| Matter of State of New York v Bernard D. |
| 2009 NY Slip Op 03098 [61 AD3d 567] |
| April 23, 2009 |
| Appellate Division, First Department |
| In the Matter of State of New York,Respondent, v Bernard D., Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, New York (Robert C. Weisz of counsel), forrespondent.
Order, Supreme Court, Bronx County (Michael A. Gross, J.), entered October 28, 2008,which, sua sponte, reconsidered an order, same court and Justice, entered October 22, 2008, interalia, granting petitioner State of New York's motion to videotape any psychiatric examination ofrespondent conducted in connection with this civil management proceeding pursuant to MentalHygiene Law article 10, and adhered to the prior order, unanimously reversed, on the law,without costs, and the motion denied. Appeal from the October 22, 2008 order unanimouslydismissed, without costs, as subsumed in the appeal from the October 28, 2008 order.
The State does not have a right to videotape Mental Hygiene Law § 10.06 psychiatricexaminations (Matter of State of New York v R.H., 21 Misc 3d 1127[A], 2008 NY SlipOp 52249[U] [2008]; Matter of State ofNew York v Rosado, 20 Misc 3d 468 [2008]). Article 10 contains no express provisionauthorizing such videotaping, unlike other contexts in which litigants are given the right tovideotape (see Matter of Charles S.,60 AD3d 954 [2d Dept 2009]; 22 NYCRR 202.15, implementing CPLR 3113 [b] [civildepositions]; Family Ct Act § 1038 [c] [psychiatric examinations in certain childprotective proceedings]). Indeed, by limiting discovery of section 10.06 examinations to theproduction of the examiners' reports (Mental Hygiene Law § 10.06 [d], [e]), and leavingthe methodology of examinations up to the examiner (Mental Hygiene Law § 10.08 [b]),article 10 indicates that the Legislature intended that the courts not have the discretion to orderthe videotaping of section 10.06 examinations. Although in the context of criminal cases inwhich a psychiatric defense is advanced, the Court of Appeals has held that fundamental fairnessrequires that the State have a reciprocal right to observe a defendant's psychiatric examinationfor the purposes of trial preparation (Matter of Lee v County Ct. of Erie County, 27NY2d 432, 444 [1971], cert denied 404 US 823 [1971]; see also CPL 250.10[3]), and although the same fairness concerns are implicated in article 10 proceedings, they aremitigated by the State's right to examine the respondent before the latter's right to counselattaches (Mental Hygiene Law § 10.05 [e]; § 10.06 [c]), to subject him or her to arebuttal examination after it reviews the report of his or her examiner (Mental Hygiene Law§ 10.06 [d]), and to have access to any relevant medical, clinical or other [*2]information generated by any state agency, office or department(Mental Hygiene Law § 10.08 [c]). We have considered the State's other arguments andfind them unavailing. Concur—Gonzalez, P.J., Mazzarelli, Saxe, Moskowitz and Richter,JJ.