THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ROBERT FULLEN JR DEFENDANT APPELLANT (2015)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  We previously held this case, reserved decision, and remitted the matter to Supreme Court to conduct a reconstruction hearing with respect to the victim's missing psychiatric records (People v. Fullen, 118 AD3d 1297).  Upon remittal, the prosecutor prepared a new subpoena, and the records were again given to the court, which forwarded them to this Court.  Upon our review of those records, we conclude that the court did not abuse its discretion in denying defendant access to them (see People v. Tirado, 109 AD3d 688, 688–689, lv denied 22 NY3d 959, reconsideration denied 22 NY3d 1091, cert denied _ US_, 135 S Ct 183;  People v. Toledo, 270 A.D.2d 805, 806, lv denied 95 N.Y.2d 858;  see also People v. Bird, 284 A.D.2d 339, 339, lv denied 96 N.Y.2d 916).  “ ‘[C]onfidential psychiatric records should be disclosed only when their confidentiality is significantly outweighed by the interests of justice’ “ (Tirado, 109 AD3d at 688).  Here, defendant was aware that the victim was hospitalized for an unspecified mental health issue in July 2007, that she suffered from depression, and that she was prescribed medication around the time of the criminal incident herein.  Defendant was able to cross-examine both the victim and her mother regarding those matters (see Toledo, 270 A.D.2d at 806;  People v. Arredondo, 226 A.D.2d 322, 322, lv denied 88 N.Y.2d 964).  In addition, we agree with the court that there was nothing in the records that was relevant to the victim's credibility or competency to testify (see Toledo, 270 A.D.2d at 806;  see generally People v. Dudley, 167 A.D.2d 317, 321).  Inasmuch as defendant's need for the records did not outweigh the need to preserve their confidentiality, we reject defendant's contention that the court committed reversible error in denying him access to those records (see Toledo, 270 A.D.2d at 806).  Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).

Frances E. Cafarell

Clerk of the Court