People v. Miller , 659 N.Y.S.2d 650 ( 1997 )

Judgment affirmed. Memorandum: In October 1993 defendant was charged with murder in the second degree, criminal possession of a weapon in the third degree, and criminal possession of a weapon in the fourth degree. Almost a year later, defendant served a CPL 250.10 notice of intention to offer psychiatric testimony. Although the notice was not timely served, the People agreed to accept it in exchange for defendant’s acceptance of their untimely CPL 710.30 notice. In February 1995 Dr. Brian Joseph, a psychiatrist, examined defendant for the purpose of preparing for the affirmative defense of extreme emotional disturbance. Subsequently, Dr. Joseph declined to testify for the defense.

On March 31, 1995, defense counsel informed County Court that after "exhaustive efforts” he had been unable to obtain the services of a psychiatrist to render an opinion favorable to the defense. Defense counsel advised the court that he intended "to continue to seek [an opinion from an expert] as I see that to be [defendant’s] best defense”. The People objected on the ground that the case was scheduled for imminent trial and they would "require a substantial period of time to prepare for a psychiatric defense”. The court granted the People’s motion, which was characterized as a motion "to preclude any psychiatric defense”. On April 27, 1995, defense counsel asked the court to reconsider its preclusion order. Defense counsel still had not been able to retain an expert, but asked the court to allow defendant to present psychiatric testimony if counsel was able to find an expert. The court declined to reconsider its order.

Under certain circumstances, it may be an abuse of discretion for the court to preclude psychiatric testimony. People v Oakes (168 AD2d 893, 894, lv denied 78 NY2d 957) and People v Burton (156 AD2d 945, lv denied 75 NY2d 917), relied upon by defendant, are distinguishable from the present case because in those cases the defendants had failed to file timely notice of their intention to offer psychiatric testimony, but had experts prepared to testify at trial. Thus, the defendants were denied their Sixth Amendment right to present witnesses. That right, however, is not unlimited, and the court must balance "the prosecution’s interests in an orderly trial and adherence to procedural rules with defendant’s right to present witnesses at trial” (People v Oakes, supra, at 894). Here, the case was ready for trial and defense counsel had advised the court that he was unsuccessful in his efforts to locate an expert. Because this case had been pending for almost 18 months, the court’s refusal to delay trial to allow defendant "to endlessly pursue an elusive witness” was not an abuse of discretion (People v Foy, 32 NY2d 473, 478; see, People v Jackson, 111 NY 362).

In his pro se supplemental brief, defendant contends that the court erred in failing to instruct the jury that criminal possession of a weapon in the third degree is an inclusory concurrent count of murder in the second degree and that criminal possession of a weapon in the fourth degree is an inclusory count of criminal possession of a weapon in the third degree. That contention is not preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). We have considered defendant’s remaining contentions, including those raised in the pro se supplemental brief, and conclude that they are without merit.

All concur except Callahan and Boehm, JJ., who dissent and vote to hold the case, reserve decision and remit the matter to Erie County Court for further proceedings in accordance with the following Memorandum.