People v. Thorn

DENNIS F. BENDER, J. The defendant was convicted upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]); two counts of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]); two counts of criminal use of a firearm in the first degree (Penal Law § 265.09 [2]); and assault in the second degree (Penal Law § 120.05 [2]). Pursuant to a decision of the Appellate Division, Fourth Department, the judgment was reversed and a new trial granted, due to errors during the jury selection process (269 AD2d 756 [4th Dept 2000]). The matter is now before the court upon remittal and the defendant has filed an omnibus motion. This decision and order addresses the defendant's request for an order which precludes the People from using taped statements made by the defendant to a psychiatric evaluator. Prior to the commencement of the first trial, the defendant had filed a notice of intention to assert the affirmative defense of extreme emotional disturbance, and accordingly notified the People pursuant to CPL 250.10. The People then arranged to have their own psychiatrist meet with the defendant. A tape-recorded interview was conducted by the psychiatrist in the presence of the District Attorney and the defense counsel, and subsequently a transcript of the interview was provided to each attorney. (CPL 250.10 [3], [4].) After the retrial was ordered, the defendant withdrew his notice of intent to use any psychiatric defense and argues that in the event he takes the stand, the People should not be allowed to use any information gathered from the psychiatric examination of him. He argues first that he will suffer undue prejudice because any statements used would be taken out of context and would not be accompanied by expert interpretation. He further argues that the tape only exists by virtue of the statutory requirement of CPL 250.10 that required he will utilize the transcript to inquire whether or not the defendant recalls making the statement in question. If he denies the same, it may become necessary for the People to resort to having the psychiatrist testify (People v Grainer, 114 AD2d 285 [4th Dept 1986]), and an audibility hearing can be held at that time.