| People v Tirado |
| 2013 NY Slip Op 05648 [109 AD3d 688] |
| August 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vFrancisco Tirado, Appellant. |
—[*1] Francisco Tirado, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski,A.J.), rendered March 9, 2011. The judgment convicted defendant, upon a nonjuryverdict, of course of sexual conduct against a child in the first degree and course ofsexual conduct against a child in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by directing that the periods of postrelease supervision shall run concurrently andas modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a nonjuryverdict, of course of sexual conduct against a child in the first degree (Penal Law §130.75 [1] [b]) and course of sexual conduct against a child in the second degree(§ 130.80 [1] [b]). We reject defendant's contention that Supreme Court erred indenying his request for access to the mental health counseling records of one of the twovictims in this case. Mental health records are discoverable "where a defendant candemonstrate a good faith basis for believing that the records contain 'data relevant andmaterial to the determination of guilt or innocence,' a decision which will rest 'largely onthe exercise of a sound discretion by the trial court' " (People v McCray, 102 AD3d 1000, 1005 [2013], quotingPeople v Gissendanner, 48 NY2d 543, 548 [1979]). It is well settled that"[c]onfidential psychiatric records should be disclosed only when their confidentiality issignificantly outweighed by the interests of justice" (People v Felong, 283 AD2d951, 952 [2001], lv denied 96 NY2d 862 [2001] [internal quotation marksomitted]). Here, the court reviewed the records in camera before ruling that defendantwas not entitled to any portion of that victim's mental health counseling records, and thecourt did not abuse its discretion in reaching that conclusion.
We reject defendant's further contention that the court abused its discretion byprecluding cross-examination of the same victim regarding her psychiatric history. "Adefendant has a constitutional right to confront the witnesses against him throughcross-examination. With respect to the psychiatric condition of a witness, 'the defense isentitled to show that the witness's capacity to perceive and recall events was impaired bythat condition' " (People v [*2]Middlebrooks, 300AD2d 1142, 1143 [2002], lv denied 99 NY2d 630 [2003], quoting People vBaranek, 287 AD2d 74, 78 [2001]). Here, defendant was permitted to question thatvictim about any medications that she was presently taking and whether thosemedications impaired her memory or affected her testimony. However, defendant failedto show that her psychiatric history "would bear upon her credibility or otherwise berelevant" (People v Byers, 254 AD2d 494, 494 [1998], lv denied 93NY2d 1043 [1999]; see People v Beckett, 186 AD2d 209, 210 [1992], lvdenied 81 NY2d 760 [1992]). Therefore, the court did not abuse its discretion inlimiting the cross-examination of that victim (see People v Corby, 6 NY3d 231, 234-235 [2005]).
Defendant's contentions that the court erred in denying his motion for full disclosureof the journals of both his ex-wife and one of the victims and that he has been deprivedof appellate review because the People returned those journals to their respective ownersfollowing trial are without merit. The court reviewed the journals in camera andconcluded that the People had properly disclosed all portions constitutingRosario material. As to defendant's contention that he has been deprived ofappellate review, we note that the journals were not received in evidence and there wasno request by defense counsel that they be preserved, and thus defendant's contention isnot properly before us (see CPL 470.05 [2]).
Defendant was not prejudiced as a result of the adjournment of the trial, which wasnecessitated because an expert witness for the prosecution was not available during theweek in which the trial was scheduled to begin. Generally, " 'requests for briefadjournments to secure witnesses should be granted where the witness is identified, iswithin the court's jurisdiction and there is a showing of some diligence and good faith' "(People v Hernandez, 146 AD2d 646, 647 [1989]). Here, the court offered tomove the trial ahead by one week, and the People agreed to that change in scheduling.However, defense counsel was busy that week and, as a result, the court moved the trialto the next available date, which was almost six months later. Defendant's contention,raised in his pro se supplemental brief, that the adjournment deprived him of his right toa speedy trial is unpreserved for our review (see People v Diefenbacher, 21 AD3d 1293, 1294 [2005],lv denied 6 NY3d 775 [2006]), and is without merit inasmuch as the delay wasthe result of court congestion (see CPL 30.30; see also People v Johnson,209 AD2d 986, 986 [1994], lv denied 84 NY2d 1033 [1995]; see generallyPeople v Anderson, 66 NY2d 529, 534-536 [1985]).
As the People correctly concede, the court erred in imposing consecutive periods ofpostrelease supervision. "Penal Law § 70.45 (5) (c) mandates that the periods ofpostrelease supervision merge and are satisfied by the service of the longest unexpiredterm" (People v Kennedy,78 AD3d 1477, 1479 [2010], lv denied 16 NY3d 798 [2011]). We thereforemodify the judgment accordingly. However, we reject defendant's further contention thatthe sentence is unduly harsh or severe, particularly with respect to the imposition ofconsecutive terms of incarceration. We have considered defendant's remainingcontentions in his main and pro se supplemental briefs and conclude that none warrantsreversal or further modification of the judgment. Present—Scudder, P.J., Centra,Carni, Sconiers and Martoche, JJ.