Glenn Dunn was fourteen, and at about ten o'clock on the night of September 22, 1980, he was waiting in a car outside the Tops supermarket at Genesee and Floss Streets on Buffalo's East Side while a friend went into the store. A man in a hooded sweatshirt who had been sitting near the entrance with a brown shopping bag at his feet walked to the car and fired four shots into it. A shopper who had passed within arm's reach of the man going in saw him fire and saw his face as he turned to run. At 12:20 the next afternoon Harold Green, thirty-two, was shot twice in the head as he sat in his car in a Burger King parking lot on Union Road in Cheektowaga; a woman leaving the restaurant saw a man in khaki run behind the next car with a crumpled grocery bag under his arm. That night Emanuel Thomas, thirty, was shot once in the head as he walked with a friend down Zenner Street. All three were Black, and all three were killed with the same .22-caliber gun.
The investigation led to Joseph Christopher, a Buffalo man who had enlisted in the Army and was a private at Fort Benning, Georgia. In January 1981 he was locked in the stockade there for attacking a Black soldier, and later, on the psychiatric ward of the base hospital, he told military staff that he had killed several Black men in Buffalo. Shell casings found at his family's home and at its hunting camp in Ellington, New York, had been fired by the same gun as those at the three shootings, and he was known to have owned a Ruger 10/22, the kind of rifle used. He waived a jury, represented himself, and was convicted of three counts of murder after a trial before a judge alone.
The file holds three opinions. The Appellate Division's 1984 decision affirms that conviction and sets out the killings, the investigation and the pretrial proceedings in detail. In July 1985 the Court of Appeals reversed it, four to two, holding that at the hearing on whether Christopher had become fit to stand trial after a period of psychiatric commitment, the judge had wrongly refused to hear expert testimony his lawyers offered, even though Christopher himself opposed the hearing; the court ordered a new competency hearing and, if he was fit, a new trial. The 1991 decision affirms the result of that retrial in Erie County Court: three convictions of manslaughter in the first degree, not murder. It finds that the prosecutor's conduct in front of the jury was improper, as the special prosecutor conceded, but that the trial judge kept it from doing harm. Christopher died of cancer in Attica Correctional Facility on March 1, 1993, at thirty-seven.
Accounts of the case disagree about how it ended. Some give a second-degree murder conviction after the retrial with a sentence of sixty years to life, and some date the retrial to 1985 or 1987. The 1991 opinion is the primary record here, and it describes three first-degree manslaughter convictions on appeal from Erie County Court; a Buffalo television report from 2016 gives the same outcome, calling it a compromise verdict on extreme emotional disturbance after his new lawyers conceded the killings and argued insanity. The opinion does not name the three victims of the retrial, and the page does not assume it. The Court of Appeals' 1985 decision is preceded by the reporter's summary of the parties' arguments, and Judge Simons, joined by Judge Jasen, dissented.
The shopper who saw the Tops shooting, a second shopper who corroborated him, the woman at the Burger King and a friend of Christopher's who testified about his rifle are reduced to initials, and the house number of his family's home is cut. The three murdered men, the Army officers and staff at Fort Benning, police, lawyers, judges and the psychiatrists and firearms examiners who testified are named as the courts named them. The text is the reporters' typeset text, in the public domain. The scan misreads Fort Benning as Fort Penning and Ruger as Huger in places, and those readings are left as they are.
The People of the State of New York, Respondent, v Joseph G. Christopher, Appellant.
Fourth Department,
May 25, 1984
APPEARANCES OF COUNSEL
Rose H. Sconiers (John Ziegler of counsel), for appellant. Richard J. Arcara, District Attorney (John DeFranks of counsel), for respondent.
[OPINION BY Moule, J. type=majority]
OPINION OF THE COURT
Moule, J.
Defendant was convicted on three counts of second degree murder arising from the shooting deaths of three black males over a 26-hour period in September, 1980 on the east side of Buffalo. Defendant raises several contentions on appeal in support of his claim that his convictions must be reversed. An analysis of these contentions requires a recitation of the facts surrounding these homicides and the extensive pretrial proceedings which were conducted.
I
Glenn Dunn, a 14-year-old black male, was shot in the side of the head with a .22 caliber gun while he waited in a car outside a Tops Supermarket at the corner of Genesee and Floss Streets for a friend who had gone into the store. The shooting occurred at approximately 10:00 p.m. on September 22,1980. R.O. left his home at 9:30 p.m. that same evening and walked to the Tops market to buy cigarettes. R.O. saw a white male, wearing a hooded sweatshirt, sitting near the store and passed within arm’s reach of him upon entering the store. R.O. noticed a brown shopping bag sitting at the man’s feet. R.O. spent about five minutes in the store and, upon leaving, observed the man he had seen earlier standing by a car at the rear of the parking lot. R.O. witnessed the man fire four shots into the car. When he was finished shooting, the assailant turned around and R.O. could again see his face before the man fled. R.O. later described the man he had seen as being in his twenties, having wavy, light-brown hair and wearing silver, metal frame glasses. Police later recovered three shell casings and bullet fragments from the scene of the crime.
At approximately 12:20 p.m. on September 23, 1980, Harold Green, a 32-year-old black male, was shot and killed by two gunshots to the head from a .22 caliber weapon. At the time, Green was seated in his car in the parking lot of a Burger King restaurant on Union Road in Cheektowaga. L.S. had gone to the same restaurant for lunch at approximately 12:05 p.m. and was walking out of the restaurant when the shooting occurred. As she approached her car, she saw a man running behind the car next to hers. The man ran to a restaurant adjacent to the Burger King and disappeared behind a corner of it. L.S. described the man as being about 5 feet 7 inches or 5 feet 8 inches tall and weighing approximately 150 pounds. She stated that he was wearing a waist-length, khaki-colored jacket, khaki trousers and a khaki-colored hat with a brim all the way around. She thought he was a younger man because of the way he ran; she also noticed that he was holding a crumpled brown grocery bag under his arms. Police recovered one shell casing and bullet fragments at the scene.
Later that same day, at approximately 11:30 p.m., Emanuel Thomas, a 30-year-old black male, was killed by a single shot to the head from a .22 caliber weapon. Thomas was shot as he walked with a friend down Zenner Street by an assailant, described only as a white 18- to 19-year-old male. The assailant was observed wearing a watch cap. Police recovered three shell casings and bullet fragments at the scene.
An extensive investigation ultimately led police to suspect defendant Joseph Christopher, a United States Army private stationed at Fort Penning, Georgia. Christopher had been imprisoned in the Fort Penning stockade in January, 1981 for attacking a black male soldier and was awaiting trial on the charge of assault with intent to kill. While he was awaiting trial on that charge, defendant began to fast for fear the food he was being served was poisoned. Defendant lost between 25 and 30 pounds and was subsequently transferred to the psychiatric unit (the “P-4 ward”) at the base hospital. Defendant was released from the hospital and returned to the stockade in early April but was readmitted to the psychiatric unit after he had cut himself with a razor blade.
Captain Pernard Purgess, a staff nurse on the P-4 ward, conducted an intake interview of defendant for readmission to the unit on April 10, 1981. During this standard question and answer session, defendant asked Purgess if he was aware of the killings in Puffalo. When Purgess replied that he was not, defendant told him that he had killed 13 people, some with a .22 caliber gun. When Purgess asked why he had killed the people, defendant said he had done it because of an uncontrollable impulse. Defendant told Purgess that he intended to notify law enforcement officials of his involvement in the killings. Defendant made similar admissions to Specialist Christopher Corwin, an MP assigned to guard defendant while he was at the psychiatric unit, and Lieutenant Dorothy Anderson, a psychiatric nurse on the B-4 ward. Defendant approached Anderson on April 13, 1981 after a group therapy session and told her that he had something he wanted to tell her about the commission of a crime. Anderson asked defendant if he had committed a crime and defendant responded that he had murdered some people, but did not remember how many. In response to Anderson’s further inquiries, defendant stated that all of the victims were nonwhite males and that all of the killings had occurred between September, 1980 and January, 1981.
On April 24, 1981, defendant asked to speak with Captain Aldrich Johnson, the officer in charge of the Fort Benning stockade. At this time Johnson was aware that defendant, principally as a result of the statements he had made to Captain Burgess, Specialist Corwin and Lieutenant Anderson and his physical resemblance to the composite description police had put together, had become a suspect in the Buffalo killings. The two men engaged in a lengthy conversation in Johnson’s office covering many topics. Johnson, who knew that defendant had told others at Fort Benning of his involvement in the Buffalo killings, sought to gain defendant’s confidence so that defendant would speak freely with him; Johnson did, however, advise defendant that he would report anything defendant told him to his superiors. Nonetheless, defendant refused to say anything about the killings. At one point, a female friend of Johnson’s stopped by and pointedly asked defendant if he had committed the crimes in Buffalo; defendant’s response was that “people say I did”.
Johnson and defendant spoke again on both April 25 and 26 during routine checks of the stockade facility made by Johnson. Both of these conversations were initiated by defendant. On April 25, defendant made a dietary request to Johnson and also asked if he could speak to the chaplain. On April 26, defendant asked to speak with Johnson to ask permission to have a musical instrument in the stockade. When Johnson approached defendant’s cell, defendant told him he had done “the thing” in Buffalo. Johnson then asked defendant if he wanted to speak with the detectives from Buffalo, but he declined. This last conversation was overheard by Correction Specialist Richard Morganstern.
Warrants to search defendant’s home on Weber Street in the City of Buffalo, a shed adjacent to the home and a family hunting camp in Ellington, New York, were sought by Buffalo police on April 22,1981, based principally upon the following grounds: defendant’s admissions; his physical resemblance to the composite drawing of the assailant; the fact that defendant was known to previously have possessed a Ruger 10/.22 gun, the type of gun firearms experts believed was used in the Dunn, Green and Thomas homicides, and various hunting knives; and defendant’s unprovoked attack on a black male soldier. The warrants were issued and authorized police to seize defendant’s Ruger 10/.22, .22 caliber ammunition, .22 caliber expended casings, and various types of hats, knives and jackets. The searches were conducted the next day; police seized various .22 caliber ammunition, several knives, a green Army-style rain jacket, a leather brim hat, a black knitted watch cap, and three spent .22 caliber casings, one of which was bent.
Defendant was indicted for the murders of Dunn, Green and Thomas on April 29,1981. A lineup was subsequently held on May 12, 1981. While R.O. did not identify defendant at the lineup as the man he saw shoot Glenn Dunn, he later told an officer who had previously questioned him that he could make an identification. R.O. then identified defendant as the man he had seen shoot Glenn Dunn. He explained that he had initially chosen not to make a positive identification so as to avoid “getting involved”.
II
Defendant was arraigned on May 11, 1981 and an order directing the examination of defendant pursuant to CPL article 730 was granted at that time. Defendant was then examined by two psychiatrists, Drs. Molnar and Wads-worth, and found fit to proceed.
Defense counsel thereafter moved for the suppression of the following: defendant’s statements to military personnel at Fort Benning; the eyewitness identification of defendant by R.O. and the other people who had identified him as being at Tops on the night of the Dunn killing; and the evidence police had obtained in searching defendant’s house, the shed attached to the house and the family hunting camp. After lengthy oral argument on these matters, the hearing court ruled on defendant’s motions. It held that the lineups were not suggestively conducted and, hence, the eyewitness identifications should not be suppressed. Further, it found that the search warrants issued in this case were supported by sufficient probable cause and, additionally, that the articles seized by police were within the scope and obvious intendment of the warrants and supporting papers. Finally, the court partially granted defendant’s motion to suppress the statements he had made at Fort Benning. The court suppressed defendant’s response to Corwin’s inquiry after defendant told him he was a mass murderer, but found that the statements were otherwise voluntary and spontaneous and not the result of any interrogation by Corwin. The court also suppressed the April 24, 1981 conversation between Aldrich Johnson and defendant.
As to the statements made to Nurses Anderson and Burgess, the court denied the suppression motion stating that “[tjhey were not persons acting under direction of or in cooperation with law enforcement either military or nonmilitary”. The court rejected defendant’s claim that the statements made to Anderson and Burgess were privileged communications, finding that defendant did not contemplate confidentiality when he made them.
After the court denied defendant’s motion for a severance of the three second degree murder charges, the case proceeded to jury selection.
After jury selection had begun, defendant informed his counsel that he wished to waive his right to a jury trial. At this point, defense counsel requested further CPL article 730 competency examinations; this request was granted by the court and defendant was subsequently re-examined by Drs. Molnar and Wadsworth. While Molnar once again found defendant competent to stand trial, Wadsworth altered his previous opinion and found that defendant was unable to assist in his defense and, hence, incompetent to stand trial. Following the receipt of the doctors’ reports, the court directed further CPL article 730 examinations to determine whether defendant had the capacity to understand the proceedings against him and assist in his own defense. Pursuant to that order, defendant was then examined by Drs. Joseph, Park and Rubenstein. Rubenstein found defendant to be competent, but Park and Joseph both determined that defendant lacked the capacity to assist in his own defense.
A competency hearing was then held at which Drs. Rubenstein and Molnar testified for the People and Drs. Park, Joseph and Wadsworth testified on behalf of the defense. Additionally, one of the prosecutors testified that, during the pretrial proceedings, he had overheard defendant conversing with his counsel demonstrating his ability to assist in his own defense. The court also engaged in a lengthy discussion with defendant concerning his age, education and familiarity with the criminal justice system. During this colloquy, defendant repeatedly refused to give his reasons for waiving his right to a jury trial. The court found that the People had failed to show, by a preponderance of the evidence, that defendant was capable of assisting in his own defense and, hence, competent to stand trial. Accordingly, the court temporarily committed defendant to the custody of the State Commissioner of Mental Hygiene for treatment. Defendant was then sent to the Mid-Hudson Psychiatric Center.
After spending about two months at Mid-Hudson, defendant was certified ready for trial by the director of the facility. After speaking with defendant upon his return from Mid-Hudson, defense counsel expressed to the court their belief that defendant’s condition was no different from what it had been prior to his being sent to Mid-Hudson and requested a second competency hearing. Defendant, however, adamantly opposed his counsel’s attempts to have him declared unfit for trial. Defendant went so far as to bring a copy of CPL article 730 into court and argue that, since the statute relating to competency hearings provided that either the defendant or the District Attorney could request a hearing, his attorneys were without power to request a hearing in contravention of his wishes. The court, on its own motion, elected to hold a second competency hearing to satisfy itself of defendant’s capacity to stand trial.
The court determined that the only psychiatric testimony it was going to initially allow at the CPL 730.30 (subd 2) hearing it had called for was the testimony of the Mid-Hudson psychiatrists who had prepared the reports underlying the Superintendent’s decision that defendant was fit to proceed. While the court denied defense counsel’s request for further psychiatric examinations conducted by the same psychiatrists who had examined defendant prior to the first competency hearing, it left open the possibility that further examinations might be appropriate if it was not satisfied with the expert testimony of the Mid-Hudson psychiatrists. The court indicated, however, that defense counsel and other appropriate witnesses could testify on defendant’s behalf at the upcoming hearing. Hence, the only limitation placed upon the defense at the hearing was that it was not allowed to present expert testimony regarding defendant’s psychiatric condition.
The sole witness to testify at the second competency hearing was Dr. Chellappa, the psychiatrist charged with defendant’s care at Mid-Hudson. Chellappa testified at the hearing that he did not see any evidence of mental illness from the time defendant was admitted to Mid-Hudson. He also stated that, during his stay at Mid-Hudson, defendant’s mental state improved and he became less withdrawn and more verbal with the staff. Chellappa testified that defendant told him he did not want a jury trial because he was afraid the jurors would be affected by the publicity surrounding the case. Dr. Chellappa concluded that it was defense counsel’s inability to establish a rapport with defendant that led to any communication problems between them. The court ultimately determined that defendant was not an incapacitated person, based upon the following factors: the testimony of Dr. Chellappa, which it found to be convincing; the court’s observations of defendant speaking with his attorneys; the court’s various conversations with defendant; and defense counsel’s earlier position that defendant was competent to stand a jury trial.
After it had determined that defendant was competent to stand trial, the court advised defendant of his right to waive a jury trial as follows: “First of all, as you know, as you were told previously, the defendant may at any time before trial waive a jury trial and consent to a trial without a jury of the indictment. Such waiver must be in writing and must be signed by the defendant in person, in open Court, in the presence of the Court and with the approval of the Court. The Court must approve the execution of such waiver unless it determines that it is tendered as a stratagem to produce an otherwise impermissible procedural advantage or that the defendant is not fully aware of the consequences of the choice he is making. If the Court disapproves the waiver, it must state upon the record its reasons for such disapproval.” The court then went on to thoroughly explain the “advantages” offered to a criminal defendant by a jury trial and to express its opinion that defendant should elect to be tried by a jury. Defendant repeatedly stated that he understood what the court was saying and continued, contrary to his attorneys’ advice, to request a jury waiver. Nonetheless, the court asked defendant to heed the advice of his attorneys and adjourned the proceeding until the next day so as to give him a chance to think his decision over.
The next day defendant again stated that he wished to waive a jury trial. When asked if he understood that a nonjury trial meant trial by a Judge, defendant replied: “Your Honor, we have been over this on many occasions. You asked me, told me I was going to come here this morning and you would pose the same question again, jury or non-jury trial. I’m here. I said non-jury trial.” The court then asked counsel whether they had spoken with defendant about the matter since the day before and was informed that they had. In response to a final inquiry by the court concerning whether he understood what he was doing, defendant responded: “Your Honor, I have been sitting here for I don’t know how long, and I have made my decision and that’s the way I’m.going to stand.” The court thereafter concluded: “Well, the Court, as you know, yesterday found that the Court is satisfied the defendant is not an incapacitated person, meaning that he is not a defendant who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense. The matter has been reviewed so many times with the defendant by me and by his counsel both presently and in the past several months, that I’m satisfied as to the requirements of Criminal Procedure Law Section 320.10 and I make the findings contained herein.”
Ill
At trial, R.O. testified that he saw defendant shoot Glenn Dunn at approximately 9:45 p.m. on September 22,1980. After fully explaining the opportunity that he had to view defendant at the crime scene, he testified that on May 12, 1981 he identified the defendant at a police lineup. Finally, he testified that he initially lied about not identifying defendant because of his reluctance to become involved.
M.G., another supermarket patron, fully corroborated the details of R.O.’s testimony. After describing the dress, demeanor and position of a man she observed near the store entrance immediately prior to the Dunn murder, she identified defendant as that man. M.G. also recounted that on May 12, 1981 she identified defendant during a pretrial lineup.
D.R., a close personal friend of the defendant, also testified for the prosecution. He said that he was generally familiar with firearms and had seen the defendant in possession of a Ruger 10/. 22 rifle on many occasions during the period from 1976 to 1979 at the defendant’s home. To his knowledge, this rifle had never been disposed of.
Through the numerous other witnesses who testified, the police were able to piece together a description of the assailant and a list of unusual clothing and other personal items that would later circumstantially link defendant to the Glenn Dunn, Harold Green and Emanuel Thomas murders.
The firearms identification testimony provided by Michael Dujanovich was a critical part of the People’s case. Employed by the Erie County Department of Central Police Services Forensic Laboratory, Dujanovich provided the firearms identification testimony that linked defendant to all three homicides. Based on his expert opinion that ten .22 caliber cartridges, seven recovered at the scene of the three murders and three seized from the defendant’s home and hunting camp, were all fired from the same 10/.22 caliber Ruger semiautomatic rifle, the prosecution concluded that defendant was the lone gunman responsible for the “.22 caliber killings”.
Robert Perrigo, the director of the Erie County Forensic Laboratory and supervisor of Mr. Dujanovich, next testified that he made an independent analysis of the cartridges and concurred in Dujanovich’s conclusion that they were fired from the same gun.
Finally, the People concluded their direct case with testimony from: Father Michael Freeman; Private Christopher Corwin; Captain Bernard Burgess; Lieutenant Dorothy Anderson and Correction Specialist Richard Morgan-stern. All of these witnesses testified that defendant admitted to them, during various conversations, that he was responsible for killing numerous black men in Buffalo and in New York City.
At the close of proof, defendant’s motion to dismiss the charges for insufficiency of proof was denied. On April 27, 1982 the court returned a guilty verdict on each of the second degree murder counts. At sentencing, on May 24, 1982, the court first denied the defendant’s motion to set aside the verdicts and then sentenced him to consecutive indeterminate terms of incarceration of 25 years to life on count one, 20 years to life on count two, and 15 years to life on count three.
IV
Defendant raises seven contentions on appeal: (1) that he was denied due process of law when the hearing court refused to allow him to present expert psychiatric testimony at the second competency hearing; (2) that the court erred in accepting his written jury waiver; (3) that he was deprived of a fair trial by reason of the prosecution’s failure to turn over favorable firearms evidence prior to trial; (4) that the warrants issued for the search of defendant’s home and his family’s hunting camp were not supported by probable cause, that certain items were seized beyond the scope of the warrant and, further, that the court erred in refusing to hold a hearing on the question of whether the affiant made false and misleading statements in support of the warrants; (5) that the hearing court erred in refusing to suppress certain conversations between himself and various persons at Martin Army Hospital; (6) that the trial court erred in refusing to sever the three second degree murder counts in the indictment; and (7) that defendant’s convictions under the second and third counts of the indictment were based upon insufficient evidence.
Defendant’s first contention is that he was deprived of due process of law when the hearing court refused to allow him to present expert psychiatric testimony at the second competency hearing. In analyzing this contention, it is necessary to review both CPL article 730, the statutory framework governing competency determinations, and the procedures employed by the court in this case.
When defendant was returned from Mid-Hudson, he was entitled, via CPL 730.60 (subd 2) and 730.30 (subd 2), to request a second competency hearing. CPL 730.60 (subd 2), governing the procedures to be followed after a defendant is found competent to stand trial by the superintendent of the facility where he was sent, provides in relevant part: “[WJhen a defendant is in the custody of the commissioner pursuant to a temporary order of observation or an order of commitment or an order of retention, the criminal action pending against the defendant in the court that issued such order is suspended until the superintendent of the institution in which the defendant is confined determines that he is no longer an incapacitated person. In that event, the court that issued such order and the appropriate district attorney must be notified, in writing, by the superintendent of his determination. The court must thereupon proceed in accordance with the provisions of subdivision two of section 730.30 of this chapter.” CPL 730.30 (subd 2) provides: “When the examination reports submitted to the court show that each psychiatric examiner is of the opinion that the defendant is not an incapacitated person, the court may, on its own motion, conduct a hearing to determine the issue of capacity, and it must conduct a hearing upon motion therefor by the defendant or by the district attorney. If no motion for a hearing is made, the criminal action against the defendant must proceed. If, following a hearing, the court is satisfied that the defendant is not an incapacitated person, the criminal action against him must proceed; if the court is not so satisfied, it must issue a further order of examination directing that the defendant be examined by different psychiatric examiners designated by the director.”
Since the report submitted to the court in this instance, completed by Dr. Chellappa and approved by the Superintendent of Mid-Hudson, concluded that defendant was not an incapacitated person, a second competency hearing would have been required if either the defendant or the District Attorney had so requested. Neither of these parties, however, requested a second hearing; indeed, defendant strenuously argued against his own counsel’s attempts to have him declared unfit for trial. Nonetheless, the court held a second capacity hearing on its own motion.
In determining whether the hearing court’s refusal to allow the defense to present its own expert psychiatric testimony at the second competency hearing deprived defendant of due process, it is important to note that CPL article 730 does not specifically state what procedures are to be followed at a capacity hearing. Additionally, there is a little helpful case law concerning hearings under article 730 in general (see, e.g., People v Gans, 119 Misc 2d 843, 846; People v Angelillo, 105 Misc 2d 338; People ex rel. Anderson v Superintendent of Creedmoor State Hosp., 40 NYS2d 84 [decided under Code Crim Pro, §§ 662-a, 662-b]) and none dealing with the situation presented here: whether a defendant is entitled to present expert psychiatric testimony at a second competency hearing held on the court’s own motion. A review of the circumstances surrounding the court’s decision leads to the conclusion that the court’s action was justified and that defendant was not deprived of due process.
Defendant, himself, steadfastly maintained that he was competent to stand trial and refused to request that a second hearing be held. He went so far as to argue that no hearing should be held under article 730 since neither he nor the District Attorney had requested one (CPL 730.30, subd 2). In ordering a hearing on its own motion, the court was obviously concerned with protecting the defendant’s rights; it wanted to assure itself that defendant was competent to stand trial. In assessing defendant’s current mental state, the court felt that the most relevant expert evidence available was the testimony of the doctors who had examined defendant at Mid-Hudson and, accordingly, limited the psychiatrists who could testify at the hearing to those who examined defendant at Mid-Hudson. Since the court ordered the hearing on its own motion to resolve any doubts it had about defendant’s competency, we believe it was reasonable for it to limit the expert testimony produced at the hearing. The legislative history of the 1981 amendment to CPL 730.60 (subd 2) supports such a flexible interpretation of the hearing required after a defendant has been certified ready for trial: “Although a defendant is currently entitled to a capacity hearing after an initial psychiatric examination current language in § 730.60 (2) does not explicitly state that he is so entitled after a temporary order of observation or an order to commitment or retention. This bill ensures that the court, the district attorney and the defendant retain the right to contest the determination of the department. Passage of this bill will prevent the mental hygiene department from making a determination of a defendant’s capacity without the court system’s assent. Since the Court has made an initial determination on a defendant’s capacity, it should have the opportunity to conduct a new hearing before accepting the department’s findings.” (NY Legis Ann, 1981, p 424.) The thrust of this language is to assure that, upon request of the defendant, District Attorney or the court, the Mental Hygiene Department’s determination will be reviewed; it does not mandate that a full adversary hearing be held in every instance.
Additional support for the court’s action comes from the last sentence of CPL 730.30 (subd 2): “If, following a hearing, the court is satisfied that the defendant is not an incapacitated person, the criminal action against him must proceed; if the court is not so satisfied, it must issue a further order of examination directing that the defendant be examined by different psychiatric examiners designated by the director” (emphasis added). The logical import of this language is that a limited initial hearing should be held and, if the court is still not satisfied as to defendant’s competency, a further hearing conducted at which other psychiatrists would be allowed to testify. This is precisely what the court did in this case: while it limited expert testimony to psychiatrists who had examined defendant at Mid-Hudson, it left open the possibility that future examinations by different psychiatrists might be appropriate if, after the initial hearing, it was not satisfied as to defendant’s capacity to stand trial.
It is also important to note that defendant was not deprived of a meaningful opportunity to be heard at the second competency hearing. Defense counsel was given an extensive opportunity to cross-examine Dr. Chellappa and, presumably from the court’s earlier recognition that case law allowed certain lay persons to testify at competency hearings, could have produced nonexpert testimony concerning his behavior. Finally, the court’s decision explicitly took into consideration the testimony of the three psychiatrists who had testified on behalf of defendant at the first competency hearing. Thus, the court’s action did not amount to a deprivation of defendant’s right to due process; the court’s action can best be summarized as an attempt to protect defendant’s rights without resorting to a renewed battle of expert witnesses unless it was absolutely necessary to do so.
Defendant’s second contention is that the court erred in accepting his written jury waiver.
A defendant has a constitutional right to waive a jury trial (NY Const, art I, § 2; People v Davis, 49 NY2d 114; People v Duchin, 12 NY2d 351). Here, the court completely explained the requirements of a jury waiver, informed defendant of the differences between jury and nonjury trials, and advised defendant not to waive his right to be tried by a jury because of the advantages it offered to a criminal defendant. Defendant consistently stated he understood what the court was saying, but persisted in his request for a jury waiver.
Given this extensive colloquy between the court and defendant and the time given defendant to consult with his attorneys and consider his alternatives, “[i]t cannot be said that defendant’s assertions of his constitutional rights were not made knowingly and understanding^, based on an intelligent, informed judgment” (People v Davis, supra, p 119). To have denied defendant’s request under these circumstances would have constituted reversible error under the holding of People v Davis (supra). In reversing defendant’s conviction in Davis, the court stated: “If the rights of self-representation and of waiver of jury trial were not to be honored on this record, it is unlikely that either ever would be. Examination of this record fails to suggest any further action or submission defendant might have taken or made in support of his right or intention to exercise his constitutional privileges. By similar token the same examination discloses that the trial court was wholly convinced that it would not be in the best interests of defendant either to waive a trial by jury or to represent himself rather than to be represented by counsel. The inference may be drawn that the trial court — unquestionably in furtherance of what it perceived to be defendant’s best interests — was determined to deny defendant’s applications no matter what he said or what the record otherwise showed. We conclude, however, that in its rulings the court assumed to itself authority and responsibility for determining that it would not be in defendant’s interest for him either to waive a jury trial or to represent himself. In so doing the court arrogated to itself and denied to defendant the exercise of rights constitutionally guaranteed to him” (49 NY2d 114, 120, supra).
Here, the court properly considered defendant’s wishes and did not arrogate to itself the ultimate decision of whether to waive the jury trial. The court, thus, properly accepted defendant’s jury waiver.
Defendant’s third contention is three pronged: (a) that he was denied a fair trial when the prosecution failed to turn over favorable firearms evidence prior to trial; (b) that he was improperly denied discovery of laboratory notes as required by CPL 240.20 (subd 1, par [c]); and (c) that testimony of Robert Perrigo, a firearms expert, should have been precluded because of the prosecution’s failure to make his conclusions known during pretrial discovery.
With respect to the firearms evidence, Michael Dujanovich, a firearms identification examiner, testified concerning ten .22 caliber cartridge casings offered as evidence against the defendant. The casings were identified as follows: exhibits 21, 22 and 23 were the three fired casings found at the scene of the Glenn Dunn homicide; exhibits 26, 27 and 28 were those fired casings found at the scene of the Emanuel Thomas homicide; exhibit 52 was the sole fired casing found at the scene of the Harold Green homicide; exhibit 97 was the misfired casing found at the defendant’s home; and exhibits 102-A and 102-B were the two fired casings found at a hunting cabin owned by defendant’s family.
Dujanovich testified that the science of firearms identification involves the analysis of markings on ammunition components. From an analysis of “class characteristics” of spent casings, it is possible to determine if two or more of such were fired in the same type or make of weapon. In determining whether particular casings came from the same gun, an expert looks for repeating microscopic striations called “individual characteristics”. Where sufficient common striations appear, there is a very low probability that the casings were discharged from different weapons and thus, conversely, a high probability they were discharged from the same weapon. Applying direct casing to casing comparison, Dujanovich concluded that the seven homicide scene casings were all fired from the same weapon, most probably a Ruger Model 10/.22 rifle.
Dujanovich next compared the misfired cartridge, exhibit 97, found in defendant’s home, to each of the homicide scene casings. He opined that all were fired from the same weapon.
Exhibit 102-B, one of the two casings found at the hunting cabin, was then compared to each of the homicide scene casings. Again the conclusion was that all were fired from the same weapon.
Exhibit 102-A, the bent second casing recovered at the hunting cabin, was not as conclusively compared. While it shared “class characteristics” similar to the homicide casings, because of its condition, its individual characteristics could only be positively matched by casing to casing comparison with 2 of the 7 homicide scene casings — exhibit 21 from the Dunn homicide and exhibit 52 from the Green homicide. Dujanovich then opined, however, that since casings 102-A, 21 and 52 were fired from the same weapon, and since 21 and 52 were from the same weapon as the other five homicide scene shells, then casing 102-A and the other five casings must have been discharged from the same weapon. His conclusion was based on the logical proposition that two things equal to the same thing are equal to each other.
Defendant attacks Dujanovich’s conclusion arguing that only direct casing to casing comparison is recognized as an acceptable firearms identification technique. This is allegedly shown by Dujanovich’s inability to cite an authoritative text, journal article or other publication sanctioning indirect comparison. He thus concludes that the failure to “positively” compare exhibit 102-A with five homicide scene casings, by direct comparison, was evidence favorable to the defendant required to have been disclosed under Brady v Maryland (373 US 83).
In Brady (supra), the Supreme Court held that the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or punishment. To be Brady material, however, the evidence must be materially exculpatory, i.e., favorable to the accused (see United States v Agurs, 427 US 97; People v Jones, 44 NY2d 76, cert den 439 US 846; cf., also, People v Gissendanner, 48 NY2d 543).
Here, defendant’s argument is misplaced because Dujanovich did not conclude that cartridge exhibit 102-A was fired from a different gun than the others. Rather, by “inferential analysis methodology”, he concluded that they were fired from the same gun. Thus, the only conclusion, if one was to be drawn from this testimony, was that cartridge 102-A was fired from the same gun as the other casings. While this may not have been as conclusively damaging as the direct, positive, casing to casing comparison made with casings 97 and 102-B, since Dujanovich did conclude that 102-A shared the same “class characteristics” as all other casings and all evidence pointed to a lone gunman using the same gun, it was another link tending to show that defendant’s gun was used in all three homicides; it was not supportive of defendant’s claim of innocence.
Defendant’s second argument is that he was improperly denied discovery of the laboratory notes forming the basis for the firearms identification report in contravention of CPL 240.20 (subd 1, par [c]). This claim is again tied in with the inferential analysis methodology concerning casing exhibit 102-A in that defendant complains that, had he been granted discovery of such notes, he would have been alerted to this allegedly faulty reasoning process. However, it is clear from Dujanovich’s trial testimony that he never committed any of this process to writing and, thus, discovery of his notes would have been of no assistance to defendant. In any event, however, the trial court was correct in ruling that any laboratory notes were more properly characterized as Rosario material (People v Rosario, 9 NY2d 286) and, thus, not available to defendant through pretrial discovery (People v Strong, 60 AD2d 792).
Defendant’s third argument, that Robert Perrigo’s firearms identification testimony should have been precluded for failure to make his conclusions known during pretrial discovery, is also without merit.
Considering that Perrigo’s initials appeared on all four laboratory reports, that his name appeared on the witness list and that defendant characterized his testimony in a trial objection as cumulative and merely bolstering of Dujanovich’s, we reject defendant’s claim that Perrigo’s testimony was surprising and unfairly prejudicial (cf. People v Payne, 52 NY2d 743). Additionally, since it is clear that the crucial firearms evidence was already properly in evidence through the testimony of Dujanovich and that Perrigo’s testimony neither varied from Dujanovich’s nor the reports provided, even were we to decide that Perrigo’s testimony should have been precluded, any error was harmless (People v Crimmins, 36 NY2d 230).
Defendant’s fourth contention is that the warrants issued for the search of his home, the shed adjacent to his home and his family’s hunting camp were not supported by probable cause, that certain of the items seized were beyond the scope of the warrants, and, further, that the court erred in refusing to hold a hearing on the question of whether the affiant made false and misleading statements in support of the warrant.
The first issue presented is whether there was sufficient probable cause to search the premises. Defendant argues that, since the three search warrants were for three different premises and were obtained upon the same information, there could not have been probable cause to search any single location and that, in any event, the information contained in the warrant application was stale.
It is fundamental that probable cause should be determined on the basis of practical, everyday considerations (see, e.g., United States v Harris, 403 US 573, 583; United States v Brinegar, 338 US 160,175; United States v Johnson, 461 F2d 285, 287). As the People point out, logic suggests that a person who has committed a crime and who wishes to conceal evidence thereof would choose to hide it at a place where he exercises some control; here, defendant’s residence and his family’s hunting cabin. Moreover, the narrow question of whether probable cause to search multiple locations can be based upon the same evidence has previously been answered in the affirmative (see, e.g., People v Alaxanian, 76 AD2d 187,189, affd 54 NY2d 725). The Court of Appeals has stated: “The ultimate answer to the [question of probable cause] is that as long as the evidence creates substantial probability that the seizable property will be on the premises when searched, the warrant should be sustained” (People v Glen, 30 NY2d 252, 259). A review of the information contained in the affidavit accompanying the warrant application demonstrates that the People met that burden and, hence, defendant’s first probable cause argument must be rejected.
The second argument presented under this issue is that the information contained in the warrant application was stale. The Supreme Court has said that proof of probable cause “must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time” (Sgro v United States, 287 US 206, 210). However, because the rate at which probable cause becomes stale can vary with the circumstances of the particular case, it is not determined simply by counting the number of days between the occurrence of the events relied upon and the warrant’s issuance (United States v Rahn, 511 F2d 290; People v Teribury, 91 AD2d 815). Rather, this determination rests upon the particular facts and circumstances of each case as presented to the magistrate at the time of the warrant application (Sgro v United States, supra, p 211; People v Nieves, 36 NY2d 396,402). Factors to be considered include the source of the information, the manner in which it was acquired, the extent to which the information was verified, and the nature of the crime (People v Hanlon, 36 NY2d 549, 559). Additionally, information may be acted upon as long as the practicalities dictate that “[p]robable cause existent in the past [may] continue” (United States v Brinklow, 560 F2d 1003, 1005, cert den 434 US 1047; People v Teribury, supra; cf. United States v Johnson, supra). This assessment “depends largely upon the property’s nature” (United States v Brinklow, supra, p 1006).
Here, the supporting affidavit made by the Erie County District Attorney on April 22, 1981 contained reliable, recent information from Captain Burgess and Lieutenant Anderson that on April 10 and April 13,1981, respectively, defendant admitted killing numerous people in Buffalo and New York City and stated that all the victims were nonwhite males. Furthermore, that the defendant had the ability, opportunity and propensity to commit these acts was also shown in the affidavit which recounted: that D.R., Officer Eugene Molino and Geraldine Lysarz knew that defendant owned and was emotionally attached to numerous weapons inherited from his father, including a .22 caliber Ruger 10/.22 rifle and assorted hunting knives; that during his leave defendant traveled through Buffalo and New York City on dates when black males were stabbed by an assailant matching defendant’s general description; and that defendant had committed a recent unprovoked attack against a black soldier that was similar in nature to the unprovoked attacks against black males in the Buffalo area. Defendant’s admissions and the other facts and circumstances contained in the affidavit freshened the otherwise stale information by D.R., a friend of defendant, who told police that he saw defendant with a 10/.22 Ruger rifle a year earlier. It justified the court in concluding defendant’s ownership of the Ruger was continuous. Based on the foregoing facts known to the magistrate and the conclusion from a firearms expert that the weapon used in the Buffalo killings was a .22 caliber 10/.22 Ruger rifle, the information was sufficiently fresh and issuance of the warrant proper.
The second issue presented regarding the legality of the searches is whether certain items were seized which were beyond the scope of the warrants, specifically a leather hat, various knives and an Army-style rain jacket. The hearing court sustained the seizure of these items on the ground that they were “within the scope and obvious intendment of the warrants and supporting papers” and, in any event, that the items were properly seized pursuant to the “plain view” doctrine due to their readily apparent incriminatory nature (see, e.g., Coolidge v New Hampshire, 403 US 443). A review of the warrants and the affidavit submitted in support of the warrant application clearly supports this finding.
The third issue regarding the search contention is whether the court erred in refusing to hold a hearing on the question of whether the affiant had made false and misleading statements used in support of the warrant. Defendant maintains that the affidavit submitted to the issuing magistrate was misleading in that it omitted the following information: that aspects of the description of the perpetrator of the crimes were inconsistent with defendant’s physical appearance; and the circumstances surrounding the defendant’s statements to the nurses, i.e., that he was a psychiatric patient.
Contrary to defendant’s position, an applicant for a search warrant is not required to provide the magistrate with all the information in his possession (United States v Charlton, 409 F Supp 1327, 1330-1331, affd 565 F2d 86, cert den sub nom. Jacek v United States, 434 US 1070). The information omitted from the instant application was, therefore, never required so long as probable cause was demonstrated. Although defendant claims that he made a substantial preliminary showing that the affidavit contained false and misleading statements, the record shows that all he did was point out that there were discrepancies in the descriptions given of the perpetrator of the crimes and that some of the descriptions were unable to be matched to him. The standard for determining whether a defendant is entitled to a hearing on the warrant application was set forth by the Supreme Court in Franks v Delaware (438 US 154, 171): “To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof * * * Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.” The information provided by defendant was patently insufficient to meet this standard and, hence, the court did not err in denying the hearing.
Defendant’s fifth contention, that the court erred in failing to suppress certain admissions, is a two-pronged argument: (a) that defendant’s statements to Corwin, Burgess, Anderson and Freeman were privileged; and (b) that defendant’s right to counsel and right against self incrimination were violated when Morganstern, a military policeman, was allowed to testify.
Defendant argues that the statements to Corwin, Burgess and Anderson were improperly admitted in violation of New York’s physician-patient privilege (CPLR 4504). He claims that the testimony showed that the object of the psychiatric ward is to create a “therapeutic milieu” designed to encourage patient interaction with the staff and get patients to talk about what is on their minds and what is troubling them. Defendant argues that his statements were made during this treatment process.
Defendant’s argument is clearly misplaced with respect to Specialist Corwin. Since he was a military police officer merely assigned to guard defendant and not a “doctor, dentist, or nurse”, nor acting in concert with covered medical personnel, he does not fall within the statute and, thus, statements made to him were not privileged (CPLR 4504).
With respect to Captain Burgess, a nurse, to whom the first admission was made during the intake interview, defendant expressed, contemporaneously with that admission, an intention to notify law enforcement officials. Consequently, the hearing court properly found that defendant never intended that the communication remain confidential and thus was not privileged. As this court noted in Bernstein v Lore (59 AD2d 650), “[i]n order for the privilege to attach, the communication must have been confidential in nature and the patient must have contemplated that it would be kept so” (see, also, People v Decina, 2 NY2d 133; Milano v State of New York, 44 Misc 2d 290; Fisch, NY Evidence [2d ed], § 546). Additionally, since defendant’s statement to Burgess was an unsolicited gratuitous comment, not a necessary incident to rendering professional service, it was not “information * * * acquired in attending a patient * * * necessary to enable him to act in that capacity” and was thus not privileged (see Fisch, NY Evidence [2d ed], § 546; McCormick, Evidence [2d ed], § 99; cf., also, Polsky v Union Mut. Stock Life Ins. Co., 80 AD2d 777).
Moving next to defendant’s communication to the second nurse, Lieutenant Anderson, a similar analysis is appropriate. At the time of defendant’s remarks to Anderson, he had already communicated essentially the same information to both Corwin and Burgess with no expectation that it be kept confidential. Thus the hearing court’s conclusion that this statement was not intended to be confidential is supported by the timing and circumstance of the prior admissions. Moreover, because the defendant repeated his admissions, the Court of Appeals reasoning in People v Al-Kanani (33 NY2d 260) is applicable here by analogy: “[O]nce the privilege is thus waived, there is nothing left to protect against for once the revelation is made by the patient there is nothing further to disclose Tor when a secret is out it is out for all time and cannot be caught again like a bird and put back in its cage. * * * The legislature did not intend to continue the privilege when there was no reason for its continuance and it would simply be an obstruction to public justice’ ” (supra, p 265, quoting People v Bloom, 193 NY 1, 10). In any event, however, by the time that defendant made the statements to Anderson, they were merely cumulative of his earlier nonconfidential, unprivileged remarks and, therefore, if there was error in admitting Anderson’s testimony, it was harmless (People v Crimmins, 36 NY2d 230, supra).
Defendant also claims that the priest-penitent privilege (CPLR 4505) was violated when Chaplain Freeman was permitted to testify at trial concerning a conversation he had with defendant at Fort Benning. The conversation objected to occurred in the stockade dining hall in January, 1981, during which the defendant stated: that he felt he was being harassed by blacks both in the training brigade and at the stockade; that blacks had directed derisive remarks at him, using terms such as “faggot” and “wimp”; that he was angered and “intensely” depressed by this treatment; that he felt persecuted; and that he had had trouble with blacks during high school. This claim of privilege would be meritorious but for defendant’s express authorization to Chaplain Freeman to reveal the conversation to police or medical officials “to get the help he needed at that time”. Chaplain Freeman’s unrebutted testimony, apparently found credible by the court, was a sufficient basis for the trial court’s ruling that defendant waived the priest-penitent privilege (CPLR 4505).
Defendant’s second argument is that his right to counsel and right against self incrimination were violated when Sergeant Richard Morganstern was allowed to testify at trial concerning a statement made by defendant to Captain Aldrich Johnson in Morganstern’s presence (Rhode Island v Innis, 446 US 291; Miranda v Arizona, 384 US 436). Morganstern testified that on April 26, 1981 the defendant requested to speak with Captain Johnson after having been told that permission to have a musical instrument while confined in the stockade could only be granted by Johnson, the confinement officer. Morganstern contacted Johnson who approached defendant’s cell and asked, “Well, what can I do for you, what’s up?” The defendant responded, “You know the thing in Buffalo, I did it.” Morganstern’s uncontradicted version of the circumstances and conversation surrounding defendant’s admission amply supports the court’s finding that it was a spontaneous, voluntary statement and not the product of interrogation calculated to elicit an incriminating response (Rhode Island v Innis, supra; People v Rivers, 56 NY2d 476; People v Chappie, 38 NY2d 112). Additionally, because defense counsel was fully apprised before trial that Morganstern was present during the defendant-Johnson conversation, defendant’s claim, that he was denied due process of law because Morganstern and not Johnson testified to this admission at trial, is likewise without merit.
Defendant’s sixth contention is that the trial court erred in refusing to sever the three second degree murder counts in the indictment. The basis of this contention is defendant’s claim that the court abused its discretion in denying his CPL 200.20 (subd 3) motion for severance. CPL 200.20 (subd 3) provides: “In any case where two or more offenses or groups of offenses charged in an indictment are based upon different criminal transactions, and where their join-ability rests solely upon the fact that such offenses, or as the case may be at least one offense of each group, are the same or similar in law, as prescribed in paragraph (c) of subdivision two, the court, in the interest of justice and for good cause shown, may, upon application of either a defendant or the people, in its discretion order that any one of such offenses or groups of offenses be tried separately from the other or others, or that two or more thereof be tried together but separately from two or more others thereof.” (Emphasis added.)
CPL 200.20 (subd 2) provides:
“Two offenses are ‘joinable’ when * * *
“(b) Even though based upon different criminal transactions, such offenses, or the criminal transactions underlying them, are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first; or
“(c) Even though based upon different criminal transactions, and even though not joinable pursuant to paragraph (b), such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law; or * *
The People argue that consolidation of the three counts in this case is supported by both paragraphs (b) and (c) of subdivision 2. The significance of this position is that a court is without discretion to grant a severance where joinder is effected pursuant to paragraph (b) (People v Lane, 56 NY2d 1, 7; People v Yuk Bui Yee, 94 Misc 2d 628). Hence, the threshold question to be addressed is whether “proof of the first offense would be material and admissible as evidence in chief upon a trial of the [others]” (CPL 200.20, subd 2, par [b]).
Here, proof that defendant was the perpetrator of the Glenn Dunn homicide was clearly material and admissible as evidence in the other two homicides. Since the identity of the defendant was established by eyewitness testimony in the Dunn homicide, and because the bullet casings found at the scene of the Dunn homicide positively correlated with the casings found at the other homicide sites and those found at defendant’s home and hunting cabin, the eyewitness identification of defendant as the perpetrator of the Dunn homicide was highly relevant to the identity of the perpetrator of the other homicides. This evidence was also admissible under the identity exception of the Molineux rule (People v Molineux, 168 NY 264) as it is applied in the joinder context (see People v Yuk Bui Yee, supra, pp 631-632).
Defendant’s seventh contention is that his convictions under the second and third counts of the indictment were insufficient as a matter of law. On appeal, the People are entitled to the benefit of every reasonable inference to be drawn from the evidence (People v Way, 59 NY2d 361), and we must assume that the court credited the prosecution’s evidence the full weight that might reasonably be accorded it (People u Benzinger, 36 NY2d 29). With these principles of review in mind, it is evident that the evidence presented at trial was legally sufficient to support the convictions.
The following evidence was presented with respect to both the second and third counts of the indictment: the spent shell casings found at the homicide scenes were determined to have been fired from the same gun as spent casings found at defendant’s home and hunting camp; defendant’s admissions to military personnel that he had killed several black males in Buffalo; and the fact that defendant was known to have possessed a Huger 10/. 22 rifle, the type of weapon used in the homicides. Further, in view of the expert firearms testimony that the same gun was used in all three homicides, the identification of defendant as the killer of Glenn Dunn took on additional probative significance with respect to the second and third counts.
In sum, while the evidence presented is circumstantial in nature, when considered in its entirety, it is sufficient to exclude to a moral certainty every reasonable hypothesis of innocence (People v Way, supra; People v Benzinger, supra).
The judgment should be affirmed.
Hancock, Jr., J. P., Callahan, Doerr and O’Donnell, JJ., concur.
Judgment unanimously affirmed.
Defendant had lived in Buffalo up until he reported to Fort Benning for training on November 13, 1980. He had enlisted in the Army on September 19, 1980.
Defendant spoke to Corwin in late March or early April, 1981 while Corwin was guarding defendant on the B-4 ward. Corwin was watching defendant while he slept when defendant awoke and asked Corwin whether he knew that defendant “was a mass murderer in Buffalo”. Corwin told defendant that he did “not want to hear any of this”. Defendant, nevertheless, went on to say that he had “killed some people in New York”. Corwin again told defendant that he did not want to hear about the killings and the conversation ended. Corwin subsequently related this information to his guard commander.
The knives were significant in demonstrating probable cause because defendant was, at that time, a suspect in a series of stabbings which had occurred between December 22, 1980 and January 1, 1981. The stabbings occurred in New York, Buffalo and Rochester and resulted in six fatalities. Defendant matched the general description of the assailant and, significantly, was on leave from Fort Benning from December 19, 1980 to January 2, 1981. Further, defendant was believed to have traveled by bus through the New York area en route to his Buffalo home on the date of the New York attacks.
This indictment was superseded by a second indictment on May 28, 1981.
The ground(s) for this ruling is not apparent from the court’s order.
Defense counsel was seeking funds from the court to conduct the proposed examinations due to defendant’s indigency.
Defense counsel was willing prior to the first competency hearing to withdraw the claim of defendant’s incompetence if the court would not approve defendant’s jury waiver.
CPLR 4504, entitled “Physician, dentist and nurse”, provides under subdivision (a): “Confidential information privileged. Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing or dentistry shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.”
While the indictment included a statement to the effect that the alleged offenses charged were similar in law, there is no statutory requirement that any and all grounds for joinder be asserted on the face of the indictment.
The People of the State of New York, Respondent, v Joseph G. Christopher, Appellant.
Argued March 27, 1985;
decided July 5, 1985
POINTS OF COUNSEL
John A. Ziegler and Rose H. Sconiers for appellant.
I. Appellant was denied compulsory process, due process of law and equal protection of the law when the court refused defense counsel an opportunity to present expert psychiatric testimony at the second competency hearing. (Bishop v United States, 350 US 961; Pate v Robinson, 383 US 375; Jenkins v McKeithen, 395 US 411; Morgan v United States, 304 US 1; Baltimore & Ohio R.R. Co. v United States, 298 US 349; Pate v Smith, 637 F2d 1068; Fuentes v Shevin, 407 US 67; Armstrong v Manzo, 380 US 545; Grannis v Ordean, 234 US 385; Washington v Texas, 388 US 14.) II. Appellant’s right to trial by jury was violated when the court below accepted the written jury waiver without establishing that such waiver was knowing, intelligent and voluntary, or that he was fully aware of the consequences. (Johnson v Zerbst, 304 US 458; Patton v United States, 281 US 276; Adams v United States ex rel. McCann, 317 US 269; Schneckloth v Bustamonte, 412 US 218; Duncan v Louisiana, 391 US 145; United States v David, 511 F2d 355; Faretta v California, 422 US 806; People v Mitchell, 61 NY2d 580; People v Kaltenbach, 60 NY2d 797; People v White, 56 NY2d 110.) III. The trial court erred when it upheld invalid search warrants issued without probable cause, and further, when it refused to hold a hearing on the affiant’s false and misleading statements used in support of the warrants. (Franks v Delaware, 438 US 154; Sgro v United States, 287 US 206; Durham v United States, 403 F2d 190; People v Loewel, 50 AD2d 483; Zurcher v Stanford Daily, 436 US 547; People v Teribury, 91 AD2d 815; Berger v New York, 388 US 41; People v Rainey, 14 NY2d 35; People v Baker, 23 NY2d 307; Coolidge v New Hampshire, 403 US 443.) IV. Appellant’s right to a fair trial was denied when the prosecution failed to provide favorable firearms evidence prior to trial and the court refused to grant a mistrial or adjournment in order that the defense would have reasonable opportunity to utilize this evidence. (Brady v Maryland, 373 US 83; United States v Agurs, 427 US 97; People v Consolazio, 40 NY2d 466; Giles v Maryland, 386 US 66; People v Simmons, 36 NY2d 126; United States ex rel. Meers v Wilkins, 326 F2d 135; Matter of Kapatos, 208 F Supp 883; Grant v Alldredge, 498 F2d 376.) V. The court below erred by permitting testimony of witnesses regarding privileged communications with appellant, which were statutorily protected. (Perry v Fiumano, 61 AD2d 512; People v Al-Kanani, 33 NY2d 260; Volkman v Miller, 52 AD2d 146, 41 NY2d 946; Matter of Lynch, 68 Misc 2d 78; Mayer v Albany Med. Center Hosp., 56 Misc 2d 239; People v Bartholomew, 73 Misc 2d 541; Nelson v Village of Oneida, 156 NY 219; Edington v Aetna Life Ins. Co., 77 NY 564; Matter of City Council of City of N. Y. v Goldwater, 284 NY 296; People v Decina, 2 NY2d 133.) VI. Appellant’s April 26,1981 statement to Aldrich Johnson was not spontaneous as a matter of law and was obtained in violation of appellant’s right to counsel and right to remain silent, as guaranteed by the New York State and United States Constitutions. (People v Lanahan, 55 NY2d 711; People v Lucus, 53 NY2d 678; People v Stoesser, 53 NY2d 648; People v Anderson, 42 NY2d 35; People v Maerling, 46 NY2d 289; People v Rivers, 56 NY2d 476; People v Townes, 41 NY2d 97; People v Roberson, 41 NY2d 106; Miranda v Arizona, 384 US 436; People v Chapple, 38 NY2d 112.) VII. There is insufficient evidence as a matter of law to support the convictions under counts 2 and 3 of this indictment and therefore they must be dismissed. (Jackson v Virginia, 443 US 307; In re Winship, 397 US 358; People v Molineux, 168 NY 264; People v Burke, 62 NY2d 860; People v Bretagna, 298 NY 323; People v Way, 59 NY2d 361; People v Barnes, 50 NY2d 375; People v Cleague, 22 NY2d 363; People v Benzinger, 36 NY2d 29; People v Kennedy, 47 NY2d 196.) VIII. The lower court abused its discretion as a matter of law when it denied the motion, pursuant to CPL 200.20 (3), for severance of the three second degree murder counts contained in the indictment. (People v Molineux, 168 NY 264; Drew v United States, 331 F2d 85; People v Yuk Bui Yee, 94 Misc 2d 628; People v Payne, 35 NY2d 22; People v Fisher, 249 NY 419; People v Stanley, 81 AD2d 842.)
Richard J. Arcara, District Attorney (John J. DeFranks, Jo W. Faber and Rosemarie A. Wyman of counsel), for respondent.
I. Defendant was not denied an opportunity to present evidence at the second competency proceeding wherein the court properly refused to order additional psychiatric examinations. In any event, the record in its entirety establishes defendant’s competency for trial. (Johnson v Harris, 682 F2d 49; People v Cona, 49 NY2d 26; Dusky v United States, 362 US 402; People v Hudson, 19 NY2d 137.) II. The jury trial waiver was properly accepted by the court. (People v Davis, 49 NY2d 114.) III. The search warrant was validly issued upon probable cause and properly executed by law enforcement officials. (United States v Harris, 403 US 573; Brinegar v United States, 338 US 160; United States v Brinklow, 560 F2d 1003, 434 US 1047; People v Teribury, 91 AD2d 815; United States v Johnson, 461 F2d 285; People v Alexanian, 76 AD2d 187, 54 NY2d 725; People v King, 61 NY2d 969; People v Warren, 61 NY2d 886.) IV. There existed no favorable firearms evidence to which defendant was entitled prior to trial, nor was it error for the court to allow both firearms examiners to testify. (Brady v Maryland, 373 US 83; People v Rosario, 9 NY2d 286; People v Strong, 60 AD2d 792; People v Gissendanner, 48 NY2d 543; People v Jones, 44 NY2d 76; People v Geaslen, 54 NY2d 510; Grant v Alldredge, 498 F2d 376.) V. Testimony regarding defendant’s admissions to Military Guard Christopher Corwin, Army Nurses Bernard Burgess and Dorothy Anderson and Army Chaplain Michael Freeman was properly received at trial. (People v Krom, 61 NY2d 197; People v Warren, 61 NY2d 886; People v Newman, 32 NY2d 379; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Bernstein v Lore, 59 AD2d 650; People v Al-Kanani, 33 NY2d 260; Matter of Vanderbilt [Rosner — Hickey], 57 NY2d 66; Matter of Priest v Hennessy, 51 NY2d 62; Matter of Camperlengo v Blum, 56 NY2d 251; People v Smith, 59 NY2d 156.) VI. Defendant’s April 26,1981 admissions to Captain Aldrich Johnson did not result from any custodial interrogation but were spontaneous as a matter of law and, as such, were properly received into evidence. (Miranda v Arizona, 384 US 436; People v Krom, 61 NY2d 187; People v Harrison, 57 NY2d 470; People v Maerling, 46 NY2d 289; People v Williamson, 51 NY2d 801; People v Kaye, 25 NY2d 139; Rhode Island v Innis, 446 US 291; People v Rivers, 56 NY2d 476; People v Tanner, 30 NY2d 102; People v Chappie, 38 NY2d 112.) VII. The court’s verdict finding defendant guilty of the three murders charged was supported by legally sufficient evidence. (People v Allweiss, 48 NY2d 40; People v Molineux, 168 NY 264; People v Ventimiglia, 52 NY2d 350; People v Condon, 26 NY2d 139; People v Brown, 24 NY2d 168.) VIII. The court below did not abuse its discretion in denying defendant’s motion for severance. (People v Lane, 56 NY2d 1; People v Brown, 24 NY2d 168.)
[OPINION BY Meyer, J. type=majority]
OPINION OF THE COURT
Meyer, J.
A defendant found to lack capacity to participate in his own defense and committed for care and treatment, who is thereafter determined by the superintendent of the institution to which committed to be no longer incapacitated, has the right to present expert testimony during the hearing held pursuant to CPL 730.30 (2) following the superintendent’s report. Nothing in CPL 730.30 (2) or 730.60 (2) authorizes the hearing court to refuse to hear expert testimony other than that of the psychiatrist in charge of defendant during his confinement, nor is it material that defendant himself opposes the demand of his attorneys for such a hearing. The order of the Appellate Division should, therefore, be reversed and the matter remitted to Supreme Court, Erie County, for a new hearing to ascertain defendant’s capacity to assist in his own defense and, if he is found to have such capacity, for a new trial on all three counts of murder in the second degree of which he was convicted.
I
Defendant was convicted after a bench trial of murdering three black males in the 26-hour period between 10:00 p.m. on September 22,1980 and midnight on September 23,1980 on the east side of Buffalo. His conviction has been affirmed by the Appellate Division in a thorough and thoughtful opinion (101 AD2d 504), to which reference is made as to the facts of the killings, the pretrial proceedings and the claimed trial errors. We agree with the conclusions reached in that opinion other than (1) its holding that the hearing judge did not err in refusing to allow introduction by the defense of expert testimony at the second (March 16, 1982) hearing concerning defendant’s capacity to assist in his own defense, and (2) its reasoning as to the sufficiency of the evidence concerning the second (Green) and third (Thomas) murders.
II
Much of the problem with respect to defendant’s right to introduce psychiatric testimony at the second hearing stems from the fact that defendant himself opposed his attorneys’ efforts to have a hearing at all, it being his view that there was no question about his capacity to participate in his defense. Whatever may be the right of a criminal defendant represented by counsel to make the ultimate determination of trial strategy (cf. Dearinger v United States, 344 F2d 309 [defendant entitled to insist, against counsel’s advice, that particular witnesses be called]), it does not include the right to waive a hearing concerning capacity which counsel has requested. This necessarily follows from the self-contradiction involved in recognizing that a defendant whose capacity is in issue has the capacity to waive a hearing concerning his capacity (Pate v Robinson, 383 US 375, 384).
Here, the hearing judge, after the first hearing during which the reporting psychiatrists disagreed concerning defendant’s ability to participate in his defense, found him incapacitated and on December 16, 1981, committed him to the Mid-Hudson Psychiatric Center for treatment and care. On February 23, 1982, the superintendent of that institution certified that defendant was no longer incapacitated. Defendant’s attorneys then moved for a hearing, and a prehearing conference made clear that what they sought was not an order of examination pursuant to CPL 730.30 (1) but the appointment of psychiatrists to assist in the defense, to testify at the hearing and to help prepare the cross-examination. The hearing judge denied the application, stating that what counsel sought was the same hearing previously held and that he would hear only the psychiatrists whose opinions underlay the superintendent’s report.
Counsel demurred to the latter suggestion and stated that formal application would follow. That application, made on the affidavit of one of defendant’s attorneys which called attention to testimony at the first hearing concerning defendant’s inflexibility in his inability to cooperate with counsel, recited that in discussion since defendant’s return to Buffalo the same intransigence continued, asked in view of defendant’s indigency for authority to obtain the services of psychiatrists as experts for the assistance of the defense and emphasized the due process and other constitutional violations that would otherwise result. It was accompanied by a proposed form of order which made specific reference to County Law § 722-c, which provides for the furnishing of services of others than attorneys for indigent defendants. At the argument of that motion the defendant objected to a hearing, as did the prosecutor. The judge resolved the dilemma by ordering the hearing on his own motion, but reserved decision on the request of defendant’s attorneys for appointment of psychiatrists until conclusion of the testimony of the Mid-Hudson psychiatrist who has been in charge of defendant after he was committed there for care and treatment.
After conclusion of that testimony, the motion for appointment of psychiatrists was denied, the judge stating again that he construed the application as one for further examination under CPL 730.30 (1). Defense counsel then offered to pay the psychiatrists from their own funds, but the judge ruled that to be no more than a backdoor approach to a third round of psychiatric tests. That interpretation and ruling were reiterated on the next hearing date. The judge’s ultimate decision, that the defendant was not an incapacitated person and that the criminal trial should proceed, was, therefore, made without hearing any psychiatric evidence from the defense.
The Appellate Division held that there nevertheless was no denial of due process because the hearing having been held on the court’s own motion, limitation of expert testimony produced at the hearing was reasonable; because CPL 730.60 (2) does not mandate a full adversary hearing; because it interpreted the last sentence of CPL 730.30 (2) to provide for a limited initial hearing followed by a further hearing at which other psychiatrists would be allowed to testify; because defense counsel had the opportunity to cross-examine the Mid-Hudson doctor; and because the court in reaching its second hearing decision considered the testimony of the three psychiatrists who testified on behalf of defendant at the first hearing.
That reasoning, and the reasons given by the hearing judge for denying defense counsel’s request, misconstrue the governing statutes. CPL 730.60 (2) provides that when the superintendent of the institution in which defendant is confined determines that defendant is no longer an incapacitated person he must so notify the court and the District Attorney in writing, and that: “The court must thereupon proceed in accordance with the provisions of subdivision two of section 730.30 of this chapter; provided, however, if the court is satisfied that the defendant remains an incapacitated person, and upon consent of all parties, the court may order the return of the defendant to the institution in which he had been confined for such period of time as was authorized by the prior order of commitment or order of retention.” CPL 730.30 (2), which deals with an order of examination as to capacity before an order of commitment issues (see, CPL 730.40, 730.50), provides that: “When the examination reports submitted to the court show that each psychiatric examiner is of the opinion that the defendant is not an incapacitated person, the court may, on its own motion, conduct a hearing to determine the issue of capacity, and it must conduct a hearing upon motion therefor by the defendant or by the district attorney. If no motion for a hearing is made, the criminal action against the defendant must proceed. If, following a hearing, the court is satisfied that the defendant is not an incapacitated person, the criminal action against him must proceed; if the court is not so satisfied, it must issue a further order of examination directing that the defendant be examined by different psychiatric examiners designated by the director.” But, if the Appellate Division’s construction of the concluding clause of that provision is correct, not only a defendant returned for a second hearing after prior commitment for observation, but also a defendant whose capacity is first put in issue, would have no right in the initial hearing held pursuant to the section to present psychiatric testimony on his own behalf. He could do so only after the court, not being satisfied following the initial hearing that defendant is not incapacitated, ordered additional examination by psychiatric examiners designated by the director, which would be an absurd result. It would also be wholly inconsistent with the wording of the statute which provides in its first sentence that the court “must conduct a hearing upon motion therefor by defendant” (emphasis supplied), and with the memorandum of the Senator who sponsored the 1981 amendment which added to CPL 730.60 (2) the sentence quoted above. That memorandum stated flatly that: “This bill ensures that the court, the district attorney and the defendant retain the right to contest the determination of the department.” (1981 NY Legis Ann, at 423, 424 [emphasis supplied]). To say that defendant is ensured the right to a hearing and to contest a psychiatric determination but may not present psychiatric testimony is a contradiction in terms.
Moreover, the statutory requirement was not met by the hearing judge’s review of the testimony of psychiatrists who testified at the initial hearing. That testimony, the judge found, was insufficient to establish defendant’s competence to stand trial but, in any event, the issue on the second hearing was defendant’s capacity at that time, not several months before. Had defendant been permitted to present psychiatric testimony, it may have varied from that of the Mid-Hudson psychiatrist eyen more drastically than had been the difference between them on the first hearing.
It is, furthermore, the People’s.burden to establish defendant’s coippetence to proceed (People v Santos, 43 AD2d 73; see, People v Silver, 33 AD2d 475). If the proof submitted through the Mid-Hudson psychiatrist be deemed sufficient to shift the burden of going forward on that issue to defendant, still as Chief Judge Cardozo (as he then was) observed in Matter of Reilly v Berry (250 NY 456, 461), “a defendant may be at an unfair disadvantage if he is unable * * * to parry by his own witnesses the thrusts of those against him.” Nothing in the statutory reference to a “hearing,” or in its provision for a hearing on the court’s own motion, suggests that defendant was to be disadvantaged at that juncture by being denied the assistance of a psychiatrist. As we have noted in People v Richetti (302 NY 290, 297), “A ‘hearing’ or ‘trial’ of * * * an issue of fact is an empty form unless it takes place * * * with the right, on each side, to examine and cross-examine.”
No more so is there basis in the statute or in the record for the hearing judge’s denomination of the motion made by defendant’s counsel, who clearly and repeatedly argued that they sought only the assistance of expert psychiatrists and ultimately offered to pay the costs involved themselves, as one for a third round of psychiatric examination. Nor is it material that there was an adjournment between hearing and trial during which counsel might have consulted and retained expert assistance at their own expense for by that time the hearing judge had ruled that he would neither appoint psychiatrists at court expense nor hear psychiatrists retained at defendant’s attorneys’ expense.
Nor finally can it avail the People, as they argue, that the evidence before the hearing judge was legally sufficient or that the introduction of expert testimony is generally a matter of the court’s discretion. How many experts will be heard will in most circumstances be a matter of discretion, but, as already noted, th^ refusal to hear any expert witness on behalf of defendant is a violation of the statutory requirement, not a matter of discretion. And the statutory right to oppose the testimony presented against him having been violated, it is simply irrelevant that the unopposed testimony was legally sufficient. The issue is not whether the People presented enough evidence but whether defendant was prevented from contesting as the statute ensured; under the statute defendant’s right to present evidence in opposition is not subject to the unfettered discretion of the hearing judge._
Because the psychiatric assistance that can be provided at a new hearing will relate to defendant’s present condition, rather than his capacity at the time of the second hearing held without such assistance, a new hearing will not provide him with the safeguards he was entitled to at the time of the second hearing (cf. People v Hudson, 19 NY2d 137,140). There must, therefore, be a reversal and a remand for a new hearing as to defendant’s present capacity, followed, if he is found capable to proceed, by a new trial (Dusky v United States, 362 US 402).
Ill
Whether that new trial, if it occurs, will be only as to the Dunn murder or as to the Green and Thomas murders as well turns on the legal sufficiency of the evidence presented as to the latter two. Defendant attacks the legal sufficiency of the evidence as to them on a number of bases. He argues first that the testimony of R.O., who identified defendant as the perpetrator of the Dunn murder, was inconclusive and, therefore, an insufficient predicate as “other crime” evidence on the issue of identity under the Molineux rule (People v Molineux, 168 NY 264), because R.O. did not identify defendant at the lineup, testifying at the trial that initially he did not want to get involved. The argument cannot help defendant, however, for he was identified not only by R.O. but by M.G. as well, who passed within an arm’s length of him just prior to the Dunn murder and positively identified him at the trial.
Defendant contends also that the Trial Judge committed himself, without objection from the prosecution, to render a verdict on each count separately and weigh and assess the evidence as it applied to each count separately and that it was, therefore, impermissible for the Appellate Division to use the Dunn “other crime” evidence to identify defendant as the perpetrator of the other two murders. The Trial Judge’s statement was related to defendant’s counsel’s objection to the prosecutor’s theory that the crimes were connected because all the victims were black, and the impropriety of using guilt of one crime to establish guilt of another. It cannot properly be read, however, as a commitment not to consider evidence properly admissible on the issue of identity under the Molineux rule (see, People v Beam, 57 NY2d 241; People v Allweiss, 48 NY2d 40). Here there is more than the race of the victims to make the evidence probative of identity: the short space of time in which the three murders occurred, the unprovoked nature of each, the facts that they occurred in the same general geographical area, that the same type of weapon was involved in each and that defendant owned such a weapon.
Moreover, the expert testimony, based on the shell casings found at each murder site and at other places frequented by defendant, that the same gun was used in all three killings, considered together with the “other crime” identity evidence and defendant’s admissions that he had killed many people in Buffalo, some using a .22 caliber weapon, constituted sufficient evidence to present a jury issue with respect to the other two murders.
For the foregoing reasons, the order of the Appellate Division should be reversed and the matter remitted to Supreme Court, Erie County, for further proceedings in accordance with this opinion.
[OPINION BY Simons, J. type=dissent]
Simons, J.
(dissenting). The majority find nothing in CPL 730.30 (2) or 730.60 (2) which “authorizes the hearing court to refuse” defendant the right to submit partisan psychiatric testimony to controvert the diagnosis, made by doctors of the State institution in which he had been held for observation, that he was no longer an incapacitated person. They hold, therefore, that the court’s refusal to hear such evidence constituted reversibly error. I can find nothing in the statute or which can be implied from it which grants defendant an absolute right to submit such evidence and, therefore, I assume that the Legislature intended to commit the matter to the discretion of the hearing court. Inasmuch as the record establishes convincingly that the court properly exercised its discretion, I dissent and would affirm the judgment.
Defendant was charged with three counts of second degree murder arising out of the much publicized and apparently racially motivated killing of three black men in the City of Buffalo in September 1980. He was arraigned on May 11, 1981 and at that time the court ordered a psychiatric examination pursuant to CPL art 730. Two psychiatrists, Drs. Molnar and Wadsworth, examined him and found him fit to proceed. The case was reached for trial the following fall. On October 20,1981, the day before jury selection was to start, counsel announced that defendant had decided not to invoke an insanity defense. He advised the court that he and defendant’s court-appointed psychiatrist had fully explained the options to defendant and that in counsel’s opinion defendant was competent to make that decision. Jury selection commenced the next day. During voir dire defendant, against the wishes of his attorney, moved to waive a jury and proceed by bench trial. Counsel then changed his position on his client’s competency and contended that he was not fit to proceed, apparently believing that defendant was competent to proceed before a jury but not competent to proceed before a judge without a jury. Counsel’s ambivalence became even more apparent, the court noted, when he subsequently agreed to withdraw his claim of incompetency if the court would deny defendant’s motion to waive a jury. At this point the court ordered a further psychiatric examination solely to determine if defendant was competent to waive a jury. After reexamination, Dr. Molnar continued to believe defendant was fit to proceed but Dr. Wads-worth changed his earlier diagnosis and held that he was not. The court then ordered a full psychiatric reexamination pursuant to CPL 730.30 (1). Three additional doctors were appointed and examined defendant. They too disagreed on his fitness to proceed. On this state of the record, finding the evidence “exceedingly close”, the court ruled that the People had not met their burden of proving competence by a preponderance of the evidence and ordered defendant committed to Mid-Hudson Psychiatric Center for observation (see, CPL 730.40 [1]).
defendant was returned to court two months later, certified by the superintendent of Mid-Hudson as competent to stand trial. After speaking with defendant, however, his counsel advised the court that defendant was no different than he had been earlier and he requested further psychiatric examinations and a hearing. Defendant adamantly opposed his counsel’s request and urged immediate trial. The court settled the dispute by ordering a hearing on the report certifying defendant. One of the three psychiatrists who had treated defendant at Mid-Hudson, Dr. Chellappa, was called to testify. It is this hearing and the court’s rulings during it which present the issue which divides the court on this appeal.
Before and during the hearing, defense counsel requested that the four psychiatrists who had previously testified that defendant was not fit to proceed reexamine defendant and testify in opposition to Dr. Chellappa. Counsel offered no reason why reexamination was required except for conclusory assertions that defendant failed to cooperate with him and the speculation that further examinations might develop evidence of incapacity. The court reserved decision on the request while it heard the testimony of Dr. Chellappa but it did not foreclose defendant or his counsel from cross-examining the doctor nor did it foreclose them from offering additional evidence. At the conclusion of the hearing, the court decided that it had sufficient evidence before it to determine the matter and that no further psychiatric evidence was necessary. It therefore denied counsel’s motion and ruled that defendant was fit to proceed to trial.
Specifically, the court had before it the expert opinions of 11 different doctors who had made psychiatric evaluations of defendant (Drs. Molnar and Wadsworth had evaluated him twice). All of them believed defendant was competent to understand the proceedings; they disagreed on whether he was able to assist in his defense. Those who believed he could not based their opinions in part upon a diagnosis that he was suffering from a mental disease, paranoia, and the fact that he failed to cooperate witjh his lawyers or with the examiners. That conduct was not necessarily irrational, however; defendant insisted that he was competent to proceed and he insisted, contrary to his lawyer’s adyice and for reasons he expressed with considerable logic, that he stood a better chance of acquittal before a judge than before a jury. Indeed, believing he was competent, defendant even had instituted a pro se habeas corpus proceeding seeking release from Mid-Hudson Psychiatric Center and return for trial and he had presented psychiatric evidence in that proceeding which supported his claim. Also to the point, the court noted that when defendant had appeared before it in several proceedings during the preceding year he was always alert and fully oriented and that he had participated in the proceedings, appeared to understand them and had suggested questions to his lawyers concerning matters they could not otherwise know of.* Insofar as defendant may have been disadvantaged at the second hearing by any claimed lack of psychiatric assistance, the court noted that it had previously appointed a psychiatrist to aid defendant at State expense, that the psychiatrist had appeared with defendant and his lawyer during earlier examinations, had advised them at the hearing thereafter and that he was still available to assist him. Although counsel contends otherwise, there is nothing before us to indicate that that psychiatrist was unavailable or that his assistance was inadequate and the majority do not rest their reversal on defendant’s lack of psychiatric assistance in,conducting the hearing or cross-examining Dr. Chellappa. Indeed, counsel has not identified a single instance during the hearing or the trial in which arguably defendant was hampered or prejudiced by the court’s decision to proceed.
The narrow issue dividing the court on this appeal is whether the court erred in denying defendant’s application to retain psychiatrists, either at State expense or at his own expense, to examine him and testify in opposition to the doctor from Mid-Hudson Psychiatric Center after defendant was returned from that institution. The majority find that he had a statutory right to submit such evidence.* *
CPL 730.30 sets forth a comprehensive scheme for determining whether a defendant is an incapacitated person within the definition of the statute (CPL 730.10 [1]). Subdivision 1 provides for an order of examination when the court determines that defendant may be an incapacitated person, subdivisions 2,3 and 4 provide for various procedures after examinations have been completed depending upon the results of those examinations and the court’s view on the issue of incapacity. In this case, the court had determined that examinations were required and ordered them pursuant to subdivision 1 and it had already held hearings at which the examiners testified and the court evaluated their findings. The propriety of those hearings is not before us. The hearing in question is the hearing held after defendant had been returned to court from Mid-Hudson Psychiatric Center, certified as fit to stand trial by the superintendent.
CPL 730.60 (2) provides that when a defendant has been returned to court after a period of observation, certified as fit to proceed, his procedural rights shall be governed by CPL 730.30 (2). That section provides: “2. When the examination reports submitted to the court show that each psychiatric examiner is of the opinion that the defendant is not an incapacitated person, the court may, on its own motion, conduct a hearing to determine the issue of capacity, and it must conduct a hearing upon motion therefor by the defendant or by the district attorney. If no motion for a hearing is made, the criminal action against the defendant must proceed. If, following a hearing, the court is satisfied that the defendant is not an incapacitated person, the criminal action against him must proceed; if the court is not so satisfied, it must issue a further order of examination directing that the defendant be examined by different psychiatric examiners designated by the director.” The relevant provision is the first sentence which authorized the court to hold the hearing. It gives no guidance on the nature of the hearing but manifestly it was designed to aid the court in evaluating the report of the institution’s doctor. If the court is not satisfied with the doctor’s report and testimony after the hearing, the statute authorizes it to order another round of examinations, but nothing in the subdivisions grant defendant the right to submit additional psychiatric evidence in opposition to the doctor’s diagnosis. The court was satisfied with the evidence after this hearing and there was no need for it to hear additional psychiatric evidence or to order a fourth round of examinations. Accordingly, it ordered the criminal action to proceed. In holding it was bound to hear additional psychiatric evidence, the majority rely upon the last sentence of subdivision 2 but that refers to proceedings “following a hearing.” But that language does not govern the procedure during the hearing after defendant’s return or grant him the right to submit additional psychiatric evidence at it. The purpose of the hearing was to test the certification. It was only a part of the proceedings conducted pursuant to CPL 730.30, and the court’s decision after it was concluded was based not only on the evidence presented at that hearing but also upon all the evidence in the record of the criminal action, the prior article 730 proceedings and the report of defendant’s doctor in the habeas corpus proceeding.
Any doubt about this interpretation was removed by the reasons which prompted the 1981 amendment to section 730.60 (2). Originally the section provided that when a defendant had been found incapacitated and confined to a State institution and the superintendent of the institution thereafter certified that he was no longer incapacitated, the defendant was to be returned to court and “the criminal action against him must proceed.” Some lawyers and judges apparently found this language ambiguous and construed it to mean that the court had no authority to reject the superintendent’s certification. Accordingly, the statute was amended by deleting the quoted section and providing that when a defendant was returned from the hospital and certified as fit to proceed, the court “must thereupon proceed in accordance with the provisions of subdivision two of section 730.30” (L 1981, ch 791). The sponsor’s memorandum explained: “Criminal Procedure Law: § 730.60. The purpose of this bill is to ensure that a Superintendent of a Mental Hygiene Facility may not overrule a court’s determination on the issue of capacity. There currently is an ambiguity on the question of whether a court is bound to accept the determination of the department on the crucial question of a defendant’s mental fitness to proceed in a criminal case. People v. Rodriques [sic], Supreme Court, New York County (1980), highlights this ambiguity. Although a defendant is currently entitled to a capacity hearing after an initial psychiatric examination current language in § 730.60(2) does not explicitly state that he is so entitled after a temporary order of observation or an order to commitment or retention. This bill ensures that the court, the district attorney and the defendant retain the right to contest the determination of the department. Passage of this bill will prevent the mental hygiene department from making a determination of a defendant’s capacity without the court system’s assent. Since the Court has made an initial determination on a defendant’s capacity, it should have the opportunity to conduct a new hearing before accepting the department’s findings” (1981 NY Legis Ann, at 423-424).
Thus the purpose of the amendment was not to grant a defendant a wide ranging adversarial hearing at which he could introduce partisan opinion evidence in opposition to the superintendent’s report. Indeed, that interpretation is contrary to the statute’s requirement that neutral psychiatric examiners be used (see, CPL 730.10 [2], [5], [7]). It was intended to clarify the statutory authority permitting the court to require the superintendent or the institution’s doctors to testify in support of the superintendent’s diagnoses, to reevaluate its ruling on the basis of that evidence and to order a further examination thereafter if it determined that one was required. In short, the amendment sought to insure that the court, not the superintendent of the hospital to which defendant was confined, would determine whether defendant was an incapacitated person (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, CPL 730.60, p 304).
This interpretation is confirmed further by a report made by a committee of the Association of the Bar of New York City (see, Mental Illness, Due Process and the Criminal Defendant, Second Report and Additional Recommendations of the Assn of Bar of New York City [1968]). The bill jacket for the original statute indicates that much of article 730 was patterned after recommendations in the report (see, Legis Bill Jacket, L 1970, ch 996). The report notes the concern of the committee that the court should feel free to reject the superintendent’s report and conduct further examinations if it felt them warranted (id., at 85). The 1981 amendment became necessary after the meaning of the statute had been questioned in a specific case in which the prosecutor had contended that CPL 730.60 (2) did not permit the defendant to challenge the superintendent’s certification (see, People v Rodriguez, 79 AD2d 576, dissent of Murphy, P. J., at p 578; see also, Legis Bill Jacket, L 1981, ch 791, Memorandum of Arnold D. Hechtman to John G. McGoldrick dated June 29, 1981). Nothing in the amendment or its history, however, suggests that the Legislature intended by it to expand defendant’s rights under the original statute.
It is also worth noting that this analysis of the statute is consistent with the historical development of capacity hearings. At common law, an incompetent accused could not be brought to trial (Youtsey v United States, 97 F 937,940-946; see also, Bishop v United States, 350 US 961). The law distinguished between defendants who lacked the mens rea to commit the crime because they were insane at the time of the offense and those lacking the capacity to defend because incapacitated at the time of trial. The rule, then as now, held that although a defendant may well have been insane at the .time of the crime and also at the time of trial, he could be prosecuted if he understood the nature of the proceedings and was able to assist in his own defense. If he was incapacitated at the time of trial, the proceedings could not continue (see, Freeman v People, 4 Denio 9, 27).
The court possessed broad discretion to determine whether to inquire into defendants’ capacity (see, People v Smith, 3 NY2d 184, 186; People v Nickerson, 1 NY2d 815) and whether to impanel a jury or to decide the issue itself (Weihofen, Mental Disorder as a Criminal Defense, at 429, 445-447). If it was satisfied from its own observations that there was no basis to question defendant’s capacity, he was not entitled to a hearing (People v McElvaine, 125 NY 596; see also, People v Esposito, 287 NY 389). On appeal, the Trial Judge’s competency ruling was sustained unless found to be clearly arbitrary (see, Freeman v People, supra; Comment, The Effect of the New York Criminal Procedure Law upon the Treatment of the Mentally Incompetent Defendant, 20 Buffalo L Rev 646, 647). The former Code of Criminal Procedure similarly granted the trial court broad discretion in determining capacity (Code Crim Pro §§ 658, 662-a, 662-c).
Our present practice is derived from these rules. Subject to specific statutory limitations, the court retains broad discretion to decide capacity issues based upon its own observations and, if examination is required, upon its evaluation of evidence of neutral psychiatric examiners (see, People v Rodriguez, 79 AD2d 576, affd 56 NY2d 557, supra; CPL 730.10 [5], [7]; cf. former Code Crim Pro § 659; 18 USC § 4244). The defendant’s incapacity must be the result of mental disease or defect (CPL 730.10 [1]) but the determination of his capacity is a judicial determination, not a medical one (see, Comment, Incompetency to Stand Trial, 81 Harv L Rev 454, 470; Comment, 20 Buffalo L Rev 646, 651-652; Cooper, Fitness to Proceed, A Brief Look at Some Aspects of the Medico-Legal Problem Under the New York Criminal Procedure Law, 52 Neb L Rev 44, 53, 67; Pizzi, Competency to Stand Trial in Federal Courts: Conceptual and Constitutional Problems, 45 U of Chi L Rev 21, 54-55). Thus, the statute restricts the reports of the examiners to information necessary for the court’s decision (see, CPL 730.10 [8]; see also, Mental Illness, Due Process and the Criminal Defendant, Second Report and Additional Recommendations of Assn of Bar of New York City, at 85 [1968]) and, significantly, under the various alternatives provided in CPL 730.30 the opinions of the psychiatrists are not binding on the court.
The dispositive issue always is defendant’s ability to function at the trial and although psychiatric evidence is required once the defendant’s capacity is questioned, resolution of the question is not necessarily aided by multiple examinations or additional psychiatric testimony because the psychiatrists’ orientation is therapy; they have little familiarity with criminal prosecutions. The court is familiar with the procedures and dynamics of a criminal prosecution, however, and it can best assess the defendant’s mental capacity against the specific demands the trial may make upon him. In the final analysis, it must decide whether defendant can understand the proceedings and, with a “modicum of intelligence”, assist counsel (People v Francabandera, 33 NY2d 429, 435-436).
In sum, absent an explicit controlling statutory direction, the determination to order further examinations or to receive additional psychiatric evidence is one that rests now, as it always has, in the sound discretion of the hearing court. Its decision on the matter, absent clear error should be upheld. Under similar circumstances, this court (see, People v Rodriguez, 79 AD2d 576, affd 56 NY2d 557, supra; see also, People v Esposito, 287 NY 389, supra) and several Federal courts, interpreting a similar statute (18 USC § 4244), have held that a defendant does not have a right to seek repeated mental examinations and that the denial of his request for such examinations or to offer expert psychiatric testimony on his mental condition at a hearing, unsupported by legitimate reasons for doing so, does not constitute an abuse of discretion (Ruud v United States, 347 F2d 321, cert denied 382 US 1014; United States v Cook, 418 F2d 321; United States v Maret, 433 F2d 1064; cert denied 402 US 989; United States v Valtierra, 467 F2d 125; see, Pizzi, Competency to Stand Trial in Federal Courts: Conceptual and Constitutional Problems, 45 U of Chi L Rev 21, 54-57). That discretionary power controls the result in this case and requires an affirmance of defendant’s conviction.
Chief Judge Wachtler and Judges Kaye and Alexander concur with Judge Meyer; Judge Simons dissents and votes to affirm in a separate opinion in which Judge Jasen concurs; Judge Titone taking no part.
Order reversed, etc.
Pate held the defense of incompetence to stand trial not waived by defendant, noting that “it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial” (383 US, at p 384) and that “[w]hile Robinson’s demeanor at trial might be relevant to the ultimate decision * * * it cannot be relied upon to dispense with a hearing” (383 US, at p 386).
What the dissent characterizes as “conclusory assertions that defendant failed to cooperate” (dissenting opn, at p 428) is contained in paragraph 8 of the affidavit, which reads: “I have spent in excess of four hours with Mr. Christopher since his return to Buffalo. During that time I have concluded that he is still unable to assist effectively in his defense because of his refusal to discuss important areas of his case, such as trial strategy, the raising of defenses, such as, for example, lack of criminal responsibility, and possible approaches to the anticipated proof at trial. In one conversation with him, regarding two important areas of evidence expected from the prosecution, and conflicting strategies for responding to same evidence, the defendant merely states ‘I’ll take care of that'f or ‘leave that up to me.’ When pressed on the need to cooperate with defense counsel, Mr. Christopher states ‘I’m going to make my own decisions’ ’’ (Emphasis supplied.)
Because our reversal stems from those statutes, we do not reach or decide the constitutional issues argued by defendant.
The dissent’s reference to the last sentence of subdivision 2 (dissenting opn, at p 432) ignores the wording of the first sentence of that subdivision. Its contrary construction of the subdivision (dissenting opn, at p 432) also ignores the above-quoted underscored language of the legislative memorandum. Even if the one-sided proceedings which the dissent would accept as sufficient be deemed a “hearing” (but see, People v Richetti, 302 NY 290, 297), it does not afford defendant “the right to contest the determination of the department” which the legislative history shows to have been intended. Moreover, that CPL 730.10 (8) specifies what the examiner’s report shall contain (dissenting opn, at p 434) proves nothing contrary to defendant’s right to contest that report at a hearing.
Though defendant’s original application was for funds to pay the four psychiatrists who testified at the first hearing, our holding is that the Trial Judge erred in refusing to hear any psychiatric evidence on defendant’s behalf, not that defendant had a statutory right to present the evidence of four psychiatrists at the second hearing.
Specifically, defense counsel were free to cross-examine the institution doctors and to submit evidence on behalf of defendant that he was not able to assist in his defense. The application to offer additional psychiatric evidence initially sought reexamination by the four psychiatrists who had previously testified defendant was incapacitated, then apparently sought a further statutory examination, at least the court understood it as such, and finally was submitted as an application to present additional psychiatric testimony to rebut the superintendent’s certification. The court reserved judgment on the application to submit additional psychiatric evidence until the conclusion of the hearing. It then denied the motion, holding that such evidence would be “cumulative and unnecessary.”
Parenthetically, I would add that I do not agree with the majority that the court may ignore defendant’s wish for a prompt trial when his counsel urges a finding of incapacity. For every reason counsel can advance for delay, the defendant can advance an equally cogent reason for a prompt trial to exonerate himself before the evidence grows stale or disappears and before he is consigned to a period of incarceration and treatment in a hospital for the criminally insane (see, Comment, Incompetency to Stand Trial, 81 Harv L Rev 454, 455-456; Cooper, Fitness to Proceed: A Brief Look at Some Aspects of the Medico-Legal Problem Under the New York Criminal Procedure Law, 52 Neb L Rev 44,64). As has been aptly stated, “[t]he gravest injustice is inflicted upon a person by criminal law commitment upon a finding of unfitness to proceed when it later turns out that he had not committed any criminal act” (see, Bacon, Incompetency to Stand Trial: Commitment to an Inclusive Test, 42 S Cal L Rev 444, 448). In the absence of agreement on the necessity of a hearing between defendant and his counsel, the court wisely ordered one to review the doctors’ certification of competency. But defendant’s wishes and his well-stated and rational reasons for proceeding contrary to his counsel’s advice were entitled to the consideration the hearing court gave them when it decided the issue after the hearing. Pate v Robinson (383 US 375, 384) does not hold otherwise.
Defendant mentions this statutory right only briefly in his submissions and without specification of the basis for it. His principal contentions concerning the hearing are that reversal is required (1) because Dr. Chellappa was unqualified and his testimony unworthy of belief and (2) because he was denied due process. The first issue is beyond our power of review. Because the majority have decided the appeal on statutory grounds, it is not necessary to address the constitutional issue. We have previously held, however, that the procedures set forth in title 12 of the former Code of Criminal Procedure, generally similar to the procedure contained in article 730, satisfied due process requirements (see, People v Hudson, 19 NY2d 137, cert denied 398 US 944; see generally, Validity and Construction of Statutes Providing for Psychiatric Examination of Accused to Determine Mental Condition, Ann., 32 ALR2d 434).
The People of the State of New York, Respondent, v Joseph Christopher, Appellant.
Judgment unanimously affirmed. Memorandum: On this appeal from three convictions of manslaughter in the first degree, defendant contends, and the Special Prosecutor concedes, that the Trial Assistant engaged in inappropriate and improper conduct during his cross-examination of a defense psychiatrist, his direct examination of the People’s psychiatrist, and on summation. The Trial Assistant, whose misconduct has resulted in at least one reversal of a murder conviction by this Court (see, People v Ivey, 83 AD2d 788), consistently referred to matters not in evidence, made himself an unsworn witness, flouted rulings by the trial court on evidentiary matters, and made flippant remarks which detracted from the seriousness of the proceedings. However, upon our review of the record, we conclude that the Trial Judge was "a saving grace” (People v Galloway, 54 NY2d 396, 399). He sustained defense objections, gave curative instructions to the jury, and on several occasions sharply rebuked the Prosecutor (see, People v Galloway, supra; cf., People v Mott, 94 AD2d 415). Although we cannot condone the Trial Assistant’s behavior, we find that the Judge’s firm control over the trial obviated any prejudice to defendant that might have resulted from the Prosecutor’s misconduct.
The trial court erred by allowing the People’s psychiatrist to testify that defendant might be feigning insanity because he could be released from an institution in only a few months if he were acquitted by reason of mental disease or defect, because the Prosecutor failed to establish that defendant had knowledge of the possibility of his release. However, in light of the court’s extensive instructions to the jury that they were not to consider possible punishment when reaching a verdict, we find the error to have been harmless.
We decline to exercise our discretion to hold this appeal in abeyance pending a further hearing to establish defendant’s competence to take part in his appeal (see, People v Laudati, 35 NY2d 696, 697-698). We further decline to modify defendant’s sentence in the interest of justice. (Appeal from Judgment of Erie County Court, McCarthy, J.—Manslaughter, 1st Degree.) Present—Callahan, J. P., Doerr, Lawton and Davis, JJ.