By Joseph Ax
NEW YORK, Nov 27 (Reuters) - A defendant facing a hearing on
his competency to stand trial cannot challenge a prosecutor's
subpoena for his psychiatric records, a state appeals court
ruled on Tuesday.
The Appellate Division, First Department, held that
Christoper B., a man facing arson and weapons-related charges,
could not appeal a 2011 decision from Acting Manhattan Supreme
Court Justice Larry Stephen denying his motion to quash the
subpoena from the Manhattan district attorney's office.
The First Department, however, went on to say that Stephen's
decision was correct on the merits, though it did not reach that
issue as a matter of law.
"Were the order appealable, we would find that Supreme Court
correctly determined that the District Attorney had standing to
participate in the retention proceeding and was entitled to the
subpoenaed psychiatric records in the interests of justice,"
wrote Justice Richard Andrias for a unanimous five-judge panel.
While the court's opinion on whether a district attorney has
standing in such proceedings is dicta, it may serve as a guide
for future cases. The First Department noted in its ruling that
several lower courts have come to opposite conclusions when
faced with the question.
Christopher B., whose last name was not in the ruling, was
charged in February 2009 with setting fire to four cars and to a
bookcase in the lobby of a building, as well as various weapons
crimes. He was initially declared unfit to stand trial and
committed to Kirby Forensic Psychiatric Center.
In 2011, two members of Kirby's forensic committee found he
was fit to stand trial, with one implying that he had faked
delusions in the past. A third member, however, found him
incapacitated. Christopher B.'s treating psychiatrist found him
Kirby's clinical director disagreed with the finding that
Christopher B. was fit and filed an application in court to keep
him at the hospital, prompting the district attorney's office to
file a subpoena for his psychiatric records.
"In cases such as this, where the hospital and the
Commissioner agree to retention notwithstanding medical opinions
to the contrary and indications in the medical records that the
defendant may be malingering, the input of the District Attorney
is needed to present competing evidence on the issue of a
defendant's fitness so that the court may informatively weigh
the defendant's welfare against the safety of the public,"
Diane Temkin of the Mental Hygiene Legal Service, which
represents Christopher B., said the statute that governs
retention hearings does not mention the district attorney's
"The criminal action is suspended until he's found fit," she
said. "It's always been our position that the district attorney
doesn't play a role until the person is found fit and the
criminal action resumes."
She also argued that Stephen's order should be appealable
because it is related to the retention hearing, which is civil,
not criminal, in nature.
She said Christopher B.'s lawyers were still considering
their next steps.
The Manhattan district attorney's office declined to
Justices James Catterson, Dianne Renwick, Nelson Roman and
David Saxe were also on the panel.
The case is People v. Christopher B., Appellate Division,
First Department, No. 7503-1492.
For the people: Susan Gliner and Richard Nahas of the
Manhattan district attorney's office.
For Christopher B.: Diane Goldstein Temkin and Karen Gomes
Andreasian of the Mental Hygiene Legal Service.
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