IN RE: The STATE of New York (2009)

Order, Supreme Court, Bronx County (Michael A. Gross, J.), entered October 28, 2008, which, sua sponte, reconsidered an order, same court and Justice, entered October 22, 2008, inter alia, granting petitioner State of New York's motion to videotape any psychiatric examination of respondent conducted in connection with this civil management proceeding pursuant to Mental Hygiene Law article 10, and adhered to the prior order, unanimously reversed, on the law, without costs, and the motion denied.   Appeal from the October 22, 2008 order unanimously dismissed, without costs, as subsumed in the appeal from the October 28, 2008 order.

The State does not have a right to videotape Mental Hygiene Law (MHL) § 10.06 psychiatric examinations (Matter of State of New York v. R.H., 21 Misc.3d 1127(A), 2008 N.Y. Slip Op. 52249[U], 2008 WL 4837632 [Nov 5, 2008];  Matter of State of New York v. Rosado, 20 Misc.3d 468, 862 N.Y.S.2d 770 [2008] ).  Article 10 contains no express provision authorizing such videotaping, unlike other contexts in which litigants are given the right to videotape (see Matter of Charles S., 60 A.D.3d 954, 875 N.Y.S.2d 263 [2nd Dept.2009];  22 NYCRR 202.15, implementing CPLR 3113[b] [civil depositions];  Family Court Act § 1038[c] [psychiatric examinations in certain child protective proceedings] ).   Indeed, by limiting discovery of section 10.06 examinations to the production of the examiners' reports (MHL 10.06[d],[e] ), and leaving the methodology of examinations up to the examiner (MHL 10.08[b] ), article 10 indicates that the Legislature intended that the courts not have the discretion to order the videotaping of section 10.06 examinations.   Although in the context of criminal cases in which a psychiatric defense is advanced, the Court of Appeals has held that fundamental fairness requires that the State have a reciprocal right to observe a defendant's psychiatric examination for the purposes of trial preparation (Matter of Lee v. County Court of Erie County, 27 N.Y.2d 432, 444, 318 N.Y.S.2d 705, 267 N.E.2d 452 [1971], cert. denied 404 U.S. 823, 92 S.Ct. 46, 30 L.Ed.2d 50 [1971];  see also CPL 250.10[3] ), and although the same fairness concerns are implicated in article 10 proceedings, they are mitigated by the State's right to examine the respondent before the latter's right to counsel attaches (MHL 10.05[e], 10.06[c] ), to subject him or her to a rebuttal examination after it reviews the report of his or her examiner (MHL 10.06[d] ), and to have access to any relevant medical, clinical or other information generated by any State agency, office or department (MHL 10.08[c] ).  We have considered the State's other arguments and find them unavailing.