DAVID D. EGAN, J.
This is a death penalty case. The People sought an order requiring defendant before trial to file a notice of defendant's intention to offer psychiatric evidence pursuant to Criminal Procedure Law ("CPL") § 400.27 (13) (2001). Defendant opposed the People's motion and cross-moved for an, order declaring CPL § 400.27 (13) unconstitutional. See U.S. Constitution, 5th, 6th, 8th 14th Amd.; New York Constitution, Art. I, §§ 2, 5, 6 11.
On the record defendant acknowledged that he did not intend to offer psychiatric evidence during the guilt phase of trial, and to date has not filed a notice of intent to proffer psychiatric evidence pursuant to CPL § 250.10 (2001). This court held that defendant was required to file a CPL § 400.27 (13) Notice after the scheduled deadline to empanel a jury, but before the commencement of opening statements. Since that ruling, due to the serious illness and ultimate substitution of defendant's lead counsel, this court took nearly a ten week adjournment in the middle of individual voir dire. See CPL § 270.16 (1).
On September 1, 2000 this court on the record set November 8, 2000 as the deadline for defendant to file notice of his intent to offer psychiatric evidence at the penalty phase of trial. The date set by the court actually was two weeks before the scheduled opening statements, simply because there was a two week adjournment originally built-in to the trial schedule between the empanelment of a jury and opening statements. This court also implicitly rejected, defendant's constitutional challenge to CPL § 400.27 (13). See People v. Santiago, 183 Misc.2d 715 (Mon. Cty. Ct. 2000).
Individual voir dire of prospective jurors commenced on September 27, 2000 and resumed on January 10, 2001 after the lengthy adjournment.
In a new motion, defendant seeks an amended ruling in view of the court's adjournment. The People oppose, arguing that CPL § 400.27 (13) mandates notice before resumption of individual voir dire.
CPL § 400.27 (13)(b) provides in part:
When either party intends to offer psychiatric evidence, the party must,
within a reasonable time prior to trial, serve upon the other party and file with the court a written notice of intention to present psychiatric evidence. The notice shall include a brief but detailed statement specifying the witness, nature and type of psychiatric evidence sought to be introduced.
Id. (Emphasis added).
Upon notice, the statute permits the People to apply for an order directing a defendant to submit to a psychiatric examination for the rebuttal purposes. CPL § 400.27 (13)(c). Here, the People maintain they have not decided whether they will seek such an order.
This court recognizes there are differing opinions on the CPL § 400.27 (13) notice requirement. Cf. People v. Santiago, 183 Misc.2d 715 (Mon. Cty. Ct. 2000);People v. McCoy, unpublished (Suffolk Cty. Ct. [Ohlig, J.] April 13, 2000) (strictly construing CPL § 400.27 (13) to mandate notice be filed before the commencement of individual voir dire in the guilt phase of trial), with People v. Bell 181 Misc.2d 186 (Queens Cty. Ct. 1999) (where the court permitted a defendant to introduce a psychiatric report "in place at the time of the crime" at the sentencing phase of trial, even though he did not file a CPL § 400.27 (13) Notice until after his conviction, and refused to impose monetary sanctions on defendant despite his apparent intentional late filing); People v. Mateo, 177 Misc.2d 814 (Mon. Cty. Ct. 1998) (where the court deferred defendant's obligation to file a CPL § 400.27 (13) Notice until the completion of the guilt phase of trial).
This court shall require defendant to serve and file a notice of defendant's intention to offer psychiatric evidence at the penalty phase of his capital trial before the presentation of evidence at the guilt phase. This ruling sufficiently complies with the mandate of CPL § 400.27 (13) without "unfairly prejudic[ing] the defense." Cf. People v. Mateo, supra. at 816. As CPL § 400.27 (13)(c) specifically states, an application for a psychiatric examination of the defendant, including its timing, is subject to further order of this court Id.;see People v. McCoy, supra. at 3.
For the foregoing reasons, the People's motion entitled DA-3 and defendant's cross-motion is denied. Defendant's motion entitled DEF-59 is granted. Defendant shall be required to serve and file a CPL § 400.27 (13) notice after the empanelment of the jury, but before the parties's opening statements scheduled for March 21, 2001.