Opinion
December 29, 1961
Appeal by defendant from a judgment of the County Court, Queens County, rendered December 10, 1953, convicting him, after a jury trial, of murder in the second degree, and sentencing him to serve a term of 25 years to life. Judgment reversed on the law and the facts, and new trial ordered. Defendant was charged with killing his mother by inflicting 13 stab wounds upon her. Upon the trial the only substantial issues were: (1) whether he was capable of forming the necessary criminal intent (Penal Law, § 1046); and (2) whether he knew either the nature and quality of his act or that the act was wrong. Subsequent to arraignment, pursuant to statute (Code Crim. Pro., §§ 658, 662), two psychiatric examinations were had of defendant, and the reports thereof were filed by the court in the office of the Clerk. Said section 662 provides in part that: "The report of the psychiatrists made pursuant to this section shall not be received in evidence upon the trial of the defendant". In our opinion, this section (Code Crim. Pro., § 662) prohibits the introduction into evidence of the entire psychiatric report or any part thereof, either directly or indirectly; its prohibition is not confined merely to the findings of the doctors contained therein ( People v. Butchino, 13 A.D.2d 183). We also find upon the record before us that the defendant did not waive the protection of this section (cf. People v. Roth, 13 A.D.2d 295, 298-299). During the trial there were repeated references to the contents and the conclusions of both psychiatric reports. In our opinion, such references may have substantially affected a proper determination by the jury (cf. People v. Draper, 278 App. Div. 298). Moreover, the error was compounded by referring to the reports in the hypothetical question posed by the People to their expert witness ( People v. Samuels, 302 N.Y. 163; People v. Keough, 276 N.Y. 141). Said reports were not before the jury and the court should not have permitted the expert witness to state, over objection, the qualifications of the other psychiatrists who prepared both reports. In our opinion, further error was committed by the court in permitting the defendant to be questioned with respect to whether he remembered giving answers to certain questions posed by a psychiatrist at Kings County Hospital. Such questions, in effect, placed "alleged admissions" before the jury without any established foundation therefor (cf. People v. Peetz, 7 N.Y.2d 147). Nolan, P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.