People v. Irwin

FRANK J. LaBUDA, J. This matter comes on by order to show cause (OSC) of the Sullivan County District Attorney seeking to strike defendant's notice of intent to proffer psychiatric evidence under CPL 250.10 or, in the alternative, for psychiatric examinations to be conducted by the prosecution and discovery. Defendant, along with codefendant, William C. Banker, was indicted by indictment No. 70/98 dated April 8, 1998, which was superseded by indictment No. 80/98 dated May 4, 1998, charging her with murder in the first degree, murder in the second degree and additional charges, and arraigned on both indictments. Said charges stem from the alleged torture, sexual abuse and death of Christopher Gardner, the 3½-year-old son of defendant Irwin. On July 28, 1999 defendant served upon the District Attorney, and filed with the Court Clerk, an undated "NOTICE OF INTENT TO PROFFER PSYCHIATRIC EVIDENCE CPL § 250.10" (Notice). Said Notice indicated that defendant would proffer certain psychiatric evidence at trial consisting of educational records from various elementary and secondary schools, records from the driven and not for the prosecutor's use for discovery purposes, and it is further ordered that the defense shall turn over to the prosecutor copies of all records and documents intended to be introduced by defendant during the guilt phase as to the intended diminished capacity defense, and it is further ordered that the defense shall furnish to the prosecutor a list of each lay witness it intends to call during the guilt phase as to the intended diminished capacity defense and the sum and substance of said witnesses' testimony, and it is further ordered that if the copies of the records and documents, witness list and sum and substance statements are not served upon the prosecutor by September 7, 1999 and if the defendant shall not cooperate in any examination or examinations conducted on behalf of the prosecutor, this court shall, upon application by the prosecutor, strike the defendant's Notice herein and preclude any psychiatric evidence sought to be introduced by the defendant at the guilt phase of the trial. [*] It is axiomatic that a Notice which gives the prosecution no indication as to which CPL 250.10 subdivision is being relied upon by the defendant in her defense is an abstraction. "Because a CPL 250.10 (1) (a) insanity affirmative defense differs from the one described in CPL 250.10 (1) (c)," actual notice of the defendant's intended defense is necessary to the Notice or it is flawed. (People v Almonor, 93 NY2d 571, 580 [1999].)