiatrist” within the meaning of CPL 730.10 (5) and failed to state the nature and extent of the examination as required by CPL 730.10 (8). To compound the omissions, apparently Dr. Reynolds is not eligible to serve as an examiner pursuant to CPL article 730.

ARTICLE 730 MUST BE STRICTLY CONSTRUED

The procedures established by CPL article 730 are not discretionary and, once a court makes a preliminary determination that a defendant may be incapacitated, the statutory steps must be followed. “Having made the threshold determination that psychiatric inquiry was indicated, the trial court’s failure to secure the second psychiatric report, as required by CPL 730.20, can hardly be viewed as an insubstantial error in light of the appellant’s prior history of mental illness. Once the procedure mandated by CPL article 730 had been invoked, the defendant was entitled to a full and impartial determination of his mental capacity” (People v Armlin, 37 NY2d 167, 172; People v Weech, 98 AD2d 952). Because there were substantial deviations from the statutory requirements, defendant was deprived of a full and impartial determination of his mental capacity to stand trial.

It is fundamental that the “conviction of an accused person while he is legally incompetent violates due process * * * and that state procedures must be adequate to protect this right” (Pate v Robinson, 383 US 375, 378; People v Hudson, 19 NY2d 137, cert denied 398 US 944). The test to be applied is whether the defendant “ ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him’ ” (Dusky v United States, 362 US 402; see also, Drope v Missouri, 420 US 162, 172). It was to protect defendants’ due process rights in this sensitive area that CPL article 730 was enacted; its safeguards, therefore, must be diligently followed. Nor can there be a waiver of those safeguards by a putatively incapacitated defendant for “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” (Pate v Robinson, supra, p 384; People v Armlin, supra, p 172).

Having concluded that the strictures of CPL article 730 were substantially violated in the last critical round of CPL article 730 examinations, the question becomes whether the judgment of conviction must be reversed. The People contend that it is possible to reconstruct defendant’s mental capacity at the time of trial by means of a hearing at which the psychiatrist and others who examined, observed and treated the defendant immediately preceding and during trial can testify from records and from their recall as to defendant’s contemporaneous behavior (see, People v Armlin, supra, p 173; People v Gonzalez, 20 NY2d 289, 293; People v Hudson, supra, p 140; People v Wright, 105 AD2d 1088; People v Weech, 105 AD2d 1085). The People urge us to adopt the course we followed in People v Wright (supra) and People v Weech (supra). In those cases we remitted the matter to Trial Term to determine whether, on the basis of such evidence, those defendants’ mental capacity at the time of trial could be reconstructed. The determination of whether reconstruction is possible is contingent primarily on three considerations: (1) the extent to which there were contemporaneous psychiatric examinations, particularly for competency, but also those performed in conjunction with the preparation of an insanity defense; (2) the length of time since trial so as to determine whether witnesses at the reconstruction hearing can testify from memory rather than from records made at the time; and (3) the opportunity to observe defendant’s behavior at trial to gauge the extent to which he was able to cooperate with his counsel and to understand the nature of the proceedings (see, e.g., Pate v Robinson, supra, p 387; People v Armlin, supra, p 173; People v Gonzalez, supra, p 293; People v Hudson, supra, p 140).

Examination of the circumstances of this case from the perspective of those factors leads us to conclude that a reconstruction hearing cannot realistically be achieved. There were contemporaneous psychiatric examinations, not- only by Dr. Reynolds and others on the issue of competency, but also by Dr. Klein and Dr. Barton who examined defendant on the issue of criminal responsibility. The two considerations which militate against the likelihood of a reconstruction hearing in the present case are the length of time since trial and the lack of opportunity to observe defendant’s behavior at trial. Nearly six years have now elapsed since defendant’s trial. Although that length of time alone does not render reconstruction impossible per se, when viewed in conjunction with the other factors present here, it contributes significantly to our determination that the possibility of reconstruction is unlikely because potential witnesses who observed defendant at that time would, in all likelihood, have to resort to contemporaneous records rather than independent recall (see, Drope v Missouri, 420 US 162, supra [five to six years; no competency examination but other psychiatric examinations]; Pate v Robinson, 383 US 375, supra [six years; no competency examination but other psychiatric examinations]; Silverstein v Henderson, 706 F2d 361, cert denied 464 US 864 [six years; two competency examinations]).

Perhaps the most significant factor here, however, is the fact that there was no opportunity for observation of the defendant at trial. That fact alone gives rise to the additional question of whether defendant knowingly, intelligently and voluntarily relinquished his right to be present at trial. “In order to effect a voluntary, knowing and intelligent waiver, the defendant must, at a minimum, be informed in some manner of the nature of the right to be present at trial and the consequences of failing to appear for trial (see Schneckloth v Bustamonte, 412 US 218, 243-244; Brady v United States, 397 US 742, 748).” (People v Parker, 57 NY2d 136,141.) Defendant’s mental health was so precarious and changeable that earlier psychiatric examinations were inadequate to establish his competency at the time of trial. Inasmuch as the court was sufficiently concerned about defendant’s fitness to proceed that it ordered competency examinations on four separate occasions prior to trial and continuing competency examinations during the course of trial, it would be incongruous to argue that defendant knowingly and intelligently waived his right to be present at trial.

In view of the serious flaws in the proceedings to determine defendant’s competency and to determine his ability to waive his presence at trial, the only course which will insure defendant’s right to a valid determination of his mental capacity to stand trial is to reverse the judgment of conviction and grant him a new trial. Because of our determination on this issue, we need not reach defendant’s claims of error during the trial.

Accordingly, the judgment and order appealed from should be reversed and a new trial granted.

Footnotes

1

. The reporting form mandated by CPL article 730 calls for the examiner to indicate whether he is a “qualified psychiatrist” (official form DMH 704 [4-72] JC, 22 NYCRR Appendix A-7). On the first two examination reports submitted by Dr. Reynolds, he so indicated.

2

. In People v Weech (105 AD2d 1085), we remitted the case to Trial Term for a hearing to reconstruct defendant’s competency at the time of trial as contemplated in People v Armlin (37 NY2d 167), People v Gonzalez (20 NY2d 289, cert denied 390 US 971)'and People v Hudson (19 NY2d 137, cert denied 398 US 944). Because Dr. Reynolds’ eligibility under the statute was called into question, we merely stated that “[t]he fact that he may not be a ‘qualified psychiatrist’ (CPL 730.10, subd 5, par [a]) does not mean that his testimony may not be considered. He is qualified to state his expert opinion as to defendant’s competency, subject to cross-examination” (People v Weech, supra, pp 1086-1087).