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Defendant was charged with Burglary,

Defendant was charged with Burglary, Petit Larceny and Criminal Mischief arising from alleged incidents in complainant’s apartment on two separate occasions. After a preliminary hearing before another judge, the felony charges were reduced and the matter held for trial. Defendant now moves for discovery of complainant’s medical records and for a psychiatric examination of the complainant.

A Bronx County Injury lawyer said that the complainant is a fifty four year old disabled veteran. At the preliminary hearing, he testified that he had suffered brain injury during World War II. As he put it, “. . . the rockets came and messed up my brains and paralyzed me.” He also testified that he could not remember certain things such as the dates of the alleged incidents or how long he had lived in his present apartment; that he could not think “too good” and gets “mixed up”; and that he is not able to follow questions “too fast.”

On the whole, his testimony was confused, frequently tangential, and sometimes contradictory, although a picture of the underlying incidents did emerge. On the day in question, he answered a knock on his door, thinking it was the television repairman whom he had called for earlier. Instead, several people pushed him aside and came into his apartment whereupon they stole his food, money and phonograph records.

He changed his testimony several times as to how many people were involved and who they were. He became confused also about how they had entered the apartment, sometimes saying they entered through the door and at other times through the window, and finally stated that he could not remember.

Due process considerations require the disclosure to an accused of evidence favorable to him which is material to guilt or punishment. It is recognized that “the jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence; and accordingly, courts have required disclosure of evidence tending to affect the credibility of a particular witness.

Evidence of the mental illness of a witness is a fact that a jury is entitled to know so that it may “assess and evaluate the testimony given by him and not accept it as the statement of a ‘normal’ individual,” This is so because such evidence bears “not just upon the witness’ general trustworthiness” of the complainant but also upon “the reliability of his specific testimony,”

The post conviction discovery of evidence of a witness’ mental condition has been sufficient to order a new trial in several instances. In a case, the People had refused defendant’s request for the criminal record of the key prosecution witness which would have led to evidence of the witness’ mental commitment for a prior ongoing mental condition. The Injury Court held that the suppression was a violation of due process under the case, because the witness, who was uncontradicted, must have played a crucial role in the jury’s verdict and, therefore, evidence of his aberrant mental condition would have been material on the question of the defendant’s guilt.

The major issue in this case involves the reliability of the complainant who is the sole eyewitness to the alleged crime. The preliminary hearing illustrates the complainant’s difficulty in recollecting events and communicating to others his perceptions and observations of those events. He claims this difficulty is due to brain damage. The only information that defendants now have is that complainant was once hospitalized and has been the subject of psychiatric evaluations.

Where, as here, there is knowledge of a longstanding, ongoing mental condition of a complainant who is the sole eyewitness to the crime, and where such condition may affect the accuracy, perception and comprehension of his testimony, evidence must be disclosed to the defendants concerning such a condition.

The People argue that since this is a pre-trial motion and the cases cited above involved post-trial motions for a new trial on the ground that the conviction resulted from the testimony of a witness whose mental state is later discovered to be questionable, there are no grounds for disclosure at this time. That argument cannot succeed. The basis for reversal was that the evidence was so material to the issue of guilt or innocence that it would play a part in the jury’s consideration.

In ordering the disclosure, this Court is merely applying the established principle of admitting extrinsic evidence of a witness’ mental defect or deficiency to impeach his credibility, including the admission of medical hospital records.

Nor can disclosure be precluded by a claim of privilege. The statutory rule prohibiting the disclosure of communications between a patient and his physician is subject to waiver, CPLR § 4504, CPL § 60.10. A patient may waive his privilege either expressly by testifying in detail as to his injury or illness; or impliedly by conduct. The complainant has already testified that he suffers from brain damage which impairs his thinking and communication abilities. This was a voluntary statement and qualifies as a waiver regarding further inquiry into his mental condition.

In addition, the state’s policy interest in protecting the confidentiality of the physician-patient relationship must yield to the mandate of constitutional due process considerations when the need for disclosure is present.

Accordingly, the defendant’s motion for discovery of the medical records is granted.

Here in Stephen Bilkis and Associates, we have Bronx County Personal Injury Lawyers who will file the claims for damages against the persons responsible to your injury. In case of injuries by reason of vehicular accidents, we also have Bronx County Car Accident Attorneys.

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