Opinion
542/2009.
Decided March 29, 2011.
Meredith A. Lusthaus, Esq., Coffinas Lusthaus, P.C., Brooklyn, NY, Attorney for Plaintiff.
Gerard A. Imperato, Esq., Brooklyn, NY, Attorney for Defendant.
The defendant, D. K. P., is charged under indictment number 542/2009 with Attempted Robbery in the First Degree, and related offenses. He is charged and under indictment number 543/2009 with Criminal Possession of a Weapon in the Second Degree, and related offenses. On June 15, 2010, the defendant was found not fit to proceed to trial pursuant to Article 730 of the Criminal Procedure Law. On June 18, 2010, the defendant was admitted to Mid-Hudson Forensic Psychiatric Center "for psychiatric treatment to restore his competence to stand trial" ( see, Mid-Hudson Forensic Psychiatric Center report, dated September 21, 2010, page 1). On September 21, 2010, the forensic professionals and staff at Mid-Hudson concluded that the defendant had a "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and . . . a rational as well as factual understanding of the proceedings against him" ( see, id).
The People accepted the conclusion of Mid-Hudson that the defendant was fit to proceed to trial; the defense did not, and moved for the CPL Article 730 hearing held herein. Accordingly, pursuant to Criminal Procedure Law Article 730, a hearing was held before this Court on December 17, 2010, January 10, 2011, with oral argument conducted on February 8, 2011, so that a determination could be made as to the defendant's competency to stand trial. At the hearing, the People called Dr. Harlan Kosson. The defense called Dr. Elizabeth Owen. The Court finds these witnesses to be credible. The defendant testified on his own behalf. The Court will now summarize the relevant testimony elicited at the hearing.
When called by the People, on direct examination, Dr. Kosson testified that he is currently employed at Rochester Psychiatric Center, and that prior to this employment, he worked at Mid-Hudson Forensic Psychiatric Center, for approximately ten years, as a psychiatrist. While a psychiatrist at Mid-Hudson, Dr. Kosson testified that he treated the defendant during two different time periods, from February 11, 2010 through April 16, 2010, and again from June 18, 2010 through November 10, 2010. Dr. Kosson indicated that he was treating the defendant for a psychiatric illness, specifically schizoaffective disorder. The doctor explained that schizoaffective disorder is a condition where an individual suffers from schizophrenia and a mood disorder. The defendant's treatment for this disorder, administered by the doctor and his treatment team, which included nurses, social workers, psychologists, therapy aides, and recreational therapists, consisted of a combination of medication and counseling.
The People proffered Dr. Kosson as an expert witness in the field of Forensic Psychiatry. The defense stipulated that the doctor is indeed an expert, and the Court permitted him to offer opinion testimony in this field.
The defendant's entire medical record, as well as many reports written on his behalf, were deemed admitted into evidence for each side to use in questioning the witnesses and in making argument to the Court. The parties agreed to retain their own copies of any such evidence, and produce it for the Court upon request. However, some of the reports discussed throughout this hearing are contained in the court file.
Dr. Kosson testified that while he was treating the defendant during the second time period, from June 2010 until November 2010, he concluded that the defendant is a malingerer. The doctor explained that while he believed the defendant was suffering from a psychiatric illness, he also believed that he was exaggerating his symptoms for the purpose of trying to avoid his legal charges. Dr. Kosson stated that he was led to this conclusion by what the defendant said, did not say, and how he said it. For example, the doctor continued, the defendant would say unusual things, such as the charges against him should be dismissed because there are yellow tassels on the flag, or because of Title 12 or the Uniform Commercial Code, but when the doctor inquired about these statements in more detail, the defendant stumbled, quickly shut up [sic], and refused to talk about them further. The doctor indicated that he formed the opinion that the defendant was fit to proceed to trial at least several weeks before the defendant was discharged from the hospital, and prior to the doctor completing the Model Competency Report, dated September 21, 2010. Dr. Kosson indicated that he stands by the contents of this report.
A Model Competency Report, also known as a Model Report in Support of Competency Restoration, is a report sent to the court stating that the defendant is fit to proceed. The Model Competency Report dated September 21, 2010 was deemed admitted into evidence as People's Exhibit 2. An earlier Model Competency Report, dated March 12, 2010, reflecting Dr. Kosson's first treatment period of the defendant, was deemed admitted into evidence as People's exhibit 1.
Dr. Kosson testified that the defendant is oriented to time and place. Dr. Kosson continued that the defendant was able to talk about events surrounding the time of his arrest, and the defendant was able to recall interactions that the had with the doctor and other people on his treatment team.
Dr. Kosson stated that he generally meets with his patients at least once a week, although there may have been weeks that he did not sit down and talk with the defendant in depth. The doctor continued that the length of time that each weekly session lasted would fluctuate. Dr. Kosson indicated that there were times that he sat with the defendant and basically shot the breeze with him [sic]. The doctor continued that when he attempted to discuss in depth with the defendant the charges and the defendant's reasoning and the legal course he wanted to take, the defendant would shut up [sic] and shut down, and then say that he did not want to talk anymore. When asked by the People if he was able to establish a working relationship with the defendant, Dr. Kosson replied that he would classify it as a semi-working relationship. Dr. Kosson stated that although he wouldn't say that there were impairments in his relationship with the defendant, he thought the defendant wanted to play his cards very close to his chest [sic] and not possibly get caught up saying something that might later trip him up.
Dr. Kosson testified that during his treatment of the defendant, he reviewed with him, and the defendant knows, the roles of the players involved in a trial, such as the judge, defense attorney, and prosecutor. The doctor stated that the defendant is capable of listening to and communicating with his attorney, and is capable of proceeding through the court proceedings without sustaining damage to his health. Dr. Kosson explained that in psychiatry there is an issue of whether somebody can't do something or won't do something. In his opinion, Dr. Kosson stated that he believes that the defendant is capable of assisting his attorney and persevering through a trial if he wants to.
At this point in the hearing, the People played for the Court an audio recording, deemed People's 3 in evidence, of a phone conversation on November 21, 2010, between the defendant and another individual, while the defendant was incarcerated on Rikers Island (the defense so stipulated). The other individual was not incarcerated. Dr. Kosson testified that the recording re-affirms his belief that the defendant could work with his lawyer if he chose to, in that the recording sounded to the doctor like the defendant being coached by the other individual as to what to say to try to delay the legal proceedings.
Dr. Kosson testified that he recognizes the voice of the other individual to be that of a former patient.
The Court's copy of the recording is located in the court file.
Dr. Kosson testified that despite the defendant's diagnosis, he is still able to appreciate the nature and substance of courtroom proceedings. The doctor stated that the defendant did acknowledge this to him once, and then shut down and refused to talk about it anymore. Dr. Kosson said that there was a moment when he was talking to the defendant about his case and he stated to the defendant the if he disagreed with how a judge ruled he would have to go to an appeals court, and then the appeals court would decide whether the judge was correct or not, and the defendant stated that he knows that. The doctor testified that the defendant said this on one occasion, and not on any other.
Dr. Kosson testified that he concluded that the defendant is fit to proceed to trial, because he believes that the defendant knows how the court system functions; he knows what his legal charges are; he is verbal; he is able to express himself when he wants to; he knows what is going on; he is not confused; he is oriented; and he knows what the possible consequences are of either going to trial or taking a plea. Dr. Kasson continued that the defendant has this capability to understand despite the fact that he suffers from schizoaffective disorder, because the fact that someone has a mental illness does not render one incapacitated from functioning in most areas of life. Dr. Kasson explained that he does not believe that the symptoms of the defendant's illness would interfere with his ability to work with his attorney at this time.
Upon cross-examination, Dr. Kosson testified that Mid-Hudson has two to four groups per week, lasting 45 minutes, that focus on forensic education. The doctor stated that there is supposed to be documentation on each time a patient attends a group, but in practice, he does not believe that that actually gets carried out. When defense counsel stated that she found records documenting meetings only once a week, Dr. Kosson stated that he was not surprised given Mid-Hudson's record keeping, but he believes that classes were conducted more than once a week.
Dr. Kosson testified that he generally met with the defendant once a week, but there were weeks when he was so busy, he was unable to meet with every patient that week. Dr. Kosson continued that every morning at the hospital all of the patients are reviewed so that the treatment team can be made aware of any incidents involving the patients. Furthermore, the patients are always crossing paths with the staff, and the patients' behaviors reach the doctors' ears.
Dr. Kosson testified that whether a patient is fit or not is not solely determined based upon whether one has created incidents in the hospital, and that some patients create no incidents and are not fit, sometimes for long periods of time. The doctor indicated that the defendant was not a behavior management problem, and was always very polite to the doctor.
Dr. Kosson testified that upon both of the defendant's admissions to Mid-Hudson, there were a few weeks that he appeared unfit to proceed, more so upon his second admission. The doctor continued that whether or not the defendant was really delusional, he appeared internally distressed, and looked emotionally troubled enough that the doctor did not think that the defendant was able to work with his attorney.
Dr. Kosson testified that it was his conclusion that the defendant was malingering, that this was an inference he drew, that the defendant never stated so. In a case of malingering, a patient manufactures symptoms for a secondary gain, as in this case to avoid or delay dealing with a legal situation. Dr. Kosson stated that it is his belief that the defendant is malingering based upon the defendant's making delusional-like statements [sic], statements that are ploys or gambits made to help the defendant to avoid accountability for his alleged crimes, and not statements that the defendant is really attached to and really believes.
Dr. Kosson testified that if the defendant were a successful malingerer, in that the staff did not recognize it, he would remain at Mid-Hudson. Dr. Kosson stated that after several weeks the defendant expressed that he did not want to remain at Mid-Hudson, that he wanted to go back to court to resolve his charges. Dr. Kosson indicated that if the defendant had delusions, his fitness to proceed would depend on whether he would be able to ignore the delusions and work with his attorney. Dr. Kosson testified that it was his opinion that the defendant was not experiencing an inflexibility, or tunnel vision, that some people suffering from schizophrenia experience, because when the doctor spoke with the defendant, the defendant appeared to be able to talk about things in general, and had an average degree of insight into events and things that were happening on the ward. When other patients would act out, the defendant was able to comment on it with appropriate perspective, and he was able to talk about things in his life, also with an appropriate perspective.
Dr. Kosson testified that when the defendant would shut down during discussions about his legal situation, the defendant would basically clam up [sic] and refuse to discuss it any further with him. The doctor continued that this behavior on the part of the defendant occurred for six weeks to two months prior to the defendant's discharge. Dr. Kosson stated that the situations when the defendant would refuse to discuss his legal situation usually occurred when the defendant was trying to explain to the doctor the logic behind some of his purported beliefs concerning his criminal case, such as a belief that his case was pending in a military court instead of a civilian court, but then he got tripped-up [sic], or made a mistake, during his explanation. The doctor believed that the defendant would refrain from further discussions in order to make sure that he did not make another mistake, one which would cause the doctor to conclude that the defendant was malingering, and did not truly believe what he was attempting to explain to the doctor. Dr. Kosson conceded that there is always a possibility that the defendant did not understand the legal concepts the doctor and staff where educating him about. Dr. Kosson continued that the defendant was saying certain things to him, and it was the doctor's job to explore how much of what he was saying the defendant really believed, whether he was able to do more than just say the words, but go beyond the words and really believe them. The defendant was not able to do that, and that is part of the reason the doctor came to the conclusion that the defendant's claims were not truly believed.
Dr. Kosson testified that, in regard to the audio tape, although it reaffirms his opinion that the defendant is a malingerer, in that he interpreted some of the language to mean that the defendant was getting coached on what he should and should not say, concededly, he does not know exactly what the defendant was saying on the entire recording.
Dr. Kosson testified that if the defendant fails to take his medication it could affect his capacity to proceed. The doctor stated that people who are oriented to time and place can still be unfit to proceed. When asked by defense counsel if it is possible that his opinion that the defendant is malingering is incorrect, Dr. Kosson testified that reasonable people can disagree with his conclusion and how he interprets things, so there is always a possibility that one is incorrect. However, Dr. Kosson explained that he believes his interpretation is correct, being based upon a video [sic] of the defendant over several months, with numerous interactions, as opposed to just one snapshot [sic]. The video is a more complete picture, or view or panorama, instead of a single snapshot in time.
Dr. Kosson stated that when he used the term "video", he was using that term figuratively. The Court presumes the same applies for the term "snapshot".
At the conclusion of Dr. Kosson's testimony, the People rested their case. The defense then called Dr. Elizabeth Owen.
The parties stipulated that Dr. Owen is an expert in the field of Forensic Psychology.
Dr. Owen testified that she examined the defendant on December 15, 2010, as she was hired by the defense to determine whether the defendant was competent to proceed to trial. Dr. Owen testified that she also reviewed some of the defendant's records from Mid-Hudson, as well as some of his records from Riker's Island, minutes of the court proceeding conducted on April 20, 2010, and the audio recording. Dr. Owen stated that it was her opinion, with a reasonable degree or psychological certainty, that the defendant is not fit to proceed.
Dr. Owen did not indicate in what year she examined the defendant, but based upon the testimony, the Court presumes it to be 2010.
These minutes, located in the court file, reflect the court proceeding wherein the most recent CPL 730 examination was ordered.
Dr. Owen explained that when she examined the defendant, he was unable to engage at all in any kind of reality-based discussion of his charges or the realistic legal options available to him. The doctor elaborated that she told the defendant that she needed to speak to him about different things, yet the defendant said to her, Article 12 that's all you need to know [sic]. The doctor continued that the confident way the defendant said this, as well as leaving her no opening for any further discussion, led her to conclude he is not fit to proceed. Dr. Owen stated that the defendant does not fully understand this Article 12, and therefore can not further explain it to her.
Dr. Owen, as well as Dr. Kosson, indicated that the defendant professes to believe that a criminal defense available to him could be found in Title or Article 12 [sic] (these terms were sometimes used interchangeably). The minutes of the hearing do not set forth in great detail to what specific statute or specific defense the defendant is referring when he claims Title 12 is a defense to the instant charges. See, footnote 11, infra, and accompanying text.
Dr. Owen testified that the defendant's Mid-Hudson diagnosis is "schizoaffective disorder and either malingering or rule out malingering" ( see, the minutes, dated January 10, 2011, page 65, lines 21-22). Dr. Owen stated that she does not believe that the defendant is malingering because she feels that Mid-Hudson did not make out a strong enough case to support the condition of malingering. Dr. Owen elaborated that a true finding of malingering is based upon three main parts, that any symptoms on the part of the patient are intentional, false or grossly exaggerated, and motivated by external incentives. The doctor stated that it was her opinion that Mid-Hudson did not fully address this issue. For example, Dr. Owen indicated that the Model Competency Report, dated September 21, 2010, at page 4, in the section of the report where a diagnosis of malingering is to be documented, reflects that the defendant will proceed to trial without invoking the Uniform Commercial Code or Title 12, although he believes they are relevant to his case. Dr. Owen explained that this statement is not reflective of a clear diagnosis of malingering. She elaborated that the hospital is basing its finding of malingering upon the claims that the defendant talked to another patient who the hospital believed is a malingerer.
Dr. Owen testified that the audio recording of the phone call between the defendant and another individual strengthened her opinion that he is unfit to proceed. She explained that it seems that the defendant does not fully understand the legal maneuvering that he is being encouraged by someone else to carry out, that he is looking for affirmation by this coach, asking the coach if he is saying the right things, but not understanding the strategy. Dr. Owen stated that Dr. Kosson's testimony did not alter her opinion as to the defendant's fitness.
Dr. Owen testified that the defendant's mental illness plays a role in his interpretation of events that happen around him every day. The doctor stated that upon her review of the defendant's psychiatric medical records there was nothing to indicate whether the defendant was malingering or was sincere as to his beliefs regarding Title 12 [sic]. Dr. Owen continued that although it is hard to know, it is her sense that the defendant has a predisposition, even while on medication, to being slightly paranoid, that when exposed to other people who may say things, such as that the system is corrupt [sic], the defendant may be more susceptible to that type of influence.
Dr. Owen testified that other factors that went into her assessment of the defendant's fitness included documentation that the defendant improves while on medication, that his thinking becomes clearer, that he is aware that he has to work within the parameters set by the judge at trial. Dr. Owen continued that she believes that the defendant's Title 12 beliefs are not true delusions, that he was not attached to this idea of Title 12, that it was just an utterance. The Court then inquired of the doctor, that if the defendant's Title 12 beliefs are not true delusions, wouldn't that fit into the theory that the defendant is malingering? Dr. Owen responded that it would not comport with the malingering idea, because an utterance is not a psychiatric symptom. She stated that because an utterance is not a manufactured psychiatric symptom, the defendant is not manufacturing symptoms, and therefore he does not meet the criteria of malingering, which requires production of symptoms. Dr. Owen continued that the defendant is being coached by someone else as to how to proceed in this case, but he does not understand it. The doctor indicated that the defendant's only avenue toward resolving the charges made against him, has no shot at being effective, and she believes he is unable to give her any more information.
Dr. Owen testified that the defendant trusts the individual in the audio recording, that he wanted to please that individual, that he does not appear to have trust in the legal system, and that he does not appear to have trust in his attorney. The doctor continued that in her opinion if the defendant had a different lawyer, he would be unable to trust that one either, that this distrust is rooted in his mental illness. Dr. Owen explained that the defendant's records document paranoia, auditory hallucinations, and delusions. Although the defendant's medication diminishes these symptoms, his feelings of distrustfulness are greater than they would be in others, and he is going to be more influenced by people.
Dr. Owen testified that the audio recording of the phone call indicated that the defendant was seeking affirmation from the other individual, and that the defendant, as a person with schizoaffective disorder, is placing undue emphasis on this individual's ideas. Dr. Owen continued that she believes that with additional treatment the defendant could be brought to competence. She also indicated that the defendant's medication must be maintained and his charges should then be rapidly resolved to prevent him from becoming noncompliant with his medication and lapsing into incompetence once more.
Dr. Owen testified that the statements of the defendant regarding Title 12 are not true delusions, and therefore they do not satisfy the criteria of manufactured symptoms for purposes of ascertaining malingering. Dr. Owen explained that the defendant's statements about Title 12 demonstrate that he is vulnerable to being misled by someone he believes in and trusts, and he will do what this individual suggests that he should do. The doctor indicated that this individual is someone that he met in jail, who is now out of jail.
Upon cross-examination, Dr. Owen testified that she never treated the defendant. She testified that she was asked by the defense to give her opinion as to his competence. Dr. Owen continued that when defense counsel contacted her, counsel informed her that the hospital had concluded that the defendant was fit to proceed, and counsel expressed uncertainty as to whether or not he was fit to proceed. Dr. Owen stated that she spent a couple of hours reviewing the records in this case, but did not review every page. She explained that she focused on the most recent competency restoration reports, the most recent discharge summary from Mid-Hudson, two reports from the prior Mid-Hudson admission, some records from 2006, and some of the 730 evaluations that were generated, although she did not focus on these evaluations as much. Dr. Owen testified that she was not aware that the defendant was suspected of malingering back in 2006.
Dr. Owen testified that the discharge summaries she reviewed were written by Dr. Kosson, and that these reports were written after hours of treatment and interviews by the treating physicians. Dr. Owen stated that she did not interview Dr. Kosson, or any of the doctors at Mid-Hudson prior to formulating her opinion in this matter. Furthermore, Dr. Owen stated that she did not interview any of the defendant's family, or anyone aside from the defendant himself. Dr. Owen said that it would be overstating it, to characterize her contact with the defendant as an interview. Dr. Owen conceded that the discharge summary report does not demonstrate that the defendant is unfit to proceed. Dr. Owen explained that her opinion that the defendant is unfit is based upon her belief that the defendant is now changed from what was written in the report. The doctor stated that report is dated November 10, 2010 and she interviewed him in December, 2010.
Dr. Owen testified that during her meeting with the defendant, which lasted for about four minutes, she did her best to engage him. The defendant immediately started talking about federal rules and that all crimes are commercial, and he insisted that she write these things down. Dr. Owen stated that the defendant did not give her a chance to ask him any questions, that he just kept talking, that he said that is all she needs to know. Dr. Owen said that she told the defendant that not talking to her will delay the resolution of his case, that she needed to ask him psychological questions, not legal strategy. The defendant repeated several times that he was all right. At some point, the defendant got up and left the room. Dr. Owen testified that when she told the defendant that not talking to her would delay his case, she is not sure he understood it. The doctor indicated that prior to her review of the defendant's records, after her interview of him, she was leaning towards finding him unfit, but had not yet formed that conclusion, as she needed more information. Dr. Owen testified that her leaning towards unfitness was based upon her belief that the defendant could not stay and talk with her. When asked by the Court why she concluded that the defendant could not talk to her, instead of concluding that the defendant did not want to talk to her, the doctor stated that that was her conclusion. Dr. Owen testified that the defendant did not demonstrate that he was in pain during their meeting.
Dr. Owen testified that she heard the audio recording in this case, and that she heard the defendant say to the other individual that he planned to walk out of the interview once they brought him in, and that is exactly what the defendant did. When Dr. Owen was asked if it is still her conclusion that the defendant had an inability to speak to her, even after hearing that that is what he intended to do, Dr. Owen explained that it was her opinion that the defendant was under the sway of this other individual. Dr. Owen conceded that the defendant initiated the phone call, and that the defendant is clearly able to work with someone else, however, the doctor stated that that does not mean that he could work with an attorney because an attorney is part of the system which the defendant does not trust. Dr. Owen also stated that if the defendant were not taking his medication, he would not have the ability to engage with an attorney. Dr. Owen stated that she did not know if the defendant at the time of the hearing was or was not off of his medication.
Dr. Owen stated that she saw no evidence in her interaction with the defendant of malingering, and that when she reviewed the records from Mid-Hudson, she did not see the justification for the Mid-Hudson conclusion that he was malingering. Dr. Owen stated that regarding her assessment of the defendant, she sat with him for only about four minutes. When asked by the People if she was really able to make a decisive finding that he was malingering based upon a mere four minute meeting, Dr. Owen said that she was able to make an educated hypothesis that malingering was not one of the main issues in this case. Dr. Owen said she did not find that the production of symptoms was intentional. When asked by the People if the audio recording changed her mind, Dr. Owen indicated that she does not feel that the defendant's legal strategy is a symptom. Dr. Owen indicated that the defendant shows other symptoms such as paranoia, not wishing to engage, deficits in interpersonal relationships, a history of allegedly hearing voices, of believing in the shadow man [sic] who tells him to do things. Dr. Owen continued that when people malinger they usually want to draw out [sic] their contact with the evaluator to impress the listener that they have these symptoms. The defendant did not want to do this but wanted to get out of their meeting as quickly as possible. When asked if that could be a symptom of malingering, Dr. Owen testified that she has never known that to be the case. When asked by the Court if the other individual in the phone call told the defendant to terminate the meeting between the defendant and the doctor, that it works, Dr. Owen responded that it works as a legal option, not as a symptom of malingering.
Dr. Owen testified that she does not believe that the defendant's ramblings about Title 12 are manufactured as part of a symptom of a mental illness in order to gain an external goal. Dr. Owen testified that she is aware that among the populations of mental institutions and mental hospitals, claims of Title 12 are used as a strategy for taunting authority and gamesmanship within the legal process. Dr. Owen indicated that it is her opinion that it is a mere coincidence that the defendant happens to be spouting a discourse that has been floating around the court system for a number of years. Dr. Owen also testified that the defendant's mental illness distinguishes the defendant from others who make claims regarding Title 12. The doctor indicated that a defendant can have a mental illness and still be a malingerer, and can have a mental illness and still be competent.
The Court notes that throughout the prisons, jails, and institutions of this state, and throughout the country, inmates have been repeatedly using claims of alleged Title 12 and Uniform Commercial Code violations as ploys to torment public officials. See, for example, Brown v. Thompson, 3/23/2009 N.Y.L.J. 21, (col 1); Brown v. Secretary of State of the New York State Department of State, et al., Index No. 5323/2004, Supreme Court, Queens County, January 11, 2005, Dollard, J.; Thompson v. Brown, Index No. 9492/2009, Supreme Court, Westchester County, July 27, 2009, Capeci, J.; Matter of Fludd v. Goldberg , 51 AD3d 153 [1st Dept 2008]; Monroe v. Beard, 536 F.3d 198 (3rd Cir. (Pa.) July 29, 2008), cert denied, Stover v. Beard, 129 S.Ct. 1647 (U.S. March 23, 2009).
Dr. Owen was asked by the Court if the defendant had not walked out of their interview, but instead gave the doctor specific statements about the alleged crime, would she have found that the defendant lacks competence. Dr. Owen replied that she likely would not have found incompetence. The doctor further indicated that if the defendant could say, at the time of the hearing, that he would proceed to trial without invoking Title 12, as he said to the staff of Mid-Hudson, even if he believed in it, she would change her opinion. Dr. Owen testified that she was aware that the defendant made detailed statements about the crime, but she did not have a chance to speak with the defendant about them, because he walked out on her, as he said he would in the audio recording. The doctor said when the defendant walked out he was calm at first and then more agitated.
When Dr. Owen was asked by the People if it was her opinion that the defendant is motivated by external incentives, the third prong of her test for malingering, she indicated that she can not say what is motivating the defendant. Dr. Owen indicated that based upon what she knows of mental illness, and what she has seen of the defendant, although she can not say for certain, she would have to say no. Dr. Owen continued that she does not know what the external incentive would be. The doctor stated that there could be multiple incentives, such as trying to be seen as incompetent, but she does not know what the defendant's are. They also might include not wanting to go to trial.
Dr. Owen testified that it is her opinion that the defendant's ideas about Title 12 are not true delusions. Yet, records she has read indicate that the defendant has had true delusions in the past. Dr. Owen stated that her belief that the defendant's Title 12 thoughts are not delusions implicate whether or not she thinks the defendant is malingering. The doctor indicated that since they are not true delusions, it is her belief that the defendant is not malingering [sic]. Dr. Owen also testified that another basis for her opinion is the fact that Title 12 was the only legal option the defendant could voice. When asked by the Court and the People as to how she knew that this option was the only one that the defendant could voice, instead of wanted to voice, the doctor explained that the defendant kept repeating it over and over, and when she encouraged him to speak to her, he became more anxious, because she feels he could not fully explain it. Furthermore, she explained that the defendant did not seem capable of sitting down and having a conversation with her. Dr. Owen continued that when the defendant got up to leave the interview, and she continued to talk to him, he was no longer calm and was anxiously trying to get away from her.
Dr. Owen testified that listening to the audiotape did not change her opinion concerning this issue. The doctor continued that the defendant's ability to sit down and have a conversation with someone he trusts is different from his ability to sit down and have a conversation with someone who is evaluating him for a court within a system he does not believe in. Dr. Owen stated that the defendant's mental illness prevents him from having the ability to assist his attorney if he does not trust the attorney. Dr. Owen stated that the defendant distrusts the legal system, and because of that distrust, and his mental illness, he does not have the ability to engage and assist in his own defense. Dr. Owen indicated that the defendant was present in court during the hearing, he behaved himself, there were no outbursts, and in fact, he asked the Court for reassurance that he would be brought back into the courtroom after a recess.
Upon redirect examination, Dr. Owen testified that she did not review every page of the defendant's records, because some pages are not important, such as redundancies or signature pages. The doctor testified that she has worked as a forensic examiner for Kings County Hospital since 2002.
The next witness to testify, called by the defense, was the defendant. Upon direct examination, the defendant testified that he was in court for a competency hearing. He also stated that he was in court as a "distraction to circumvent the truth" ( see, the minutes, dated January 10, 2011, page 133, line 7). The defendant indicated that he is not questioning his competence, he is saying that there is law, Title 12, that should be considered that would help him. The defendant indicated that he knew he was in court, that he knew who the judge was, and that the judge, DA, and lawyer do not have primary authority [sic]. The defendant stated that he does not have a mental health issue and that he does not take medication for mental illness.
When asked by defense counsel what the charges against him were, the defendant replied, "This is the only thing that applies, miss" ( see, the minutes, dated January 10, 2011, page 135, line 11). When he was asked what is the role of the defense counsel, the defendant replied, "You don't have primary authority. The regulation states all crimes are commercial used to generate revenue in commercial business to make money. There's nothing else to talk about" ( see, the minutes, dated January 10, 2011, page 135, lines 17-20). When he was asked who first told him about the regulation, the defendant replied, in regards to the audio recording, "Robert Saunders. He doesn't have anything to hide. You can listen to every conversation. Play every conversation you like. It doesn't bother me. We're speaking actual facts" ( see, the minutes, dated January 10, 2011, page 135, lines 6-8).
The defendant testified that the doctors at Mid-Hudson, by telling him that Title 12 does not apply to him, are trying to circumvent the truth. He stated that he has the law in black and white, that it is true, that the doctors' opinions on this issue are not accurate, and what Mr. Saunders says is. The defendant continued that a judge can not rule that this law does not apply to his case, because it does, and that if a defense lawyer tells him that the judge will rule that it does not apply to his case, his mind will not be changed, because that is all defense counsel is trying to do, change his mind, because they do not want him to know the truth. The defendant indicated that the oath means not to lie under oath in court, that the oath means everything he is saying is true, and it is true.
Upon cross-examination, the defendant testified that there was nothing that had been said that he has not understood. When asked by the People if he heard Dr. Owen testify, the defendant stated, "This is all I'm concerned about. Everything else is irrelevant, miss. Nothing is going to change my mind" ( see, the minutes, dated January 10, 2011, page 141, lines 23-24). When the Assistant District Attorney replied that she was not trying to change his mind, but trying to make sure that he understands what has been said, the defendant responded in the affirmative. When asked if he disagrees with it, but understands it, the defendant answered that it is not the truth, the federal regulations are the truth.
The defendant indicated that he knew who the judge was, but that the judge, the lawyer, and the DA do not have primary authority. The defendant testified that he knew who the DA is, and who his lawyer is.
Upon re-direct examination, the defendant testified that Dr. Owen was "trying to circumvent me from the truth of this regulation. That it applies. She's trying to make me seem that I'm delusional from the fact of the truth of the regulation" ( see, the minutes, dated January 10, 2011, page 143, lines 7-10). The defendant stated that Dr. Owen said that he was delusional, that his belief in Title 12 was delusional, and that "Everything was just a whole play on everyone's playing on the mental illness. Try to change my mind" ( see, the minutes, dated January 10, 2011, page 143, lines 14-15).
Upon questioning by the Court, the defendant stated that he is relying on a body of law that he believes protects him, that he is not relying on any notion of incompetence or mental illness. He also testified that "Crime has no monetary value used as a resource through taxes" ( see, the minutes, dated January 10, 2011, page 144, lines 15-16). The defendant stated that he understood he was facing a lot of time on these cases, and that it does not matter if he is found competent or not, that the regulation applies, and there is nothing else to talk about, and there is nothing that is going to change his mind.
Upon continued questioning by defense counsel, the defendant testified that he does not want to go back to Mid-Hudson, and when asked what are the charges he is facing, he responded that he just answered that question, and that he said all he had to say, and everything else is irrelevant.
Upon continued questioning by the People, the defendant testified that he wants to go home, and who wouldn't want to go home? He stated that the People can listen to every conversation he has, and that this body of law is going to get him home.
Dr. Owen then retook the witness stand and testified that there is nothing that the defendant said on the stand, or did not say, that changes her opinion that he lacks competence. At the next court appearance, on February 8, 2011, the parties stipulated that if Dr. Kosson were recalled to the witness stand, he would testify that his opinion has not changed based upon Dr. Owen's testimony and the defendant's testimony. The defense then rested, and the People remained rested.
CONCLUSIONS OF LAW
The sole issue before the Court is whether or not the defendant is fit to proceed to trial. In People v. Mendez , 1 NY3d 15 , the Court of Appeals held that the test for competence is set forth in CPL 710.10(1), which provides that an "incapacitated person" is defined as "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" (CPL § 730.10). The Court further held that "for purposes of due process, the United States Supreme Court has explained that the defendant must have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . and . . . a rational as well as factual understanding of the proceedings against him'" ( id. at p. 19, citing Dusky v. United States, 362 US 402). Factors to be considered in determining competence include whether the defendant: "(1) is oriented as to time and place; (2) is able to perceive, recall and relate; (3) has an understanding of the process of the trial and the roles of Judge, jury, prosecutor and defense attorney; (4) can establish a working relationship with his attorney; (5) has sufficient intelligence and judgement to listen to the advice of counsel and, based on that advice, appreciate (without necessarily adopting) the fact that one course of conduct may be more beneficial to him then another; (6) is sufficiently stable to enable him to withstand the stresses of the trial without suffering a serious or prolonged or permanent breakdown" ( see, People v. Picozzi, 106 AD2d 413, 414 [2nd Dept 1984]). See also, People v. Valentino, 78 Misc 2d 678.Finally, the Mendez Court found that the burden of proof with respect to this issue is on the prosecution to establish the defendant's competence "by a preponderance of the evidence" ( id.; see also, People v. Troy , 28 AD3d 689 [2d Dept 2006], leave denied, 7 NY3d 852).
In the opinion of the Court, the People have met their burden of showing the defendant's competence within the meaning of the Criminal Procedure Law and the caselaw . Although the Court was presented with conflicting testimony, it finds the testimony of Dr. Kosson to be more persuasive than that of Dr. Owen ( see, People v. Wood, 251 AD2d 521 [2nd Dept 1998], leave denied, 92 NY2d 1041, which held that the hearing court is entitled to credit the testimony of one expert over that of another). Dr. Kosson stated, and the Model Competency Report he completed, dated September 21, 2010 reflects, that the defendant is oriented as to person, place, and time. He is able to perceive, recall, and relate. Dr. Kosson stated that the defendant has insight into happenings in his life, as well as on his ward at Mid-Hudson, and is able to discuss these things with appropriate perspective. Dr. Kosson indicated that the defendant clearly understands the trial process and the roles of the attorneys and the Court, and that the defendant understands and can discuss the charges against him, the events surrounding his arrest, and the prison time he is facing. Dr. Kosson testified that the defendant is able to work with his attorney, and consider the attorney's advice, should he choose to. As reflected in Dr. Kosson's report, the defendant understands that he must work within the parameters of the courtroom, and that he will proceed in court without invoking, although he believes they are relevant, Title 12 or the Uniform Commercial Code. Dr. Kosson testified that the defendant is capable of listening, communicating, and having focused and coherent conversations. The Model Competency Report indicates that any alleged hallucinations or delusions that the defendant has experienced in the past are greatly diminished, and in any event do not appear to interfere with his interactions with others. Furthermore, the report indicates that the defendant was taking his medication, that he should continue to do so, and that the defendant can withstand the stressors of trial. It is Dr. Kosson's opinion, based upon the constant round-the-clock observations of the defendant by the doctor and the defendant's treatment team, that the defendant is competent to stand trial.
In contrast to Dr. Kosson's testimony, Dr. Owen testified that the defendant is not competent to stand trial. While the Court certainly is impressed with Dr. Owen's credentials, the Court is not swayed by her opinion. Dr. Owen met with the defendant on one occasion, a meeting which lasted only four minutes. Dr. Owen did not have the opportunity, as Dr. Kosson and his hospital staff did, to observe first hand, the defendant and his interactions with others, over sustained periods of time. Instead, the opinion of Dr. Owen is based upon extremely short contact during which the defendant referred to Title 12, told Dr. Owen he was fine, and then walked out on her. During Dr. Owen's testimony, she opined that the defendant had serious issues with trust, especially with trusting attorneys, that she had a sense that the defendant suffered from heightened paranoia, and that he was easily swayed by other individuals. Although the Court appreciates that such factors may possibly be common to those who suffer from schizoaffective disorder, and that the defendant may possibly experience them to some degree, the Court finds it difficult to accept Dr. Owen's sweeping conclusions, based upon her four minute encounter with the defendant, and a limited review of some of the medical records, that they all apply to the defendant to the extent that they render him unfit to proceed. Especially in light of Dr. Kosson's contrary findings, based upon his extensive observations of the defendant while he was in the hospital, where the doctor had the benefit of hospital staff reporting back to him on the defendant's behaviors and interactions, his conclusions are more persuasive than those of Dr. Owen.
The Court is aware of Dr. Owen's opinion that the defendant walked out of their interview, because he was unable to talk with her as opposed to choosing not to talk with her. However, based upon the totality of the evidence adduced at this hearing, the Court is not convinced of its validity. First, it must be noted that Dr. Kosson testified that he had many conversations with the defendant wherein they just talked about general matters, or as the doctor explained, they shot the breeze [sic], so to speak. Not every conversation participated in by the defendant concerned a diatribe about Title 12. Second, the audio recording that was introduced into evidence also clearly demonstrates that the defendant is able to have a relatively normal conversation with another person when he chooses to do so. The fact that the defendant thwarted Dr. Owen's desire to interview him, does not in and of itself, demonstrate that he is unfit to proceed. In addition, the audio recording included the defendant's statement of his intention to walk out of the interview with the doctor, and that is exactly what he did. His statement demonstrates to the Court his intent to do exactly that which he did. Therefore, it is difficult for this Court to accept Dr. Owen's hypothesis that the defendant was unable to talk to her, instead of the more logical and obvious conclusion that the defendant chose not to talk with her.
Dr. Kosson and Dr. Owen testified that the defendant suffers from schizoaffective disorder. However, they disagree as to whether or not the defendant is malingering. The doctors both defined malingering as intentionally manufacturing false psychiatric symptoms for a secondary gain. Their disagreement focuses on whether or not the defendant's claims regarding Title 12 and the Uniform Commercial Code are psychiatric symptoms. Whereas both doctors agree that the defendant does not truly believe these statements, Dr. Kosson states that they are nevertheless symptoms of malingering. However, Dr. Owen states that they are merely utterances. It is the defense position, therefore, that without symptoms, there can be no malingering. The Court does not credit this argument, which seems to amount to quibbling, a hyper-technical attempt to avoid denominating the defendant's behavior by its correct name, to wit, malingering. The defendant's endless exegesis on Title 12 and the Uniform Commercial Code are one of the bases upon which he was examined for competence in the first place. In light of the more persuasive hearing testimony, that of Dr. Kosson, the defense contention that they are not psychiatric symptoms of malingering, strains credulity. The bottom line is that both doctors are of the opinion that the defendant is not attached to his constant statements about Title 12 and the Uniform Commercial Code. It is clear therefore, that the defendant is using these claims as an obstacle to avoid going to trial on these indictments, and to seek dismissal of the charges.
The Court notes that the defense argues that since the defendant does not want to be returned to Mid-Hudson, he can't be malingering, or trying to avoid dealing with his cases by staying in the hospital. However, the Court finds that the defendant's objective in these cases is to avoid a trial altogether by simply having his pending cases dismissed. For it is the defendant's own assertion that these cases are unsustainable based upon Title 12 and the Uniform Commercial Code. The defendant's desire to not be returned to Mid-Hudson is of no consequence to his position. As he testified, he hopes to go home.
There was other evidence presented at this hearing which also supports the conclusion that the defendant is malingering. Dr. Kosson testified, as is reflected in the Model Competency Report, that the defendant would shut down and refuse to talk to him about his legal claims, which he concluded was a sign of malingering. Dr. Kosson stated that this indicated to him that the defendant did not truly believe what he was saying, and that he was afraid of saying the wrong thing. The doctor testified that it was his experience that non-malingerers were usually more open about discussing their ideas.
It is interesting to note, that while Dr. Owen also testified that the defendant was not attached to his beliefs about Title 12 and the Uniform Commercial Code, she thought that that was not a sign of malingering. The Court agrees with the position of the People as stated in oral argument ( see, the minutes, date February 8, 2011, pages 31-33) that Dr. Kosson's finding makes more sense, that if an individual is not attached to his ideas, and if he is espousing them anyway, it must be for another purpose, in this case, for the purpose of malingering.
The Court finds that the audio recording that was played in court also supports Dr. Kosson's position that the defendant is malingering. In that recording, it is clear that the defendant, who placed the phone call himself, was soliciting the help of someone else. He did not appear to be a victim under the control of another individual, being told what to do, as Dr. Owen suggests. Instead, he was seeking advice on what the best things are to say to end his case. It was clear to the Court that the defendant was an active participant in strategizing how to handle his instant criminal cases. He said he would stick to his plan, and that he would walk out of his meeting during the CPL 730 evaluation. That is exactly what he did.
The audio recording indicates that the defendant was confused as to whether a 730 hearing and a competency hearing are the same thing. The individual that the defendant was talking to informed him that they are. The defense submits that the fact that the defendant did not know this specific detail demonstrates his unfitness. However, the Court disagrees. It is not necessary for the defendant to know every legal term before he can be found fit. It is clear from the recording that the defendant had a plan, he said he was going to "stick to the bases", and he did, demonstrating his intent, his plan, and his commitment to his position that Title 12 is a defense. Furthermore, it must be noted that on the recording, the defendant indicated he knew the date of his CPL 730 exam, the day of his last court appearance, he knew how much time he had left on his phone call, he knew how much time had passed during his last court appearance between speaking to his attorney and being brought out before the judge, all factors further demonstrating his fitness to proceed.
This audio recording, besides establishing that the defendant is a malingerer, besides establishing that it was the defendant's choice and intent not to talk to Dr. Owen, besides establishing that the defendant is not a victim under the control of another, also establishes that the defendant has the ability to work with another person. During this recorded phone call, the defendant was having an articulate, relevant, coherent conversation where he was working with someone to try and achieve his goal, namely dismissal of the instant cases. If the defendant can work with this individual, he certainly can choose to work with an attorney.
The Court notes that Dr. Kosson testified that he had a semi-working relationship with the defendant.
As for the defendant's testimony during this hearing, the defendant indicated that he understands the roles of the players in the trial process, and that he understood what occurred at the hearing. As for the part of the defendant's testimony where he continued on about Title 12 and how that is all that is relevant to his cases, the Court notes how firm he was in asserting this position. In the audio recording, the defendant indicated that he would continue to "stick to the bases" and keep telling the parties involved in his case that Title 12 is the law that will end his prosecution. The defendant's testimony at this hearing followed his plan which was reflected in the recording. Furthermore, during his testimony, the defendant was respectful, polite, and appropriately behaved, demonstrating his ability to cooperate with others and withstand the stressors of trial.
It must be noted that "competency, in the final analysis, is a legal issue which must be determined by the court . . ." ( see, People v. Valentino, 78 Misc 2d 678, 680; see also, People v. Sanabria, 266 AD2d 41 [1st Dept 1999], leave denied, 94 NY2d 884), and the Court may utilize its own observations as to such a finding ( see, People v. Gensler, 72 NY2d 239. In this case, the Court's own observations of the defendant are supportive of Dr. Kosson's opinions and conclusions. Accordingly, the Court finds that the defendant is fit to proceed.
The court notes, in finding that the defendant has the capacity to be tried, that it is not suggesting that the defendant is not in any way mentally impaired. However, it is settled law that a defendant may be suffering from psychiatric illness, and not be incapacitated under Article 730 ( See, People v. Ciborowski, 302 AD2d 620 [3d Dept 2003], appeal denied, 100 NY2d 579; People v. Shiffer, 256 AD2d 818 [3d Dept 1998], appeal denied, 93 NY2d 878; People v. Harris, 109 AD2d 351 [2d Dept 1985]; People v. Surdis , 23 AD3d 841 [3d Dept 2005]; People v. Stonis, 246 AD2d 911 [3d Dept 1998], appeal denied, 92 NY2d 883). Mental illness and competence are distinguishable concepts.
Based upon the foregoing, the defendant's application for an order finding him to be an incapacitated person pursuant to Article CPL 730 is denied.
This constitutes the decision and order of the Court.
The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.