| People v Brown |
| 2013 NY Slip Op 06526 [110 AD3d 481] |
| October 8, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Curtis Brown, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Timothy C. Stone of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J., at speedy trialmotion; Edward J. McLaughlin, J., at jury trial and sentencing), rendered September 15,2009, convicting defendant of criminal sexual act in the first degree, sexual abuse in thefirst degree and criminal contempt in the first degree, and sentencing him, as a secondviolent felony offender, to an aggregate term of 10 years, unanimously affirmed.
The court properly denied defendant's speedy trial motion. Even with the periodsconceded by the People to have been erroneously excluded, there is insufficientincludable time to require dismissal.
In denying the motion, the court properly excluded periods that constituted"reasonable period[s] of delay resulting from . . . proceedings for thedetermination of competency and the period during which defendant [was] incompetent"(CPL 30.30 [4] [a]). The period during which defendant was incompetent encompassedperiods during which judicial determinations of incompetency were still in effect,regardless of whether psychiatrists at the facility to which defendant had been committedhad expressed opinions that defendant was no longer incompetent. Even if the Peoplehad some "duty of inquiry" when the facility concluded that defendant was competent,"[i]t is the determination that the defendant is no longer incapacitated that brings theDistrict Attorney back into the proceedings and revives the People's trial readinessobligations under CPL 30.30" (People v Lebron, 88 NY2d 891, 895 [1996]), and"[a] finding of trial competency [to stand trial] is within the sound discretion of the trialcourt and involves a legal and not a medical determination" (People v Phillips, 16 NY3d510, 517 [2011] [internal quotation marks omitted]).
Similarly, each time defendant was found competent, the People were entitled to areasonable period to prepare for trial (see People v Green, 90 AD2d 705 [1982],lv denied 58 NY2d 784 [1982]), measured from the judicial determination ofcompetency. Each of these periods constituted "a reasonable period of delay resultingfrom . . . proceedings for the determination of competency . . .pre-trial motions" within the meaning of CPL 30.30 (4) (a). Furthermore, in eachinstance where the motion court found a delay to be reasonable and thus excludable,including time to prepare following findings of competency, time to respond to [*2]discovery requests, and time to produce grand jury minutes,the court's determination was appropriate.
The court also properly excluded a period that resulted from a pro se motion made bydefendant, including the time that it was under consideration by the court (seeCPL 30.30 [4] [a]), even though the court ultimately chose not to decide the motion afterdefense counsel declined to adopt it and instead offered to submit his own motion on thesame subject. The record fails to support defendant's assertion that his pro se submissionshould not be deemed a motion for purposes of CPL 30.30 (4) (a).
Turning to trial-related issues, we find no grounds for reversal. The court properlyexercised its discretion when it denied defense counsel's midtrial applications for yetanother competency examination (see Pate v Robinson, 383 US 375 [1966];People v Tortorici, 92 NY2d 757 [1999], cert denied 528 US 834 [1999];People v Morgan, 87 NY2d 878 [1995]). Defendant made two brief and isolatedoutbursts. One outburst was a crude exercise in rhetoric, the other was an inartfully statedlegal argument, and neither suggested that defendant lacked the ability to understand theproceedings or assist in his defense. On the contrary, defendant took an active role in hisdefense and otherwise exhibited competence throughout the trial (see People vMendez, 306 AD2d 143 [1st Dept 2003], lv denied 100 NY2d 622 [2003]).Even when defendant's outbursts are viewed in the context of the prior findings ofincompetency, they did not require the court to order a new examination.
The court properly granted the People's motion to quash defendant's subpoena for thevictim's rape crisis counselor records, which were privileged under CPLR 4510. Sincedefendant did not establish a basis for his claim that these records contained materialevidence, he was neither constitutionally nor statutorily entitled to examine the records orto have the court examine them in camera (see Pennsylvania v Ritchie, 480 US39, 58 n 15 [1987]; see also CPL 60.76; People v Gissendanner, 48NY2d 543, 548-551 [1979]). Defendant's showing consisted of general and speculativeclaims that could apply to nearly any case involving confidential records.
We have considered and rejected defendant's arguments concerning the sufficiencyof the evidence supporting the contempt charge and the admissibility of evidencereceived under the prompt outcry exception to the hearsay rule.Concur—Friedman, J.P., Richter, Feinman and Gische, JJ.