People v. Silburn

• Court: New York Court of Appeals
• Decided: April 3, 2018
• Docket: 28
• Status: Published

Opinion

State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.

No. 28 The People &c., Respondent, v. Spence Silburn, Appellant.

Alexis A. Ascher, for appellant. Howard B. Goodman, for respondent.

DiFIORE, Chief Judge:

We are called upon to decide two issues in this appeal. Defendant contends that he

was denied his right of self-representation when the trial court denied his request to proceed

pro se with “standby counsel.” Defendant further argues that he was deprived of a fair trial

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when the trial court precluded his proffered psychiatric testimony for failure to serve notice

on the People pursuant to CPL 250.10. We agree with the courts below that neither

contention is consistent with the controlling law. Therefore, we now affirm.

I.

In August of 2011, the police lawfully stopped defendant while he was driving a

stolen car with a license that had been suspended and revoked. Defendant was searched

and a loaded .45 caliber handgun was found in his jacket pocket. After the police seized

the gun, defendant spontaneously declared that it was a good thing the officer had his gun

drawn as quickly as he did because defendant would have shot him. Later at the precinct,

defendant waived his Miranda rights and admitted to stealing the car at gunpoint. Toward

the end of the 15-minute interview, defendant became agitated. He was later taken by

police to a hospital for a psychiatric evaluation. Defendant was thereafter indicted for

criminal possession of a weapon in the second degree, aggravated unlicensed operation of

a motor vehicle in the third degree, and related counts. In August 2012, two psychiatrists

examined defendant pursuant to CPL article 730, and a competency hearing was held. At

the hearing, defense counsel questioned one of the examining psychiatrists about

defendant’s history of mental illness, and discussed the symptoms of schizophrenia that

defendant exhibited. Defendant was found competent to stand trial.

A year later in 2013, and two weeks before trial, defendant requested to “proceed as

pro se.” The trial court inquired if defendant wanted to represent himself, to which

defendant replied that he did “[n]ot just [want to] represent myself, but having limitation

with my counsel.” The court plainly informed defendant that “[y]ou either have a lawyer,

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or you don’t have a lawyer. . . . You choose to represent yourself, you sit there by yourself.

You want to have a lawyer, you have a lawyer.” The court then asked, “All right?” The

record does not reflect defendant’s response, if any, and defense counsel continued to

represent defendant at trial.

Defendant raised the issue again after voir dire, when defense counsel informed the

court that defendant had wanted to question the prospective jurors and sought to question

the witnesses, in addition to the questioning done by his attorney. The court again told

defendant that “you have a right to represent yourself without an attorney. Or you have

the right to have an attorney.” Defendant maintained that the Sixth Amendment gave him

the right to the assistance of counsel and he wanted “assistance” from his counsel – for his

attorney to “act[] like an aide.” The court told defendant he could not have dual

representation. Although defendant replied, “I was asking if I could go pro se with standby

counsel,” he again clarified that he wanted the opportunity to ask any questions that his

attorney failed to ask. The court denied the request.

During trial, despite having never served a CPL 250.10 notice, defense counsel

sought to introduce the testimony of the psychiatrist who evaluated defendant, at the behest

of the police, the day he was arrested. Counsel informed the court that the psychiatrist

diagnosed defendant as “bipolar, with psychotic features” and, counsel argued, this

diagnosis rendered defendant mentally incapable of voluntarily waiving his Miranda rights.

After hearing from the psychiatrist outside the presence of the jury, the court precluded the

evidence, concluding that i) the proffered testimony was of slight probative value because

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the psychiatrist had no recollection of examining defendant; ii) the evidence was

insignificant; and iii) the failure to serve a CPL 250.10 notice prejudiced the People.

The jury convicted defendant of criminal possession of a weapon in the second

degree, aggravated unlicensed operation of a motor vehicle in the third degree, and a related

offense. The Appellate Division affirmed, determining that defendant’s request to proceed

pro se was equivocal since defendant asked only to proceed pro se with standby counsel

(145 AD3d 799, 799-800 [2d Dept 2016]). Thus, the Court concluded that that defendant

did not make a “knowing, voluntary, and intelligent waiver of the right to counsel” (id. at

799 [internal quotation marks and citation omitted]). The Court further held that the trial

court did not err in precluding defendant’s proffered psychiatric evidence because

defendant did not provide timely notice of his intent to present the evidence under CPL

250.10 (id. at 801).

A Judge of this Court granted defendant leave to appeal (29 NY3d 952 [2017]).

II.

Defendant argues that the trial court violated his constitutional right to self-

representation when it denied his requests to proceed pro se without making any further

inquiry. He maintains that the request was unequivocal despite the fact that it was

conditioned on his request to proceed with “standby counsel.” In response, the People

assert that the trial court did not err in denying defendant’s request to proceed pro se, since

defendant, as evidenced in the colloquy conducted by the court, never made an unequivocal

request to represent himself alone, without counsel.

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Under the New York and Federal Constitutions, a defendant has the right to proceed

without counsel and to represent him or herself at trial, and the State may not force counsel

upon a defendant (see NY Const, art I, § 6; Faretta v California, 422 US 806, 836 [1975]).

In People v McIntyre, we set forth a three-prong test, long used to address a defendant’s

right to self-representation:

“A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues”

(36 NY2d 10, 17 [1974]). If a defendant asserts a timely and unequivocal request to

proceed pro se, then the trial court must “conduct a ‘searching inquiry’ to ensure that the

defendant’s waiver [of the right to counsel] is knowing, intelligent, and voluntary” (Matter

of Kathleen K. [Steven K.], 17 NY3d 380, 385 [2011]; see also People v White, 56 NY2d

110, 117 [1982]).

In clarifying what “unequivocally” means, we have explained that the pro se request

must be “clearly and unconditionally presented to the trial court,” so that “convicted

defendants may not pervert the system by subsequently claiming a denial of their pro se

right” (McIntyre, 36 NY2d at 17). We determined that a defendant’s request to proceed

pro se was not unequivocal, where “[a]t no time did [defendant] demonstrate an actual

fixed intention and desire to proceed without professional assistance in his defense to the

charges against him” (People v Payton, 45 NY2d 300, 314 [1978], revd on other grounds,

445 US 573 [1980]). We have further concluded that the application to proceed pro se

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“must reflect a purposeful decision to relinquish the benefit of counsel and proceed

singularly” (Matter of Kathleen K., 17 NY3d at 386).1

In People v Mirenda (57 NY2d 261, 265 [1982]), we rejected the argument that a

defendant has a constitutional right to the assistance of standby counsel while conducting

a pro se defense, establishing that “[n]o such right is guaranteed by either the State or

Federal Constitution.” Nearly 20 years after Mirenda, we reaffirmed that, “[w]hile the

Sixth Amendment and the State Constitution afford a defendant the right to counsel or to

self-representation, they do not guarantee a right to both. These are separate rights depicted

on the opposite sides of the same constitutional coin. To choose one obviously means to

forego the other” (People v Rodriguez, 95 NY2d 497, 501 [2000] [internal quotation marks,

brackets, and citation omitted]). In doing so, we held that “[b]ecause a defendant has no

constitutional right to hybrid representation, the decision to allow such representation lies

within the sound discretion of the trial court” (id. at 502). “An accused awaiting trial

therefore has only two choices regarding legal representation – proceed with counsel or

waive the protection of the Sixth Amendment and proceed pro se” (People v Henriquez, 3

NY3d 210, 215 [2004]). Here, the record supports the trial court’s conclusion that

defendant’s request to proceed pro se was equivocal, and was conditioned on the assistance

1 In the context of a defendant’s constitutional right to counsel, we stated that a defendant asking the police “should I speak to a lawyer” did not amount to an unequivocal request for an attorney, such that his right to counsel did not attach and the statement he made to the police was not in violation of the federal and state constitutions (see People v Hicks, 69 NY2d 969, 970 [1987]; see also People v Mitchell, 2 NY3d 272, 276 [2004]; People v Glover, 87 NY2d 838, 839 [1995]; People v Roe, 73 NY2d 1004, 1006 [1989]; People v Fridman, 71 NY2d 845, 846 [1988]). -6- -7- No. 28

of counsel. Accordingly, the trial court did not err in failing to conduct a further

“searching” inquiry in response to defendant’s request.

Indeed, at the outset of the second request, defense counsel informed the court that

defendant wanted to question prospective jurors and witnesses in addition to the

questioning done by counsel. The court again explained to defendant that the court did not

allow “standby counsel,” and that defendant had either the right to represent himself

without counsel or the right to have an attorney. Defendant responded that the Sixth

Amendment gave him the right to the aid and assistance of counsel. Defendant’s

invocation of the Sixth Amendment during the colloquy and his evident desire to have

counsel question the prospective jurors and witnesses along with him is neither a waiver

of the right to counsel nor the substance of an unequivocal request to represent himself.

The United States Supreme Court “explicit[ly]” stated that the appointment of standby

counsel is “to relieve the [trial] judge of the need to explain and enforce basic rules of

courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in

the way of the defendant’s achievement of his own clearly indicated goals” (McKaskle v

Wiggins, 465 US 168, 184 [1984]). It is not to provide a defendant a cocounsel in front of

the jury. Here, while defendant used the words “standby counsel,” the substance of his

request – that he be permitted to ask questions in addition to those asked by his attorney –

demonstrated that he was seeking dual representation.2 Whether his request is labeled as

2 The fast food analogy offered in Judge Wilson’s dissent, joined by Judge Rivera, is both inapt and inappropriate. Whatever its intended effect, the use of such a rhetorical device trivializes the constitutional rights of defendant implicated on this appeal. In any event, -7- -8- No. 28

one of “dual representation,” “hybrid representation,” or “pro se with standby counsel,” the

record supports the conclusion that what this defendant wanted was his right to the

assistance of counsel at trial – i.e., he was not seeking to waive his constitutional right to

counsel – and he never requested to proceed without counsel.3 Thus, defendant did not

satisfy the first prong of McIntyre that he unequivocally request to represent himself and,

therefore, the trial court did not err in failing to conduct a further inquiry.4

the purported analogy presented by the dissent is completely defeated by the factual record. 3 In interpreting the federal right to self-representation under Faretta, the Second Circuit has pointedly explained,

“[t]he purpose of requiring that a criminal defendant make an ‘unequivocal’ request to waive counsel is twofold. First, unless the request is unambiguous and unequivocal, a convicted defendant could have a colorable Sixth Amendment appeal regardless of how the trial judge rules: if his request is denied, he will assert the denial of his right to self- representation; if it is granted, he will assert the denial of his right to counsel. Second, the requirement of an unambiguous and unequivocal request inhibits any ‘deliberate plot to manipulate the court by alternatively requesting, then waiving counsel’” (Williams v Bartlett, 44 F3d 95, 100-101 [2d Cir 1994] [internal citations omitted]). 4 The cases relied on by the Wilson dissent (People v Crampe, 17 NY3d 469 [2011] and People v Providence, 2 NY3d 579 [2004]) are inapposite as they both address the sufficiency of the colloquy the trial court has with a defendant who unequivocally requests to proceed pro se. The records in these cases demonstrate that in each case the defendant unequivocally, unconditionally and repeatedly requested to represent himself, which then triggered the second prong under McIntyre, requiring the court to inquire whether the defendant knowingly, voluntarily, and intelligently waived counsel. Here, by contrast, we are confronted with the first prong of McIntyre: whether the defendant unequivocally requested to represent himself without counsel. Defendant does not satisfy this initial prong on the record before us. -8- -9- No. 28

Defendant urges that a court presented with a request to proceed pro se with

“standby counsel” should make an in-depth inquiry whether defendant still desires to

represent himself, once defendant is informed that dual representation will not be provided.

We hold that further colloquy by the trial court is not constitutionally required when a

defendant remains equivocal, despite having been informed by the court on more than one

occasion that his right to self-representation includes a waiver of the right to an attorney,

as here. When a defendant asks to proceed “pro se with standby counsel” and the trial

court explains the scope of the right to proceed pro se, and specifically denies the

defendant’s request for hybrid representation, the better practice would be to again ask the

defendant if he or she still wants to proceed without counsel. Nevertheless, “[w]hile such

inquiries may be the better practice, we will not compel courts to engage in any particular

catechism” before denying an equivocal request to proceed pro se because “[n]either our

Constitution nor our precedent requires it” (Rodriguez, 95 NY2d at 502). As it is the trial

court’s function to “ensur[e] the orderly administration of the proceedings” (id., citing

Mirenda, 57 NY2d at 266), it remains within the trial court’s discretion to conduct any

further colloquy where a defendant does not unequivocally request to proceed without

counsel, but instead prefers to proceed with the assistance of counsel.5

5 The Wilson dissent’s alternative conclusion – the trial court abused its discretion in denying defendant’s request for hybrid representation – is one that is not urged by defendant on this appeal nor was it raised below (see Wilson dissenting op. at 7-9; see also Rivera dissenting op. at 4 [acknowledging the issue is not before us]). -9- - 10 - No. 28

III.

CPL 250.10 (2) prohibits a defendant from introducing psychiatric evidence as to

his or her mental capabilities at trial “unless the defendant serves upon the people and files

with the court a written notice of his intention to present psychiatric evidence.” “Such

notice must be served and filed before trial and not more than thirty days after entry of the

plea of not guilty to the indictment” (CPL 250.10 [2]). The term “psychiatric evidence” is

defined as “[e]vidence of mental disease or defect to be offered by the defendant in

connection with” either (a) “the affirmative defense of lack of criminal responsibility by

reason of mental disease or defect,” (b) the “affirmative defense of extreme emotional

disturbance,” or (c) “any other defense not specified in the preceding paragraphs” (CPL

250.10 [1]). We previously held CPL 250.10 (1) (c) is a “catch-all provision that

contemplates a defendant’s use of psychiatric evidence in connection with ‘any other

defense’” (People v Almonor, 93 NY2d 571, 578 [1999]). Defendant argues that the trial

court erred in precluding his unnoticed psychiatric evidence because a challenge to the

voluntariness of a confession pursuant to CPL 710.70 is not a “defense” and is thus outside

the ambit of CPL 250.10 (1) (c). We disagree.

Defendant narrowly construes the phrase “any other defense” in CPL 250.10 (1) (c)

to be limited to psychiatric evidence offered in support of a complete defense to an element

of the crime, such as mens rea; he does not interpret the statute to include a defense strategy

to offer evidence that allows the jury to negate the prosecution’s evidence of guilt. As

explained below, this argument ignores the legislative intent, our precedent espousing the

very purpose of notice, and the fact that, if a defendant’s confession was the primary

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evidence of guilt and the defendant raises the issue of voluntariness at trial, then

voluntariness could be a complete defense to the crime (see People v Miller, 28 NY3d 355,

359 [2016]).6 Notably, our Court has previously labeled a defendant’s challenge to the

voluntariness of his statement pursuant to CPL 710.70 a “defense” (see People v Combest,

4 NY3d 341, 347-348 [2005]).7 Moreover, lower courts, have found that the CPL 250.10

notice requirement applies when a defendant seeks to use psychiatric evidence at trial to

challenge the voluntariness of his or her statements (see People v Brown, 4 AD3d 886, 888

[4th Dept 2004]; People v Yates, 290 AD2d 888, 890 [3d Dept 2002]; People v Matthews,

57 Misc 3d 1210[A], 2017 NY Slip Op 51371[U], *6 [Sup Ct, NY County 2017]; People

v Oliver, 45 Misc 3d 765, 773-774 [Sup Ct, Kings County 2014]; People v Prater, 172 Misc

2d 831, 833 [Sup Ct, Kings County 1997]; People v Morello, 142 Misc 2d 142, 143-144

[Westchester County Ct 1988]).

6 Contrary to the musings of the dissent, cases where confessions constitute the primary evidence of guilt are not rare and since 1881, the legislature has included statutory safeguards requiring corroboration of a defendant’s confession (see Wilson dissenting op. at 13 n 2; see also People v Lipsky, 57 NY2d 560, 570 [1982]; CPL 60.50). 7 In the context of an ineffective assistance of counsel claim, we treated a defendant’s challenge to the voluntariness of his confession as a “defense” (see People v Oliveras, 21 NY3d 339, 347 [2013]). There, the defendant moved to vacate his conviction for murder in the second degree, arguing his trial counsel was ineffective for “fail[ing] to provide timely notice pursuant to CPL 250.10, to present evidence of defendant’s psychiatric history, to obtain defendant’s psychiatric records, [and] to consult an expert to explain the relationship between defendant’s psychiatric history and the voluntariness and reliability of his statements” (id. at 344). We noted that “other than defendant’s statements to the police, no other evidence directly connected defendant with the murder” (id. at 343), and therefore, we concluded that defense counsel was ineffective for failing to “secure and review” defendant’s psychiatric records because “trial counsel’s inability to undermine the voluntariness of [defendant’s inculpatory] statements was crucial” (id. at 348). - 11 - - 12 - No. 28

A.

In interpreting a statute, “our primary consideration is to discern and give effect to

the Legislature’s intention” (Matter of Albany Law School v New York State Off. of

Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120 [2012]). Evidence of

legislative intent is “first sought in the words the Legislature has used. But we may not

stop there; the spirit and purpose of the act and the objects to be accomplished must also

be considered” (People v White, 73 NY2d 468, 473-474 [1989] [internal citations omitted];

see also Matisoff v Dobi, 90 NY2d 127, 133 [1997] [“where a statute’s language is capable

of various constructions, the ‘obvious spirit and intent’ of a statute necessarily informs the

meaning and import to be accorded that language”]). Since the phrase “any other defense”

in CPL 250.10 (1) (c) is susceptible to multiple interpretations, the phrase must be

construed in light of the legislature’s purpose in enacting it (see Kimmel v State of New

York, 29 NY3d 386, 393 [2017] [“We have repeatedly held that ‘the word “any” means

“all” or “every” and imports no limitation”’] [citation omitted]). An inquiry into the

purpose of the statute “requires examination of the statutory context of the provision as

well as its legislative history” (Matter of Sutka v Conners, 73 NY2d 395, 403 [1989]).

The precursor to CPL 250.10 was the former Code of Criminal Procedure § 336,

which required defendants to serve and file notice only if they intended to rely on the

insanity defense (see Code Crim Pro § 336).8 CPL 250.10 was later enacted and

8 The purpose behind the notice requirement in former Code of Criminal Procedure § 336 was to ensure that the People were not unfairly surprised at trial. According to the Legislative Memoranda accompanying the former provision,

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subsequently amended in 1980, and the notice requirement remained limited to the insanity

defense (see L 1980, ch 548, § 7). In 1982, however, the legislature codified this Court’s

decision in People v Segal (54 NY2d 58 [1981]) by expanding the notice requirement to

include the affirmative defense of extreme emotional disturbance in subdivision (b) and

the catchall “any other defense” in subdivision (c) (see L 1982, ch 558, § 9; People v

Cruickshank, 105 AD2d 325, 329 [3d Dept 1985], affd sub nom. People v Dawn Maria C.,

67 NY2d 625 [1986]; see also Joseph W. Bellacosa, Practice Commentary, McKinney’s

Cons Laws of NY, Book 11A, CPL 250.10 at 425). In 1984, subdivision (a) of the statute

was amended to reflect the change of the insanity defense to an affirmative defense (see L

1984, Ch 668, §§ 6, 7). As we stated, “CPL 250.10 and its notice provisions initially

contemplated only an insanity defense (now an affirmative defense). Recognizing,

however, that psychiatric evidence could properly be introduced for mitigatory purposes,

“At present, there is no provision in the Code requiring notice that the defendant intends to present evidence of mental disease or defect. In fact, he may offer such evidence under a plea of not guilty without the specification of insanity and, if the defense is sustained, the jury may acquit. This, obviously, may place the People at an unfair disadvantage in that, surprised by the sudden interposition of this collateral defense, they may have insufficient opportunity to obtain the psychiatric and other evidence necessary to refute it and to establish, as they must, the defendant’s sanity beyond a reasonable doubt. The bill would rectify this situation” (Mem of Temp Commn on Rev of the Penal Law and Crim Code following L 1963, ch 595, reprinted in 1963 McKinney’s Session Laws of NY at 1986; see also People v Berk, 88 NY2d 257, 263-264 [1996]).

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the Legislature broadened the definition of psychiatric evidence to include the two other

categories” (Almonor, 93 NY2d at 578).

Indeed, as evidenced by the statute’s Bill Jacket, the purpose of the 1982

amendments was to “provide for a simplified and expanded exchange of [evidentiary]

information between the prosecution and defense” before trial (Governor’s Mem

Approving L 1982, ch 558, 1982 Legis Ann at 186). This process would “markedly

increase[]” the “efficiency and fairness of criminal proceedings” and “improve[]

evidentiary discovery practices” with the goal of reducing “judicial delay” (id.). As we

explained,

“The Legislature enacted CPL 250.10 to promote procedural fairness and orderliness. The statute is designed to create a format by which psychiatric evidence may be prepared and presented manageably and efficiently, eliminating the element of surprise. With that in mind the Legislature has formulated a procedure that depends upon proper notification, adversarial examination, and preclusion when appropriate”

(Almonor, 93 NY2d at 577-578). That is, the very purpose behind the statute was to

eliminate surprise and promote fairness at trial by allowing the People, upon defendant’s

timely notice, the opportunity pretrial to obtain otherwise privileged psychiatric evidence

to rebut defendant’s affirmative use of the evidence at trial. Therefore, allowing a

defendant to use unnoticed psychiatric evidence without good cause shown would be

contrary to the “legislative intent . . . to ensure the prosecution sufficient opportunity to

obtain the psychiatric and other evidence necessary to refute the proffered defense of

mental infirmity” (People v Berk, 88 NY2d 257, 264 [1996] [internal quotation marks,

citation, and emphasis omitted]).

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The legislature also intended to avoid the delay that would result from the surprise

presentation of such evidence at trial, which, in fairness, would necessitate an adjournment

so that the People could have the defendant examined by their own mental health expert

and obtain the relevant medical records (see CPL 250.10 [3]). These principles apply

equally whether the psychiatric evidence is offered in connection with a mens rea defense,

or in connection with the defendant’s challenge to the voluntariness of his or her statements

to the police. It is the very nature of psychiatric evidence that mandates the requirement

of notice, if the defendant intends to rely on the evidence to negate the People’s evidence

of guilt. Thus, it is entirely consistent with the purpose of the statute to construe the phrase

“any other defense” as used in CPL 250.10 (1) (c), to apply to defendant’s offer of

psychiatric evidence in support of his contention that due to his mental illness, his

statements, which are direct evidence of guilt, must be rejected by the jury (see e.g. People

v Rumble, 45 NY2d 879, 880-881 [1978]).

Moreover, our prior case law demonstrates that we have repeatedly construed the

statute broadly in order to carry out the legislative intent to ensure the fairness of the trial.

For example, in Berk, we expanded the parameters of what constitutes “psychiatric

evidence” under CPL 250.10, by holding that the plain language of the statute requires

notice of an intention to offer psychiatric evidence irrespective of whether the expert

actually examined the defendant (Berk, 88 NY2d at 263). In People v Pitts, the companion

case to Almonor, the defendant timely served notice of his intention to offer psychiatric

evidence relating to his acute stress disorder in connection with his insanity affirmative

defense, but because the defendant did not timely notify the People that the same

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psychiatric evidence surrounding the defendant’s stress disorder was also going to be used

to support a defense based on lack of assaultive intent, the court precluded the evidence

(93 NY2d at 581). In other words, although the People were aware of the “general nature

of the alleged psychiatric malady” the defendant sought to introduce, they had no notice of

“its relationship to a particular, proffered defense” and thus they were “not [] able to

conduct a meaningful psychiatric examination of [their] own” (id.). We therefore held

preclusion of the evidence was appropriate. In People v Diaz (15 NY3d 40 [2010]), we

applied the notice requirement to mental health testimony provided by lay witnesses. We

stated, “for purposes of the notice provision, psychiatric evidence, which we have broadly

construed to encompass ‘any’ mental health evidence offered by a defendant, includes lay

testimony” (id. at 47; see also Segal, 54 NY2d at 66-67 [expanding the statute, then limited

to the insanity defense, to apply to a defense based on mental defect that negated intent];

Matter of Lee v County Ct. of Erie County, 27 NY2d 432, 441-442 [1971] [affording the

prosecution the right to have its own expert examine the defendant who seeks to call a

psychiatrist at trial]).9

9 Despite the dissent’s recognition that “a court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact” (Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 394 [1995] [quotation marks and citation omitted]; see Wilson dissenting op. at 19), this is precisely what the dissent does when it concludes that psychiatric evidence offered by defendant in connection with ‘any other defense’ under subdivision (c) “can only be meant to include evidence that would either raise a defense by creating reasonable doubt about the mens rea element of the crime or establish an affirmative defense” (Wilson dissenting op. at 12). Where, as here, the legislature, in contrast to subdivisions (a) and (b), omitted the word “affirmative” from subdivision (c), it is not appropriate for us to insert it. It was plainly the intent of the legislature to expand subdivision (c) and require defendants to provide notice to the People when they seek to introduce psychiatric - 16 - - 17 - No. 28

The dissent asserts, among other things, that our interpretation of the statutory term

“any other defense” in CPL 250.10 to mean what it plainly says – any other defense –

somehow impinges on a defendant’s “constitutional right to present witnesses” and that

CPL 250.10 assists the People in proving “what they must” (see Wilson dissenting op. at

9, 15). However, courts have long rejected the notion that a statutory pretrial notice

requirement somehow shifts the People’s burden of proof or is a constitutional violation of

the right to present a defense (see People v Rodriguez, 3 NY3d 462, 468-469 [2004]; see

also Leland v Oregon, 343 US 790, 799-800 [1952]; People v Kohl, 72 NY2d 191, 193-

194 [1988]). The statute simply provides the People pretrial access to generally

unavailable evidence for the limited purpose of rebuttal, and requires a defendant to open

the door to the People’s rebuttal by affirmatively presenting the psychiatric defense (see

Buchanan v Kentucky, 483 US 402, 422-423 [1987]). As the United States Supreme Court

has explained, “if a defendant requests such an evaluation or presents psychiatric evidence,

then, at the very least, the prosecution may rebut this presentation” (id. at 422).10

evidence in connection with “any other defense” (CPL 250.10 [1] [c]). The dissent’s narrow interpretation of this catch-all phrase that is designed to be inclusive defeats the principle of fundamental fairness, which was the impetus for the statute. 10 The dissent’s discussion as to CPL 250.10’s applicability to suppression hearings (see Wilson dissenting op. at 17) involves an issue not before us as the argument was never raised in the trial court. This discussion also confuses the difference between the admissibility of a statement, a decision that may only be determined by the court, with the ability of the jury to determine the voluntariness of the statement at trial (see People v Hamlin, 71 NY2d 750, 761 [1988]; CPL 710.70). It further ignores that the CPL demands defendants provide pretrial notice of the legal grounds on which the suppression motion is made (CPL 710.60 [3] [a]). And lastly, timely notice under CPL 250.10 (2), i.e., “not more than thirty days after entry of the plea of not guilty to the indictment[,]” of a defense of mental illness as to the voluntariness of a statement, would provide the - 17 - - 18 - No. 28

As concluded by the courts below, the applicability of CPL 250.10 to the instant

case is wholly consistent with our longstanding interpretation that there can be no surprise

psychiatric evidence and that pretrial notice is necessary based upon “principles of fairness

and the integrity of the trial process” (Segal, 54 NY2d at 65). Thus, in order not to defeat

the purpose of the statute, we construe the phrase “any other defense,” as used in CPL

250.10 (1) (c), to apply to psychiatric evidence offered by defendant in support of his

contention that his statements to police were involuntary because his diagnosis of bipolar

disorder rendered him incapable of understanding and waiving Miranda warnings.

B.

Defendant next argues that the record belies the trial court’s finding that preclusion

of the evidence was warranted on the ground that the surprise evidence prejudiced the

People. In support, he claims the record shows that the People were aware early on that

defendant had a mental illness. However, there are two critical flaws in this argument.

First, knowing that defendant had a mental illness did not put the prosecutor on notice that

defendant intended to introduce evidence at trial that his diagnosis rendered him incapable

of giving a voluntary statement to the police. To be sure, defendant never even raised this

voluntariness argument at his Huntley hearing. Second, defendant’s contention ignores the

law that his own medical records are privileged until he waives the privilege (see Matter

of Lee, 27 NY2d at 441). When defense counsel told the court that he had not received

any hospital records from the prosecution, the court shrewdly observed that defendant’s

People ample opportunity to obtain rebuttal evidence before the pretrial suppression hearing. - 18 - - 19 - No. 28

medical records were privileged and that the prosecution had no right to look at them. This

is one of the primary reasons for CPL 250.10’s existence. The People cannot have a mental

health expert of their choosing examine a defendant nor can they obtain his or her medical

records due to the privileged and confidential nature of the evidence, unless the defendant

wants to affirmatively use a mental condition as evidence at trial, thereby waiving Fifth

Amendment rights and statutory privileges (see id.; see also Segal, 54 NY2d at 64-65;

CPLR 4507).

Finally, defendant contends that the court’s refusal to excuse the lack of notice was

an abuse of discretion since under the statute, the court may accept late notice “[i]n the

interest of justice and for good cause shown” (CPL 250.10 [2]). The record flatly refutes

defense counsel’s claim that good cause was shown for his untimeliness. Defense counsel

was fully aware that defendant had a longstanding history of mental health problems,

including diagnoses of bipolar disorder and schizophrenia, as evidenced by the record of

the CPL article 730 hearing, which took place a year before the trial. Furthermore, on the

second day of trial, defense counsel informed the court that he had been trying

unsuccessfully to contact the psychiatrist witness “for weeks,” contradicting his current

assertion that he did not plan to challenge the voluntariness of defendant’s statements to

the police until hearing the officer’s trial testimony.

The trial court, after examining the psychiatrist outside the presence of the jury,

precluded the evidence – a police form containing a mere diagnosis – as speculative on the

issue of voluntariness and because the People had no opportunity to examine defendant or

obtain rebuttal evidence. That the psychiatrist testified that he had no recollection of the

- 19 - - 20 - No. 28

examination of defendant is also part of this equation. So too is the fact that there is no

indication in the record that a diagnosis of bipolar disorder renders a defendant incapable

of knowingly and voluntarily waiving his Miranda rights. Thus, the court reasonably

decided to preclude the evidence at trial. Defendant’s claim that the trial court abused its

discretion in doing so is meritless.11

CPL 250.10 was designed to preserve the integrity of the trial process predicated on

a principle of fairness. Accordingly, the trial court neither erred nor abused its discretion

in precluding defendant’s unnoticed psychiatric evidence as there was no justification for

the surprise on this record, and to allow it would contradict the statutory purpose behind

the notice requirement.

Accordingly, the order of the Appellate Division should be affirmed.

11 Even if the psychiatric evidence at issue here had been erroneously excluded, its preclusion would have been harmless beyond a reasonable doubt as there was overwhelming evidence of guilt and no significant probability that preclusion impacted the verdict (see People v Crimmins, 36 NY2d 230, 241–242 [1975]). Officers recovered a loaded weapon on defendant’s person after lawfully pulling him over in a car that he was driving without a valid license. Further, defendant spontaneously admitted his possession of the loaded gun when he said he would have shot the officer had he not been apprehended so quickly. - 20 - People v Spence Silburn

No. 28

WILSON, J. (dissenting):

“The right of an accused in a criminal trial to due process is, in essence, the right to

a fair opportunity to defend against the State’s accusations” (Chambers v Mississippi, 410

US 284, 294 [1973]). Included in that right is the “chance to present his case in his own

way” by calling witnesses and by entrusting their examination to either his counsel or his

own faculties (McKaskle v Wiggins, 465 US 168, 177 [1984]). The majority denies Mr.

Silburn his chance in contravention of our precedents; I would reverse to grant him a new

trial on that ground. I disagree with the majority’s interpretation of CPL 250.10, but agree

the error here was harmless, and therefore would not reverse on that ground.

“[T]he right to self-representation embodies one of the most cherished ideals of our

culture; the right of an individual to determine his own destiny” (People v McIntyre, 36

NY2d 10, 14 [1974]). Unless the accused has agreed to representation by counsel, “the

defense presented is not the defense guaranteed him by the Constitution, for, in a very real

sense, it is not his defense (Faretta v California, 422 U.S. 806, 822 [1975] [emphasis in

original]). Of course, the federal and New York constitutions also guarantee that the

accused will “have the assistance of counsel for his defense” (US Const., Amendment VI;

see also NY Const, art. I § 6). Asserting the right to self-representation requires

relinquishment of representation by competent counsel. Few defendants will possess the

legal training and experience of counsel. Therefore, when a defendant makes a timely and

unequivocal request to proceed pro se, we require trial courts to ascertain whether there

has been a knowing and intelligent waiver of the right to counsel and whether the

defendant’s conduct would prevent a fair and orderly trial (McIntyre, 36 NY2d at 17).

Here, Mr. Silburn timely and unequivocally asserted his right to represent himself, but the

trial court defaulted in its duty to inquire. Accordingly, I would reverse Mr. Silburn’s

conviction and remand the case for a new trial.

The facts are as presented in the majority opinion. Two weeks before trial, Mr.

Silburn requested to proceed pro se.

THE DEFENDANT: Your Honor, excuse me, your Honor.

THE COURT: Yes?

THE DEFENDANT: I would like to know if I could proceed as pro se.

MR. CHAIKEN [DEFENSE COUNSEL]: Pro se.

THE COURT: In other words, you want to represent yourself?

THE DEFENDANT: Not just that represent myself, but having limitation with my

counsel—

THE COURT: No, I don't do that. You either have a lawyer, or you don't have a

lawyer. I don't have legal advisors. You choose to represent yourself,

you sit there by yourself. You want to have a lawyer, you have a

lawyer.

All Right?

August 7 for conference.

August 13 for trial.

As that transcript makes clear, Mr. Silburn began by stating his unequivocal request

to proceed pro se. He followed it with what any reader of McIntyre, “the foundation stone

of our self-representation jurisprudence”, and its progeny would have considered a second

unequivocal expression of that desire (People v Crampe, 17 NY3d469, 481 [2011]); see

McIntyre, 36 NY2d at 13 [treating Mr. McIntyre’s request that he “try the case himself and

that counsel be permitted to sit with him as an adviser” as unequivocal]; see also Crampe,

17 NY3d at 477 [treating Mr. Wingate’s request that he proceed pro se with “an attorney

to assist” as unequivocal]; People v Providence, 2 NY3d 579, 581-582 [2004] [treating Mr.

Providence’s request that he “proceed pro se, with assigned counsel placed in a ‘standby’

role” as unequivocal]). The majority offers no explanation why Mr. Silburn should be

treated differently from those who came before.

Nothing in Mr. Silburn’s two statements—his only statements before the court

summarily concluded the hearing—supports the majority’s conclusion that his request to

proceed pro se was conditioned on, rather than merely eventually combined with, his

request for standby counsel. Consider the following illustration:

CUSTOMER: Sir, excuse me, sir.

CASHIER: Yes?

CUSTOMER: I would like to order a Big Burger.

CASHIER: In other words, you want two all-beef patties, special sauce, lettuce,

cheese, pickles, onions on a sesame seed bun?

CUSTOMER: Not just that, but I would also like fries with it—

CASHIER: No, we don't do that. You either have a Big Burger, or you have fries.

We don't serve combinations. You choose a Big Burger, you sit there

without fries. You want fries, you have fries only.

Next customer.

Would the cashier be justified in assuming the customer no longer desired a Big Burger

and delivering an order of fries only? Should the customer go hungry for using a correlative

conjunction?

There are two important differences that make Mr. Silburn’s situation grave, when

compared to a fast-food fiasco. First, the court is tasked with determining which of two

fundamental constitutional rights Mr. Silburn wishes to choose, if he must forgo one. That

determination demands far more concern and precision than a simple lunch order.1

Ironically here, although a “lack of knowledge of legal principles” and “unfamiliarity with

courtroom procedures” cannot bar defendants from exercising their right to self-

representation, the majority’s decision uses those exact shortcomings to prevent Mr.

Silburn from requesting to exercise his right (People v Davis, 49 NY2d 114, 120 [1979]).

Second, the customer and cashier are on even footing, whereas Mr. Silburn is far less versed

in law than the court. (Indeed, customers can take their money to the burger joint next

door; Mr. Silburn is rooted to his spot.) The majority frees courts from engaging in “any

particular catechism”—at the price of imposing a precise one on defendants (majority op.

at 7, quoting People v Rodriguez, 95 NY2d 497, 502 [2000]). Yet who in that relationship

has the pulpit?

Moreover, even assuming Mr. Silburn could be understood to have conditioned his

request for self-representation on his request for the appointment of standby counsel, trial

courts presented with those two requests should, if they deny the second, be required to ask

defendants whether they prefer to reassert or recant the first. Mr. Silburn did not, as the

1 The majority’s complaint that my illustration trivializes Mr. Silburn’s constitutional rights underscores their error: a cashier would not treat a customer’s request for a burger and fries this way; should a court treat Mr. Silburn’s request for his constitutional rights with less or greater regard (majority op. at 7 n 4)? To “trivialize” something is to ascribe little worth or importance to it; who here has done so? -5- -6- No. 28

majority would have it, “remain equivocal despite having been informed of the scope of

his right” (majority op. at 8); he remained silent. Given the court’s decision to abruptly

conclude the hearing after clarifying its rules, we cannot interpret that silence as consent to

representation by counsel. Only by asking follow-up questions that ascertain defendants’

true intentions can trial courts avoid Sixth Amendment violations and foreclose the

majority’s concern that wily defendants will “pervert the system” by spouting ambiguities

in a “deliberate plot to manipulate the court” (majority op. at 5, 7 n 3).

The injustice of the majority’s approach is compounded by the fact that defendants

reasonably expect their requests for standby counsel to be granted. It is unfair to punish a

defendant for requesting what all assume—on the basis of our prior case law, their prior

trials, the attestations of fellow inmates, the ABA’s recommendations, or a colorable

reading of the Sixth Amendment (see McIntyre, 36 NY2d at 13; Crampe, 17 NY3d at 475

[defendant “had previously represented himself with a lawyer's assistance”]; Erica J.

Hashimoto, Defending the Right of Self-Representation: An Empirical Look at the Pro Se

Felony Defendant, 85 NC L Rev 423, 485 [“In the overwhelming majority of cases . . . the

defendant was afforded advisory counsel”]; ABA Standards for Criminal Justice § 6-3.6–

6-3.7; People v Mirenda, 57 NY2d 261, 267-269 [1982] [Meyer, J., dissenting])—will be

provided in the first place. “To allow the uninformed to unwittingly waive their right of

self-representation merely by requesting standby counsel ‘is to imprison a man in his

privileges and call it the Constitution’” (People v Dennany, 445 Mich. 412, 456 [1994]

[Cavanaugh, CJ, concurring in part and dissenting in part], quoting Adams v United States

-6- -7- No. 28

ex rel. McCann, 317 US 269, 280 [1942]; see also Faretta, 422 US at 822-823 [“There is

something specially repugnant to justice in using rules of practice in such a manner as to

debar a prisoner from defending himself, especially when the professed object of the rules

so used is to provide for his defense” (citations and internal quotation marks omitted)]).

Here, although the trial court was not required to satisfy Mr. Silburn’s request for standby

counsel (Mirenda, 57 NY2d at 265), it erred in immediately curtailing any further

conversation and thereby preventing the determination of whether Mr. Silburn wished to

proceed pro se without any assistance of counsel.

The majority does not engage with Mr. Silburn’s first request to proceed pro se.

Instead, it rests its analysis on his second request, made two weeks after the first (majority

op. at 7). Neither the majority nor the People contend that the court’s failure to conduct a

McIntyre inquiry upon Mr. Silburn’s initial request was cured by his subsequent request.

Nor could they plausibly argue that the second colloquy—which was, like the first,

summarily curtailed by the court’s abruptly adjourning proceedings for the day—supports

the proposition that Mr. Silburn’s initial request was conditioned on his receiving standby

counsel. In that second colloquy, the court attempted to describe Mr. Silburn’s earlier

position, saying “[Y]ou said you didn't want to represent yourself.” Mr. Silburn

immediately denied it: “I never said that.” The transcript plainly shows that Mr. Silburn,

not the court, was correct.

In any event, Supreme Court also erred in refusing to contemplate even the

possibility of assigning standby counsel. Whether to permit standby counsel is “a subject

-7- -8- No. 28

for the discretion of the Trial Judge” (id. at 266; see majority op. at 6). The U.S. Supreme

Court has explained that “the term ‘discretion’ implies the absence of a hard-and-fast rule.

The establishment of a clearly defined rule of action would be the end of discretion” (The

Styria v Morgan, 186 US 1, 9 [1902]). “When invoked as a guide to judicial action, it means

a sound discretion, that is to say, a discretion exercised not arbitrarily or willfully, but with

regard to what is right and equitable under the circumstances” (Langnes v Green, 282 US

531, 541 [1931]). Our own precedents are equally clear that exercises of discretion must

be rooted in “fact or circumstance” (In re Superintendent of Banks of State of New York,

207 NY 11, 15 [1912]). We will intervene “where the trial court has either abused its

discretion or exercised none at all” (People v Smith, 27NY3d 652, 663 [2016]; see also

People v Williams, 56 NY2d 236, 240 [1982] [“This is an exercise of discretion that should

be left to the trial court. But it is also an exercise of discretion that should be performed by

the trial court”]). Our trial courts understand that discretion “has long been recognized as

requiring an actual exercise of judgment upon the part of the court . . . [that] necessitates a

consideration by the court of the facts and circumstances which are necessary to make a

sound, fair and just determination. The court is not permitted to arbitrarily establish a fixed

policy to govern every case, as that is the exact antithesis of discretion” (Application of

Frazzita, 147 NYS2d 11, 16–17 [Sup Ct, Jefferson County 1955]). That antithesis—not

the abuse of discretion, but its absence—was on display here. Supreme Court did not

consider any facts or circumstances in denying Mr. Silburn’s request for standby counsel.

-8- -9- No. 28

Instead, it relied on a blanket policy against them—and later reiterated that policy,

describing standby counsel as something “I don’t allow.”

Although we have determined that defendants choosing to proceed pro se have no

constitutional right to standby counsel, that conclusion does not mean the decision should

be left to the personal preferences of each trial judge, without consideration of the

defendant’s abilities, the nature, length and complexity of the case, or other factors bearing

on the value of standby counsel. Pro se defendants may have no constitutional right to

standby counsel, but that proposition does not mean that the availability of standby counsel

should turn on the vicissitudes of which judge they happen to draw, whose discretionary

decision will be unreviewable. Uniformity could be provided by statute or court rule.

As I explain below, the majority has misinterpreted CPL 250.10. I would not

reverse on that basis, however, because I agree with the majority that the error here was

harmless beyond a reasonable doubt (majority op. at 16 n 5).

The majority interprets CPL 250.10 (1) (c) as defining psychiatric evidence to

include testimony offered not only to negate an element of the crime, but also to attack the

weight to be given evidence offered by the People. That newly expansive interpretation of

a statute impinging somewhat on defendants’ “constitutional right to present witnesses” in

-9- - 10 - No. 28

their own defense ignores the plain meaning of the provision as well as its legislative

history and statutory context (People v Berk, 88 NY2d 257, 266 [1996]). Accordingly, I

would hold that Mr. Silburn did not have to provide notice of his intention to introduce

psychiatric evidence offered to persuade the jury to discount the evidentiary weight to be

given to his statements to the police.

CPL 250.10 requires a defendant who intends to proffer psychiatric evidence at trial

to provide notice of that intention within thirty days of pleading innocent, and allows the

People when served with such notice to apply for an order requiring the defendant to submit

to an examination by the People’s psychiatrist or licensed psychologist (CPL 250.10 [2];

[3]). It defines “psychiatric evidence” as:

“(a) Evidence of mental disease or defect to be offered by the defendant in

connection with the affirmative defense of lack of criminal responsibility by reason

of mental disease or defect.

“(b) Evidence of mental disease or defect to be offered by the defendant in

connection with the affirmative defense of extreme emotional disturbance as

defined in paragraph (a) of subdivision one of section 125.25 of the penal law and

paragraph (a) of subdivision two of section 125.27 of the penal law.

“(c) Evidence of mental disease or defect to be offered by the defendant in

connection with any other defense not specified in the preceding paragraphs.”

(CPL 250.10 [1]). The question is whether to read 250.10 (1) (c) in the light of its fellow

paragraphs or as an unheralded restriction on defendants’ ability to present their case.

The majority and I agree that in approaching that question “our primary

consideration is to discern and given effect to the Legislature’s intention” and that

“evidence of legislative intent is ‘first sought in the words the Legislature has used’”

(majority op. at 10 [internal citations and quotation marks omitted]). The statutory text is

the “best evidence” and “clearest indicator” of legislative intent (Kimmel v State of New

York, 29 NY3d 386, 392 [2017]; Mestecky v City of New York, 30 NY3d 239, 243 [2017]

[internal citations and quotation marks omitted]). To resolve questions of statutory

interpretation, we therefore “rely first and foremost on the plain language of the statute and

canons of statutory interpretation” (Avella v City of New York, 29 NY3d 425, 441 [2017]

[DiFiore, CJ, dissenting]). Included among those canons is the proposition that “[w]hen

the statutory language at issue is but one component in a larger statutory scheme, it must

be analyzed in context and in a manner that harmonizes the related provisions and renders

them compatible” (Mestecky, 30 NY3d at 243; see Stat. Law § 97). Similarly, “[w]e have

recognized that meaning and effect should be given to every word of a statute and that an

interpretation that renders words or clauses superfluous should be rejected” (id.; see Stat.

Law § 98 [a]). “Courts should construe unambiguous language to give effect to its plain

meaning” (id.).

Here, the plain language of CPL 250.10 (2) is susceptible to only one interpretation:

“psychiatric evidence” includes only evidence of mental disease or defect offered in

- 11 - - 12 - No. 28

connection to an affirmative defense or an element of the crime charged. First, the

“familiar principles of ejusdem generis”—invoked with particular force in this case by the

reference in the term at issue to the “other” defenses “specified in the preceding

paragraphs”—require we limit the general language of paragraph (c) by the specific

phrases of paragraphs (a) and (b) (People v Illardo, 48 NY2d 408, 416 [1979]; see Stat.

Law § 239 [b]). Those paragraphs enumerate certain statutory defenses that would, if

established, completely exonerate the accused or mitigate the crimes charged – which is

what a “defense” does. Read with its companions, paragraph (c) can only be meant to

include evidence that would either raise a defense by creating reasonable doubt about the

mens rea element of the crime or establish an affirmative defense (see Penal Law § 25.00;

see e.g. People v Rivers, 281 AD2d 348 [1st Dept 2001] [notice required when defendant

argued his use of a medication prescribed for liver trouble rendered him unaware of what

he was doing at the time of the crime]; People v Oakes, 168 AD2d 893 [4th Dept 1990]

[notice required when defendant argued his low IQ and susceptibility to being led by

authority figures prevented him from knowingly and willingly giving false testimony]). 2

2 The flaws in the majority’s definition can be illustrated by the following hypothetical: Imagine the police witnessed a defendant assault a fellow bar patron. That defendant tells her friends not to worry—she has a great defense—she intends to argue a video of the events in question should be suppressed as the fruit of an illegal search. Those friends would rightly object that that is no defense at all, and that the defendant should instead establish, e.g., an alibi, her infancy, or that she acted in self-defense. The majority hypothesizes that in some cases a defendant’s confession is the sole or overwhelming evidence of guilt (majority op. at 9-10). Even so, the nature of the prosecution’s proof does not convert a question of admissibility into a defense. Moreover, the majority rests its hypothetical on a trial in which “[t]he People's case, in addition to the inculpatory statements, included two eyewitnesses to the crime” and the People admitted - 12 - - 13 - No. 28

Second, the majority’s expansive interpretation of paragraph (c) would

impermissibly reduce paragraphs (a) and (b) to mere surplasage. There would be no reason

to specify certain defenses in those paragraphs if (c) is meant, as the majority suggests, to

apply to all psychiatric evidence whatsoever. In fact, there would be no reason to retain

any of the 92 words of CPL 250.10 (1) that follow “[a]s used in this section, the term

‘psychiatric evidence’ means evidence of mental disease or defect to be offered by the

defendant”. What, in the majority’s view, are we to make of the remaining 81 percent of

the subdivision? Only the more limited interpretation propounded by Mr. Silburn gives

meaning to paragraphs (a) and (b) while allowing them to inform the meaning of paragraph

(c).

It is unsurprising, then, that prior decisions of this Court have understood CPL

250.10 (1) (c) in the same, limited terms. In People v Almonor, which comprehensively

dissected the statute’s three classifications, we defined the defense described in 250.10 (1)

(c) as “a mens rea-type defense” that “serves to negate a specific intent necessary to

establish guilt” (93 NY2d 571, 758 [1999]). Similarly, in People v Gonzalez, we

summarized all three paragraphs of 250.10 (1) as operating “in connection with the

defenses of lack of criminal responsibility” (22 NY3d 539, 545 [2014]). Yes, those

they “were uncertain as to whether they were going to introduce defendant's statements” (People v Miller, 28 NY3d 355, 357 [2016]). The inapposite citation suggests the hypothesized case is infrequent. Even were such cases common, I would nevertheless rest easy if the worst consequence of preferring the people’s statutory pronouncements to the People’s ease is that a prosecutor may someday have difficulty convincing a jury to convict primarily on the confession of defendants too mentally impaired to have waived their Miranda rights. - 13 - - 14 - No. 28

statements are dicta. But they are suggestive of how “the statutory language is generally

construed according to its natural and most obvious sense”—and thus further evidence of

how effect should be given to it here (Stat. Law § 93).3 The unambiguous meaning of CPL

250.10 allows no other result.

Were we to look beyond the unambiguous language for evidence of the legislature’s

intent, the legislative history and statutory context of the provision fully support the above

interpretation. That history begins with the 1963 amendments to former Code of Criminal

Procedure § 336. Those amendments were adopted to solve two specific problems that

arose when a defendant surprised the People and the Court by raising an insanity defense

once a jury was impaneled: first, the inevitable adjournments that “disturb[ed] the orderly

progress of the trial, and could involve the reordering of proof and witnesses, all to the

disservice of the court proceedings and the trier of fact” (Almonor, 93 NY2d at 579);

second, the prospect that even those adjournments might provide the People “insufficient

opportunity to obtain the psychiatric and other evidence necessary . . . to establish, as they

must, the defendant’s sanity beyond a reasonable doubt” (People v Berk, 88 NY2d 257,

3 Last year’s Report of the Advisory Committee on Criminal Law and Procedure to the Chief Administrative Judge of the Courts of the State of New York is similarly suggestive. Its discussion of CPL 250.10 recommends amending paragraph (1) (c) to refer to “any other defense or claim”—a step that would be unnecessary if the many luminaries on that committee shared the majority’s expansive interpretation of the current statute (Report at 71). Additionally, that report’s conclusion that the statute applies only to evidence of the defendant’s mental disease or defect, and not to evidence of a third party’s—even though such evidence might be relevant to, e.g., a justification defense—undermines the majority’s claim that the statute was intended to eliminate all surprise (id.; see also CPL 250.10 [3] [allowing the People to apply for an order requiring the “defendant submit to an examination”]). - 14 - - 15 - No. 28

264 [1996], quoting Mem of Commn on Revision of Penal Law and Crim Code, Bill Jacket,

L 1963, ch 595 at 4). The Code’s new notice provision “avoid[ed] delay” and “enable[d]

the People to have defendant examined by their own experts within close temporal

proximity to the offense” (id. at 265). It came into being not to provide the People a

preview of defendant’s arguments, or to eliminate all surprise for its own sake—many

things at trial are surprising—but to make it possible for them, within the limits imposed

by the right to present a defense (see Report of the Judicial Conference, Bill Jacket, L 1963,

ch 595 at 6), to do their job without unfair surprise—that is, to make it possible for them

in insanity defense cases, which turn on psychiatric evidence, to establish what they must.

The extension of the statute from insanity to other psychiatric defenses followed a

similar rationale. In 1981, we applied the logic of CCP § 336, by then operating under its

present designation in the CPL, to a defendant’s effort to introduce psychiatric evidence

showing he suffered a memory impairment and thus lacked the intent to provide false

testimony that was an essential element of the People’s perjury charge (People v Segal, 54

NY2d 58 [1981]). The “basic point” of the notice provision has always been the need to

make it possible for the People to fulfill their obligation, which is “fundamentally” to

“prove every element of the crime, including intent whenever relevant” (id. at 66). Without

notice of psychiatric evidence that might undermine proof of an element of the crime, it

would be simply impossible—rather than merely more difficult—for the People to carry

that burden. Thus, “[a]lthough proof of a mental defect other than insanity may not have

acquired the status of a statutory defense, and will not constitute a ‘complete’ defense in

the sense that it would relieve the defendant of responsibility for all his acts[,] it may in a

particular case negate the specific intent necessary to establish guilt” (id. [citations

omitted]). In such a case, Segal held, notice was required. The following year, the

legislature codified that holding by adding paragraphs (b) and (c)—thereby writing Segal’s

narrow interpretation of what constitutes a defense for 250.10 (1) (c) purposes into the law

as it stands today (majority op. at 11; William C. Donnino, Practice Commentaries,

McKinney’s Cons Laws of NY, Book 11A, CPL 250.10 at 361 [2014 ed]). That we have

since furthered the narrow purpose of the statute by broadly defining who is capable of

offering psychiatric evidence is not license to interpret the purpose itself more broadly than

the legislature intended (Berk, 88 NY2d 257; Diaz, 15 NY3d 40; but see Gonzalez, 22

NY3d 539).

The statutory context of CPL 250.10 (1) cleanly illustrates the legislature’s intent to

have paragraph (c) operate only in the limited cases suggested by its plain language and

legislative history. CPL 250.10 (2) brings the machinery of the section to life only when a

defendant intends to proffer psychiatric evidence “upon a trial”; notice is not required

before offering identical evidence at a pretrial hearing. Had Mr. Silburn proffered Dr.

Elie’s notes to contest the validity of his Miranda waiver at his suppression hearing—21

months into a 24-month pretrial detention period—but not planned to introduce them at

trial, he would not have been required to provide notice at all. The majority has not

provided an explanation of why evidence that could have been presented, without notice,

at a hearing presents such a threat to the principle of fundamental fairness when adduced

- 16 - - 17 - No. 28

at trial. Instead, the majority argues that “as a practical matter, timely notice . . . would

provide the People ample opportunity to obtain rebuttal evidence before the pretrial

suppression hearing” (majority op. at 16 n 10). That rejoinder misses the very point of my

argument: very different types of psychiatric-evidence-based arguments are presented at

suppression hearings and at trial. That focus on the trial itself strongly suggests the

legislature intended to require notice of psychiatric evidence that proved the defenses

typically raised at trial, and did not intend to bring into 250.10’s ambit psychiatric evidence

that addressed the evidentiary issues, not generally fatal to the People’s case, typically

raised at pretrial hearings.4

“This result does not offend the important policy considerations underlying the

notice requirement” (Gonzalez, 22 NY3d at 548). In disagreeing with the majority’s

4 The difference is plainly rooted in type rather than timing. The legislature’s intent in passing CPL 250.10 was to prevent two unfortunate consequences of introducing psychiatric evidence without prior notice: delaying the proceedings and delaying the prosecution’s opportunity to obtain countervailing evidence that might be lost forever to the vagaries of mental health conditions if the People’s psychiatrist did not examine the defendant shortly after the offense. The first consequence is of less concern in a suppression hearing, which is less likely to be compromised by a brief adjournment than is a jury trial already underway. The second consequence, however, is fully present; the suppression hearing will take place months or years after the contested statements. The opportunity to obtain reliable countervailing psychiatric evidence—the “primary aim of the pretrial notice requirement” (Berk, 88 NY2d at 264)—will be lost without notice, and yet notice is not required, even though the potential impact on the People’s case—outright exclusion, rather than the possibility of a jury discounting evidence it has already been presented—is much greater. CPL 710.60 (3) does not, despite the majority’s effort to equate it to CPL 250.10, require before suppression hearings anything like the early notice required before introducing psychiatric evidence at trial. Instead, it allows the court to “summarily deny the [suppression] motion if . . . [t]he motion papers do not allege a ground constituting legal basis for the motion”. - 17 - - 18 - No. 28

interpretation, I do not dispute that 250.10 furthers a “compelling” purpose, as it must to

withstand the close scrutiny that attends any restriction on defendants’ right to call

witnesses on their behalf (Almonor, 93 NY2d at 581; Ronson v Commissioner of

Correction, 604 F.2d 176 [2d Cir 1979]). When defendant seeks only to challenge evidence

through which the People can prove their case, however, rather than a required element of

the offense or an affirmative defense, the concern for preventing unfair surprise is reduced.

We, no less than the trial courts, “must be vigilant in weighing a defendant’s constitutional

rights against the resultant prejudice to the People from the belated notice” (People v Diaz,

15 NY3d 40, 47 [2010]). Here, that vigilance requires us to enforce the balance set by the

legislature rather than bolster the People’s position in ways that legislature never intended.

Adjusting that balance is not a task for this Court (see Chem Specialties Mfrs. Ass’n v

Jorling, 85 NY2d 382, 394 [1995] [“(A) court cannot amend a statute by inserting words

that are not there, nor will a court read into a statute a provision which the Legislature did

not see fit to enact.”]).

Here, the very fact that the error is harmless reinforces the difference between a

“defense” – at which the statute is directed – and the weight or admissibility of evidence at

trial, at which the statute is not directed. That is, even if the jury completely credited the

psychiatric testimony, treated Mr. Silburn’s Miranda waiver as ineffective, and utterly

disregarded his subsequent inculpatory statements, no reasonable jury could have acquitted

him. The psychiatric evidence, therefore, was unrelated to any “other defense”, and is not

subject to CPL 250.10.

- 18 - - 19 - No. 28

Trial courts have the discretion to permit belated notice of an intent to proffer

psychiatric evidence at any time “in the interest of justice and for good cause shown” (CPL

250.10 [2]). The majority rejects Mr. Silburn’s claim that, assuming notice was required,

the trial court abused that discretion in refusing to permit late notice. In so doing, it

propagates the trial court’s confusion over which party had custody of the records in

question. The evidence the defendant sought to introduce was not a privileged medical

record but a “police form” (majority op. at 17). It was generated under the auspices of, and

retained by, law enforcement officials. As such, it could have been admitted and the

suppression issue argued without causing much more unfair surprise to the People than the

unnoticed EED defense advanced on the People’s proof that we approved in Gonzalez (22

NY3d at 548). Where the People should not have been surprised by the evidence, the

relevance of Mr. Silburn’s mental health to the voluntariness of his confession was not

plain until the interrogating officer testified at trial, and Mr. Silburn relied in good faith on

what I believe to have been the correct, and on what was certainly a colorable,

interpretation of 250.10 in declining to provide notice, it was error for the trial court to

refuse late notice under the statute. However, because I agree that the Court was justified

in precluding the evidence for its lack of probative value, and because the error would have

been harmless, I concur in the result reached by the majority on this aspect of the 250.10

question as well.

***

Accordingly, I would reverse Mr. Silburn’s conviction and remand the case for a

new trial before which his motion to proceed pro se, if renewed, could receive the requisite

attention from the court.

- 20 - People v Spence Silburn

RIVERA, J. (dissenting):

Defendant Spence Silburn claims he was deprived of his constitutional right to self-

representation when the trial judge treated his unequivocal request to proceed pro se as if

it were conditioned on receiving the assistance of standby counsel. This particular trial

judge had a uniform rule against “legal advisors,” and informed the defendant that, in his

courtroom, “[y]ou either have a lawyer, or you don’t have a lawyer.” The judge assumed

that, given this binary choice, the defendant retracted his request to represent himself.

The judge’s policy of denying all requests for standby counsel, regardless of the

seriousness of the case or the defendant’s sentencing exposure, appears based on this

Court’s decision in People v Mirenda, in which a majority of this Court held that “[a]

defendant has no constitutional right . . . to the assistance of a lawyer while conducting a

pro se defense” (57 NY2d 261, 264 [1982]). Over three-and-a-half decades ago, when the

Court decided Mirenda, access to standby counsel was understood to be primarily “a matter

of trial management” (id. at 266). The constitutional right to proceed pro se was, then,

only a few years old (see People v McIntyre, 36 NY2d 10 [1974] [recognizing a right to

proceed pro se under the New York state constitution]; Faretta v California, 422 US 806

[1975] [recognizing the same under the federal constitution]). The American Bar

Association Standards for Criminal Justice, which have proved the pre-eminent

restatement of constitutional norms and best practices (see Hon. Martin Marcus, The

Making of the ABA Criminal Justice Standards, 23 Crim Just 10 [2008-2009]), and which

this Court cited in its decision in Mirenda (see 57 NY2d at 266), said relatively little at the

time about standby counsel or when defendants were entitled to it, other than to suggest

mandatory appointment for the most serious and complex of cases (see ABA Standards for

Criminal Justice [2d ed], Special Functions of the Trial Judge, standard 6-3.7 [observing

that “the trial judge should consider the appointment of standby counsel” and that such

counsel “should always be appointed in cases expected to be long or complicated or in

which there are multiple defendants”]). The formal status of standby counsel was, then, a

newly legal and mostly untested development.

More than thirty years’ experience has demonstrated the importance of standby

counsel for enabling defendants to vindicate their fundamental constitutional rights. It is

now widely acknowledged that standby counsel help strike the delicate, necessary balance

between defendants’ constitutional right to counsel and their constitutional right to proceed

pro se. This is reflected in the updated edition of the American Bar Association Standards

for Criminal Justice, Special Functions of the Trial Judge, which now calls for the

mandatory appointment of standby counsel where a defendant faces a capital charge or the

possibility of lifetime imprisonment without parole, and observes categorically that

“[s]tandby counsel should ordinarily be appointed” not only where “trials [are] expected

to be long or complicated or in which there are multiple defendants” but also “in any case

in which a severe sentence might be imposed” (ABA Standards for Criminal Justice [3rd

ed], Special Functions of the Trial Judge, standard 6-3.7 [a]; see also id. “Commentary”

[“The overriding interest in appointing standby counsel . . . is to facilitate the function of

the criminal justice process, while protecting the autonomy of the defendant and the

principles and policies underlying the right to counsel.”]; Anne Bowen Poulin, The Role

of Standby Counsel in Criminal Cases, 75 NYU L Rev 676 [2000] [exploring the

importance of standby counsel to the criminal justice system]; Jona Goldschmidt, Judging

the Effectiveness of Standby Counsel, 24 S Cal Rev L & Soc Just 133 [2015] [arguing for

a constitutional right to standby counsel]). This near-universal agreement on the

importance of standby counsel reflects a shift in prevailing legal norms. In other words,

times have changed and the trend has been in favor of appointment of standby counsel to

ensure the rights of the accused and the integrity of our criminal justice system.1

1 Defense counsel represented at oral argument that few New York courts bar standby counsel based on a categorical rule and the vast majority provide for their appointment. -3- -4- No. 28

Nevertheless, defendant does not challenge whether the trial judge’s unwavering

rule against standby counsel is permissible under Mirenda, nor does he directly attack

Mirenda’s holding. Instead, he claims that he made an unequivocal request to proceed pro

se, not conditioned on his additional request for legal assistance. Given defendant’s

challenge as limited on appeal to this Court, I agree, for the reasons discussed in Judge

Wilson’s dissent, that defendant is entitled to a new trial because he was deprived of his

constitutional right to proceed pro se. I also agree with the dissent’s analysis of CPL 250.10

and its conclusion that the majority has misinterpreted the statutory language and

legislative purpose of the notice requirement as applied to subsection “c,” but, on the facts

of this case, the trial court error was harmless.

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Chief Judge DiFiore. Judges Stein, Fahey, Garcia and Feinman concur. Judge Wilson dissents in an opinion, in which Judge Rivera concurs in a separate dissenting opinion.

Decided April 3, 2018

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