In Santana, defendant had made an application to the court for permission to audiotape the psychiatric examination for the purpose of discussing it with his defense expert.Summary of this case from People v. Chung
Argued June 1, 1992
Decided July 7, 1992
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Joseph S. Calabretta, J.
Stanley Neustadter for appellant.
Richard A. Brown, District Attorney (Annette Cohen and Barbara D. Underwood of counsel), for respondent.
Defendant was indicted for forcible rape and robbery, first degree sexual abuse and other crimes for three separate incidents in Queens in which he attacked different women at knifepoint. He pleaded not guilty by reason of insanity. At the jury trial, the only issue was whether defendant lacked the mental capacity to commit the crimes by reason of mental disease or defect (Penal Law § 40.15). Defendant was convicted on all charges, and the Appellate Division affirmed unanimously.
In his appeal to our Court, defendant argues that there should be a reversal because of the trial court's restriction of his counsel's right to consult with his own psychiatric expert witness in connection with the cross-examination of the People's expert and concerning the possible presentation of surrebuttal testimony. We agree and conclude that there should be a new trial. For reasons which follow, however, we do not agree with defendant that the indictments should be dismissed for violation of the speedy trial rule (CPL 30.30). Nor do we find merit in defense counsel's contention that the trial court was required to permit him to audiotape the examination of his client by the People's clinical psychologist.
At trial, defendant conceded that he had committed the offenses and called witnesses only on the issue of his mental condition. The principal defense witness was Dr. Stephen Teich, a psychiatrist, who gave his expert opinion, based on several interviews with defendant, that defendant was suffering from post-traumatic stress disorder. Defendant, as a child, had been sexually abused by his brother. In 1967, at the age of 19, he had seen intense combat as a Marine in Vietnam and had had several emotionally disturbing experiences. Defendant's history after his discharge included periods of drug and alcohol abuse, attempts at suicide and a period of psychiatric treatment in a Veteran's hospital. According to Dr. Teich, defendant was overwhelmed with feelings of resentment, hostility, self-hatred and anxiety. In Teich's opinion, he was suffering from post-traumatic stress disorder and lacked the substantial capacity to know and appreciate the nature, consequences and wrongfulness of his acts.
When Dr. Teich had completed his direct testimony, the People for the first time sought permission pursuant to CPL 250.10 (3) to have defendant examined by their own expert, Dr. Erwin Parson, a clinical psychologist and certified psychotherapist. The court granted the application and directed that it be conducted that same evening. Because of the time constraints, Dr. Parson could not prepare the written report which, under CPL 250.10 (4), the examining doctor is required to prepare and furnish to the defense. Defense counsel, therefore, requested permission to audiotape the examination for the purpose of discussing it with Dr. Teich. The court denied this request, concluding that to allow the tape recording "would be * * * like having Dr. Teich there", something not permitted by CPL 250.10 (3).
CPL 250.10 (3) provides that defendant has a right to have his counsel present at the examination as an observer and that the District Attorney may also be present. There is no provision for the presence of the opposing psychiatrist or psychologist.
After some discussion, the court, over defendant's objection, made the ruling which is in dispute: that defense could not talk to Dr. Teich about Dr. Parson's examination of defendant until Dr. Teich was "completely through" as a witness, and that if he did so, Dr. Teich would be prohibited from testifying in surrebuttal. Dr. Parson, in his testimony, agreed that defendant was suffering from post-traumatic stress disorder. In his opinion, however, when defendant committed the crimes he did not lack the capacity to know and appreciate the nature and consequences of his acts. The defense did not call Dr. Teich in surrebuttal.
Defendant's trial, which took place in May 1987, was preceded by a prolonged period during which defendant was legally found to be lacking in the capacity to understand the proceedings against him or to assist in his defense and, thus, incompetent to stand trial. The period relevant to defendant's CPL 30.30 contention begins on April 10, 1985 when the trial court — Supreme Court, Queens County — found defendant unfit to stand trial. By this order, which was based on psychiatric examinations and a hearing, the court committed defendant to the custody of the Commissioner of Mental Health for a period of six months. Similar incompetency proceedings were also being conducted in New York County in connection with other charges pending against defendant. On April 23, 1985, Supreme Court, New York County, found defendant unfit to stand trial and committed him to the custody of the Commissioner of Mental Health for a period not to exceed one year. The Commissioner, operating under both the Queens County and New York County orders, directed that defendant be sent to the Mid-Hudson Psychiatric Center.
On October 10, 1985, the Queens County six-month commitment order expired. Defendant remained in Mid-Hudson, however, under the New York County order which still had several months of the one-year commitment remaining before expiration. On March 4, 1986 the director of Mid-Hudson notified New York County Supreme Court that the hospital psychiatrists had found defendant fit to proceed to trial. On March 25 pursuant to New York County Supreme Court's direction, defendant was incarcerated in the Bellevue Hospital prison psychiatric ward for psychiatric treatment and tests. New examinations were ordered to determine defendant's competency. On July 7, 1986 the examining doctors reported that in their opinion defendant was fit to proceed. On September 24, 1986, Supreme Court, New York County, found defendant fit to proceed to trial and on that day accepted his plea of guilty to the New York County charges.
On September 24, 1986, Mid-Hudson for the first time notified Queens County Supreme Court (the trial court in the instant proceeding) and the Queens County District Attorney's office that Mid-Hudson had found defendant to be competent and had discharged him. The People announced their readiness for trial on October 16, 1986, and defendant was returned to Queens for a new competency examination. On November 17, 1986, Queens County Supreme Court found defendant competent to proceed to trial.
CPL 730.50 (2) and 730.60 (2) required Mid-Hudson to notify the Queens County Supreme Court and the District Attorney when it retained defendant beyond the six-month commitment order and later when it discharged defendant to Bellevue. Because of Mid-Hudson's failure to comply with its statutory obligations, the Queens County Supreme Court and District Attorney were not apprised of defendant's status until September 24, 1986.
Defendant moved to dismiss the charges against him because of the District Attorney's failure to announce readiness within the six-month period prescribed by CPL 30.30 (1) (a) Supreme Court, Queens County, denied the motion on June 11, 1987 and in a written decision granted defendant's motion for reargument on July 2. On reargument, the court adhered to its original decision and concluded that inasmuch as defendant was incompetent by virtue of the order of Supreme Court, Queens County, from April 10, 1985 until November 17, 1986, all of the time from April 10, 1985 until October 16, 1986, when readiness was announced, was excludable from the six-month limitation as "proceedings for the determination of competency and the period during which defendant is incompetent to stand trial" under CPL 30.30 (4) (a). The Appellate Division agreed with the denial of defendant's speedy trial motion but did so on the ground that defendant's successive detentions in Mid-Hudson and Bellevue Hospital made defendant unavailable for trial and that his presence could not be obtained with due diligence (see, CPL 30.30 [c]). It found no impropriety in the trial court's limitation on consultations between defense counsel and Dr. Teich.
Between December 8, 1983, the date of defendant's arrest, and April 10, 1985, the date of the Queens County finding of unfitness and order of commitment, the parties agree that only 36 days are chargeable to the People, the balance being exempted by reason of motions and other proceedings. The only period in dispute is that between October 10, 1985, the expiration date of the Queens County six-month commitment and October 16, 1986, the date of the statement of readiness.
Claimed Trial Errors
Preliminarily, we note that the trial court did not act improperly in declining to direct that Dr. Parson's examination of defendant be tape-recorded. Defendant argues that by the terms of CPL 250.10 (4) he had the absolute right to the tape recording. No authority is cited for the proposition and the statute does not support it. While the statute states that a written report of the psychiatric examination must be prepared and made available to both counsel, tape-recording of the examination is not mandatory. On the contrary, the statute provides that "[n]o transcript or recording of the examination is required, but if one is made, it shall be made available to both parties prior to the trial" (CPL 250.10 [emphasis added]). We agree with the People that the section is designed to further the interchange of expert information between the prosecutor and defense counsel by directing that both counsel be given access to the written report of the examination and to the transcript or recording, if one has been required. The decision of whether to require a transcript or recording, however, is left to the discretion of the Trial Judge. We need not decide whether the court abused its discretion by denying defendant's request to audiotape because we conclude that there is an alternative ground for reversal.
Defendant's principal ground for seeking a new trial is the ruling that defense counsel could not discuss the prosecution's rebuttal evidence (Dr. Parson's expert testimony concerning his examination of defendant) with his own expert, Dr. Teich, until after Dr. Teich had finished all his testimony in the case. This ruling effectively precluded defense counsel from offering any surrebuttal evidence if he chose to enlist the assistance of his own expert in developing and conducting the cross-examination of the People's expert. Defense counsel was given a Hobson's choice: either consult with Dr. Teich about Dr. Parson's testimony and forgo any surrebuttal or refrain from any consultation with Dr. Teich and be free to call him as a surrebuttal witness.
We agree with defendant that the ruling interfered significantly with his right to make an effective presentation on the only issue before the jury — his affirmative defense of insanity (Penal Law § 40.15). As the Supreme Court has emphasized, "when the State has made the defendant's mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant's ability to marshal his defense" (Ake v Oklahoma, 470 U.S. 68, 80). Indeed, the Court has cautioned that "without the assistance of a psychiatrist to * * * present testimony, and to assist in preparing the cross-examination of a State's psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high" (id., at 82).
To make defense counsel in this case undertake the risky and critical task of cross-examining the People's psychiatric expert without Dr. Teich's advice and assistance put defendant at a serious disadvantage. Requiring him to forgo any discussion of Dr. Parson's testimony with Dr. Teich if he planned to call Teich to rebut that testimony made an effective surrebuttal practicably impossible. Moreover, as defendant points out, to prevent one psychiatric expert from knowing the basis of the other expert's opinion on the question of defendant's sanity in a criminal case is incompatible with the legislative policy evident in CPL 250.10 (3) and (4) of assuring that each party has unrestricted access to the relevant psychiatric opinions and information of the other. It can never be known, of course, what conclusion the jury would have reached if defendant had had the benefit of his expert's advice in cross-examining Dr. Parson or had been able to frame and present an appropriate surrebuttal. The damage to defendant's case from the ruling is not subject to calculation.
The People contend, however, that the trial court's directive was a proper exercise of its discretion. They allude to the discretion permitted the trial court to prevent consultation between the defendant and his counsel during defendant's cross-examination (see, e.g., People v Narayan, 58 N.Y.2d 904). But this case involves a totally different question — the right of defense counsel to talk with his own expert while he is cross-examining the opposing expert. The People also cite decisions upholding the trial court's discretion to exclude witnesses from the courtroom while other witnesses are testifying (see, e.g., People v Cooke, 292 N.Y. 185, 190-191; Levine v Levine, 56 N.Y.2d 42, 49-50). Such cases, however, involve witnesses to the events or facts in dispute where the truth-seeking function of the trial process is furthered by "preventing one prospective witness from being taught by hearing another's testimony" (6 Wigmore, Evidence § 1838, at 461 [Chadbourn rev 1976]).
The same reasons for exclusion do not apply to expert witnesses. It has been pointed out that "the presence in the courtroom of an expert witness who does not testify to the facts of the case but rather gives his opinion based upon the testimony of others hardly seems suspect and will in most cases be beneficial, for he will be more likely to base his expert opinion on a more accurate understanding of the testimony as it evolves before the jury" (Morvant v Construction Aggregates Corp., 570 F.2d 626, 629-630 [6th Cir], cert dismissed 439 U.S. 801; see, United States v Kosko, 870 F.2d 162, 164 [4th Cir]). Moreover, we note that the Federal Rules of Evidence, although not binding, support defendant's position. While a fact witness under the Federal Rules must be excluded on the request of a party, an expert witness is generally exempted from the exclusion requirement as "a person whose presence is shown by a party to be essential to the presentation of the party's cause" (Federal Rules Evid, rule 615 ; see, e.g., Mayo v Tri-Bell Indus., 787 F.2d 1007, 1013 [5th Cir]; Trans World Metals v Southwire Co., 769 F.2d 902, 910-911 [2d Cir]). We conclude that in the circumstances of this case the court's ruling constituted reversible error.
CPL 30.30 Motion
The question pertaining to the denial of defendant's speedy trial motion turns on whether the courts below should have excluded from the six-month limitation the time that defendant was incompetent to proceed to trial. We conclude that this exclusion was proper under CPL 30.30 (4) (a) which, in pertinent part, provides:
"In computing the time within which the people must be ready for trial * * * the following periods must be excluded:
"(a) a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: proceedings for the determination of competency and the period during which defendant is incompetent to stand trial" (emphasis added).
The proceedings pertaining to defendant's competency were instituted by defendant. On April 10, 1985, Queens County Supreme Court, after a hearing at which defendant called three psychiatrists and the People one, determined in a written decision that defendant was an incapacitated person, unable to assist counsel in his defense and, therefore, unfit to proceed to trial. On April 23, 1985, Supreme Court, New York County, in a similar proceeding found that defendant "lack[ed] the capacity to understand the proceedings against him or to assist in his own defense" and adjudicated him to be an incapacitated person. Although the Queens County six-month commitment order expired on October 10, 1985, that court's finding of incompetency remained unaltered as did the similar finding by New York County Supreme Court which was in effect until September 24, 1986 when that court found defendant fit to proceed. The Queens County finding of unfitness remained in effect until that court's finding of fitness to proceed on November 17, 1986, about a month after the prosecutor's statement of readiness.
Defendant argues that the Queens County District Attorney failed in his duty to monitor the status of defendant in Mid-Hudson and that much, if not all, of the time following the expiration of the Queens County commitment order on October 10, 1985 should not be exempted. We need not address the issue of the Queens County District Attorney's monitoring of defendant's status because defendant was legally held to be unfit under the New York County order which remained in effect until September 24, 1986.
The speedy trial statute specifically recognizes as a separate factor resulting in delay warranting an exemption from the time limitation "the period during which defendant is incompetent to stand trial" (CPL 30.30 [a] [emphasis added]) — i.e., when, because of an existing determination of defendant's unfitness to proceed due to his inability to understand the proceedings against him or to assist in his defense, the prosecution may not legally proceed to trial and conviction (see, Pate v Robinson, 383 U.S. 375, 378, 387). It is the delay resulting from defendant's determined condition and status as an incapacitated person and, as such, his unfitness to proceed to trial that is exempted from the time limitation. We need not decide the abstract question raised by the dissent (dissenting opn, at 109-110) which would be presented if defendant's status as incompetent had been determined only by Queens County Supreme Court — i.e., whether the period of the subdivision (4) (a) exemption should be curtailed as unreasonable because the Queens County prosecutor was not kept advised of defendant's status and did not move for a new competency determination. Here, defendant's status as incompetent was the subject of a parallel Supreme Court order. There is no question concerning the validity or the effect of the outstanding determination of New York County Supreme Court that defendant was an incapacitated person and remained unfit to proceed until that court's finding of competency on September 24, 1986, and no contention that the resulting period of delay was unreasonable. We hold only, under the unique circumstances of this case where defendant remained an incapacitated person by virtue of the interrelated effect of two orders of New York State Supreme Court, that the period properly exempted under CPL 30.30 (4) (a) brought the total time to be counted against the prosecution to less than 180 days.
We note, moreover, as the People point out, that even if New York County Supreme Court had made its determination of competency as early as July 7, 1986 upon the bare receipt of the reports of defendant's fitness from the examining psychiatrists, without any further proceedings, there would have been more than enough excludable time to bring the total time counted against the prosecution to well under 180 days.
The dissent's proposition that "[i]t is elementary that a judicial finding of incompetency [i.e, the New York County Supreme Court order] is binding only in the proceeding in which it is made" (dissenting opn, at 107), for which it cites no pertinent authority, is clearly contrary to fundamental principles of criminal justice. What the proposition overlooks is that the New York County determination of incompetency had an effect beyond the particular CPL article 730 proceeding in which it was made. The order was by no means merely procedural; it was a substantive factual and legal determination with respect to a specific defendant's mental and emotional capacity made by a court having jurisdiction over the matter after proceedings in which that defendant's capacity was the very issue in dispute between the State and the defendant. Whether the Queens County Supreme Court would have been legally bound to give effect to the New York County order's finding of unfitness as an issue determined by that court or by simply adopting the commonsense conclusion that if a person was legally found to be incompetent in New York County the same person would necessarily be incompetent in Queens County, we need not decide. What is important is that the New York County Supreme Court determination, as long as it remained in effect, would have been a legal and constitutional bar to defendant's prosecution and conviction in Queens County (see, Pate v Robinson, supra, at 378, 387).
Nor can we subscribe to the dissent's notion (dissenting opn, at 108) that if the Queens County District Attorney and Supreme Court had been apprised of defendant's status, they would have been obligated, notwithstanding the effectiveness of the New York County order, to expend the time and resources to pursue their independent and separate CPL article 730 proceedings while the defendant was already in Bellevue Hospital undergoing competency testing by psychiatrists appointed by New York County Supreme Court. Although unnecessary to our decision, it is doubtful at best that the Legislature could have contemplated such an unrealistically rigid interpretation of CPL 30.30 (4) (a). Here, of course, Mid-Hudson never notified the Queens County District Attorney or Supreme Court (see, supra, at 97, n 2) of defendant's discharge to Bellevue for additional testing.
The order should be reversed and a new trial ordered.
Chief Judge WACHTLER and Judges SIMONS and KAYE concur with Judge HANCOCK, JR.; Judge TITONE and BELLACOSA dissent in part and vote to reverse and dismiss the indictments in a separate opinion.
Order reversed, etc.
We vote to reverse and dismiss the indictments because the People's readiness responsibilities under CPL 30.30 have not been satisfied. The majority's rationale with respect to this issue is puzzling and misdirected. Although the trial court's April 10, 1985 commitment order expired on October 11, 1985, the People did nothing to bring defendant to trial until more than a year later, when they finally declared their readiness. The majority nonetheless finds that the timing requirements of CPL 30.30 were not violated, because, in its view, the combined effect of the trial court's "unaltered" finding of incompetency, coupled with a "parallel" finding of incompetency in a different criminal action in New York County, somehow excused the People's protracted unreadiness in this criminal action. The principles that have long governed analysis under CPL 30.30 do not tolerate such laxity.
Defendant was initially arrested in Queens County on December 8, 1983 and held on a felony complaint. After a series of routine pretrial proceedings, defense counsel moved for a competency hearing, with the result that defendant was found to be unfit to proceed and, on April 10, 1985, was committed to the custody of the Department of Mental Hygiene (DMH) for a period of six months. This commitment order was never extended. Nevertheless, the People did nothing further to prosecute the case until September 24, 1986, when they learned from the New York County District Attorney's office that some six months earlier DMH had determined that defendant was fit to proceed and had released him to the custody of New York City Department of Correction. According to the stipulated facts at the CPL 30.30 hearing, the People's inaction was the result of their "custom and policy" of relying on DMH to monitor expiring retention orders and to give them notice whenever a defendant under commitment on a retention order was about to be released. Once the Queens prosecutor learned of defendant's release to the Department of Correction, the Queens case was restored to the trial calendar and, on October 16, 1986, the People formally declared their readiness for trial. The Supreme Court, Queens County, found defendant fit to proceed on November 17, 1986.
Defendant promptly moved for dismissal under CPL 30.30, focusing particularly on two large blocks of pre-readiness time: (1) the period from October 11, 1985 (the date the commitment order expired) to March 24, 1986 (the date defendant, having been found by DMH to be competent, was released to the City Correction Department) and (2) March 24, 1986 to October 16, 1986 (the date the People declared their readiness). The People countered by arguing, among other things, that the April 10, 1985 finding of incompetence effectively tolled the time they had to become ready and that, because there had been no intervening judicial findings in Queens County to the contrary, the entire period from that date to November 17, 1986, the date defendant was formally found competent in Queens County, was "excludable."
In the course of the written and oral argument on the motion, it was disclosed that defendant's competence had been the subject of a parallel proceeding in New York County during much of the two disputed periods. In April of 1985, he had been committed to DMH's custody for a year by a New York County Supreme Court order and, after the expiration of the Queens County commitment, had been retained by DMH pursuant to that order. Moreover, after DMH had determined that defendant was competent (March 4, 1986) and released him (March 24, 1986), New York County Supreme Court conducted further competency proceedings and on September 24, 1986 found him fit to proceed. It is these "other proceedings" which the majority apparently now countenances as the core of its rationale for concluding that the People's readiness responsibilities are excused under CPL 30.30 (4) (a).
Analysis of CPL 30.30 cases involving felony charges generally begins with a recognition of the defendant's burden of showing that more than six months has elapsed between the commencement of the action and the prosecution's declaration of readiness (see, People v Berkowitz, 50 N.Y.2d 333, 349). Once that burden is met, as it indisputably was met here, the People have the burden of establishing that "certain periods within that time should be excluded" (id., at 349; accord, People v Santos, 68 N.Y.2d 859). If the People's burden is not satisfied, dismissal must follow (People v Berkowitz, supra; cf., People v Lomax, 50 N.Y.2d 351).
Significantly, during the course of these proceedings, up to five separate theories have been advanced in an effort to support the People's position. In their initial response to the CPL 30.30 motion, the People relied principally on a claim that the entire disputed period was excludable under CPL 30.30 (3) (c) (i) because defendant's prior parole status had been revoked. When that claim proved factually inaccurate, the People shifted to their alternative position that the entire disputed period should be excluded because, regardless of what had transpired in New York County, the Queens County finding of incompetence was unaffected and continued to be the controlling factor until defendant was declared competent in Queens County on November 17, 1986. Evidently dissatisfied with that approach, the trial court fashioned another theory, holding that defendant could not have been prejudiced by the People's delay because the concurrent finding of incompetence in New York County precluded defendant from arguing that he was, in fact, competent during much of the disputed periods. On defendant's appeal from his conviction, the Appellate Division used yet another theory based on the exclusion provided in CPL 30.30 (4) (c). Now, in its effort to uphold defendant's prosecution, this Court has apparently carved out a new theory that blends the argument the trial court rejected with a variation on the one the trial court adopted based on the existence of an incompetency finding in a different criminal proceeding conducted in a neighboring county. We believe that none of the rationales can rescue the People from their failure to be ready in accordance with the statute's demands.
Although the majority states that its holding is based on "the interrelated effect of two orders of New York State Supreme Court" (majority opn, at 102 [emphasis supplied]), it repeatedly declines to analyze the significance of the Queens County limited six-month commitment order in relation to defendant's CPL 30.30 claim. Thus, notwithstanding its reference to "two orders," the centerpiece of the majority's analysis is the fact that there was an "outstanding determination of New York County Supreme Court that defendant was an incapacitated person and remained unfit to proceed until that court's finding of competency on September 24, 1986" (majority opn, at 102). Based on this fact, the majority invokes CPL 30.30 (4) (a)'s exclusion for "the period during which defendant is incompetent to stand trial." However, nowhere does the majority explain how a determination in New York County, "parallel" or otherwise, can serve to establish the existence of a "period during which defendant [wa]s incompetent to stand trial" in this Queens County action. In fact, the New York County finding of incompetence had no legal significance in the Queens County prosecution currently under review.
A defendant's "incompetence" or "unfitness" to stand trial does not exist in the abstract. Rather, that legal status comes into being only after a formal adjudication conducted pursuant to CPL article 730. Certainly, CPL 30.30 (4) (a)'s reference to the "period during which defendant is incompetent" contemplates only periods of adjudicated incompetency.
It is elementary that a judicial finding of incompetency is binding only in the proceeding in which it is made. Direct authority for that proposition may be found in CPL 730.60 (2), which embodies the principle set forth in Pate v Robinson ( 383 U.S. 375, 378, 387, cited at majority opn, at 102) and provides that "the criminal action pending * * * in the court that issued [the retention or commitment] order is suspended until the superintendent of the institution in which the defendant is confined determines that [the defendant] is no longer an incapacitated person" (emphasis supplied). Even the People in this case unequivocally acknowledged that separate criminal actions require separate CPL article 730 proceedings when they adopted the position that "it was possible to be found fit in New York and not fit in Queens." Further, the fact that the trial court in this Queens County proceeding found it necessary to conduct its own CPL article 730 inquiry once the matter was recalendared, notwithstanding the existence of a prior "parallel" completed inquiry in New York County, demonstrates that the New York County adjudication, which according to the majority remained in effect from April of 1985 until at least July of 1986 (majority opn, at 102, and n 4), was not binding in the Queens County action.
Despite the clear language of CPL 730.60 (2) limiting the effective reach of a commitment order, the majority makes the rather startling assertion that under "fundamental principles of criminal justice" the New York County incompetency determination in this case "had an effect beyond the particular CPL article 730 [proceeding] in which it was made" (majority opn, at 103). However, it never explains precisely what that effect was and even fails to specify what "fundamental" legal principle it is alluding to. To the extent that the majority implies that the New York County determination could be legally binding in the Queens County action either as "an issue determined by that court" or by virtue of some rule requiring adoption of a "commonsense conclusion" (majority opn, at 103), the majority's analysis is thoroughly unsupported. Although the New York County court in which the determination was made and the Queens County court in which the criminal action against defendant was pending are both units of the Supreme Court, a State-wide entity, there is no rule of reciprocity in this State and any suggestion that a finding in one criminal court is binding in the other without further judicial proceedings on the question is inconsistent with the basic organization of our court system.
Thus, the period during which the New York County finding of incompetence was extant was not a "period during which defendant [wa]s incompetent" in the Queens County action as that term is used in CPL 30.30 (4) (a). Indeed, the flaw in the majority's conclusion to the contrary is evident from its own statement that "the New York County Supreme Court determination, as long as it remained in effect, would have been a legal and constitutional bar to defendant's prosecution and conviction in Queens County" (majority opn, at 103 [emphasis supplied]). If anything, it would have been defendant's actual incompetence, not a judicial "determination" of incompetence, that operated as a temporary bar to prosecution. The "determination" on which the majority relies was merely a formal adjudication that at a particular point in time defendant was incompetent. It had no other independent legal significance, and it certainly did not establish defendant's ongoing actual incompetence in the transcendent sense that the majority suggests. Accordingly, the New York County incompetency determination did not excuse the Queens County District Attorney's failure to become ready in a timely manner after DMH's administrative determination that defendant was competent to proceed.
To the extent that the majority's holding rests on the unspoken premise that any steps taken to become trial ready in Queens County would have been futile, its analysis is plainly misinformed. Had the Queens County District Attorney taken the necessary steps to revive the prosecution when defendant was released from DMH custody in March of 1986, the Queens County Supreme Court could have immediately directed further psychiatric examinations, as the New York County Supreme Court did; alternatively, arrangements could have been made, with the consent of the parties, to coordinate the CPL article 730 proceedings in both counties for the sake of speed and judicial economy. In any event, the required CPL article 730 proceedings would have gone forward and the case could then have proceeded to a prompt disposition. The circumstance that prevented the proceedings from unfolding in this orderly and timely manner was not the extant New York County incompetency determination, which was in the process of being reviewed during much of the period in question; rather it was the laxity of the Queens County District Attorney's office.
Similarly, to the extent that the majority's holding rests on the existence of the extant Queens County finding of incompetency (see, majority opn, at 102, 102-103 ["period properly exempted under CPL 30.30 (4) (a)" "where defendant remained an incapacitated person by virtue of the interrelated effect of two orders of New York State Supreme Court"; emphasis supplied]), its analysis does not withstand scrutiny. Even if, as the majority asserts, that finding remained in effect until November 17, 1986, when it was judicially determined in Queens County that defendant was fit to proceed, the People could not claim the benefit of the exclusion because of the statutory requirement that any period excluded on this ground be a "reasonable" one.
Here, the only reason that the trial court's April 10, 1985 finding of incompetence even theoretically remained "in effect" for so long was that the People failed to take any steps of their own to keep track of their criminal action and to place the matter back on the trial court's calendar so that the competency question could be reviewed. This failure was not the product of any genuine need of the People for additional time to prepare. Nor was it the product of a reasoned choice by the People to forgo pursuing the case on the theory that further action would be futile in light of a concurrent incompetency finding in a neighboring county (cf., People v Bratton, 65 N.Y.2d 675). Rather, the delay was attributable solely to the People's negligent failure to follow up on their case after the court's commitment order had expired. Indeed, accepting the proposition suggested by the majority's analysis would enable a District Attorney's office indefinitely to extend its own excludable time by simply failing to take the action necessary to change the case's status quo. Surely, that is not, and cannot be, the law.
The unreasonableness of the period of delay that occurred while the Queens County incompetency finding was outstanding also becomes evident when the conduct of the Queens County District Attorney's office is compared to that of the New York County District Attorney's office. When DMH determined on March 4, 1986 that defendant was no longer unfit, the latter promptly placed the case back on the calendar, prompting further judicial action and, ultimately, a final disposition of the New York County charges by September 24, 1986. If it was feasible for the New York County District Attorney to have taken such steps, it was also both feasible and reasonable for his Queens County counterpart to do so. It is no excuse that "Mid-Hudson never notified the Queens County District Attorney or Supreme Court * * * of defendant's discharge to Bellevue" (majority opn, at 103, n 5). The Queens County District Attorney's failure to take similar steps at any point after the expiration of the Queens County commitment order, or at least after DMH's March 4, 1986 determination of competence, belies any claim the People might now make as to the "reasonableness" of the entire 19-month period during which the Queens incompetency finding was theoretically "in effect."
It is evident from the foregoing that no theory supports the conclusion that the People satisfied their burden of showing the existence of sufficient "excludable" time. Moreover, there is no sound reason for the Court to strain, contrary to the letter, spirit and purpose of CPL 30.30, to uphold this belated prosecution. The prosecutorial inaction in issue falls squarely within the range of conduct that the Legislature meant to regulate when it enacted CPL 30.30 and provided for mandatory dismissals in cases delayed because of prosecutorial indifference (see generally, People v Anderson, 66 N.Y.2d 529; People v Worley, 66 N.Y.2d 523, 527; People v Brothers, 50 N.Y.2d 413). The delay in this case was directly traceable to a decision by the Queens County District Attorney's office to abdicate its responsibility for monitoring cases involving incompetent defendants and to rely instead on DMH, a State agency that is neither principally concerned with law enforcement nor statutorily charged with CPL 30.30 readiness responsibilities. A prosecutor may not so easily slough off its statutory duty. Having made its decision, the People created a risk that some of the prosecutions for which it was responsible would "fall through the cracks" and, as a result, would languish unnoticed while the deadlines carefully crafted by the Legislature slipped by. It was precisely this type of institutionalized indifference that CPL 30.30 was enacted to combat. Accordingly, we dissent from the majority's decision to remit for a new trial and would instead dismiss the indictment.