People v. Kindt

Fern S. Adelstein, Olean, and Villarini & Henry, L. L. P., Hamburg (Daniel J. Henry, Jr., of counsel), for defendant. Edward M. Sharkey, District Attorney of Cattaraugus County, for plaintiff.

OPINION OF THE COURT

LARRY M. HIMELEIN, J. The People have moved for an order permitting them to be present during psychiatric or psychological examinations of defendant by mental health professionals hired by the defense. The People claim they are entitled to attend such examinations pursuant to People v Pitts (93 NY2d 571) and CPL 60.55. the People argue that because a defendant is entitled to have his attorney present at an examination conducted by a prosecution psychiatrist, it is unfair for the People not to be allowed at a psychiatric examination done by a defense psychiatrist. While the court might be somewhat sympathetic to that argument, it is not for this court or any other to second-guess the Legislature. As is often pointed out, discovery is strictly a creation of the Legislature and if the Legislature does not provide for a certain type of discovery, it is not for the courts to provide it (see, e.g., Matter of Pirro v LaCava, 230 AD2d 909, lv denied 89 NY2d 813). Moreover, there are ample reasons why the Legislature might choose to prevent a prosecutor from being present during a defense psychiatrist interview of a defendant. At the time of the examination, it may be unclear whether a psychiatric defense will ever be invoked. The examination may reveal a myriad of prior misconduct or other crimes evidence on the part of a defendant that the prosecutor would then proceed to investigate. While much of this would be admissible at trial if the defendant invoked a psychiatric defense (see, CPL 60.55), in the absence of such a defense, the information would be exceedingly helpful to the prosecution. Finally, it is inconceivable that the Legislature would enact one standard for an incarcerated defendant and one standard for a defendant who has been released on bail or recognizance. A defendant who has been released would be free to make appointments with any number of psychiatrists in anticipation of a psychiatric defense. Here, the only reason the People were aware that a psychologist was going to visit defendant in jail was because they had been "tipped off" by jail personnel. For all these reasons, the defense motion to bar the People from attending examinations of defendant by a defense psychiatrist or psychologist is granted and the People's cross motion to allow their presence during such examinations is denied.