The PEOPLE & c., Respondent, v. Jose GUEVARA, Appellant.
The order of the Appellate Division should be reversed and a new trial ordered.
Defendant Jose Guevara was convicted by jury verdict of one count of manslaughter in the first degree (Penal Law § 125.20). After defendant provided timely notice that he intended to present psychiatric evidence at trial, he was twice interviewed by a clinical psychologist engaged by the People (see CPL 250.10, ). Although defense counsel was present at the first examination, the expert denied defense counsel admittance to the second examination. Over defense counsel's objection that defendant's right to counsel had been violated, the expert's testimony was admitted at trial. On defendant's appeal, the Appellate Division affirmed, holding that defendant's constitutional right to counsel had been violated but that the error was harmless (189 A.D.3d 455, 136 N.Y.S.3d 281 [1st Dept. 2020]). We now reverse because we conclude that the error was not harmless.
In Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 318 N.Y.S.2d 705, 267 N.E.2d 452 (1971), we held that defendants' Sixth Amendment right to counsel applies at pre-trial psychiatric examinations “to make more effective [a defendant's] basic right of cross-examination” (id. at 444, 318 N.Y.S.2d 705, 267 N.E.2d 452).1 In Lee, we cited to United States v. Wade 's, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) definition of a critical stage of the prosecution as “ ‘any stage of the prosecution, formal or informal, in court or out, where’ ‘the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself’ ” (27 N.Y.2d 432, 444, 318 N.Y.S.2d 705, 267 N.E.2d 452 , quoting Wade, 388 U.S. at 227, 87 S.Ct. 1926). We thus held that pretrial psychiatric examinations are a critical stage of the prosecution.
As the Appellate Division recognized, our decision in Lee controls here (27 N.Y.2d at 444, 318 N.Y.S.2d 705, 267 N.E.2d 452). To determine whether the error requires a new trial, we assess the error under the harmless error standard that applies to violations of constitutional rights (People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ). The People—not the defendant—bear the burden of showing that “there was no reasonable possibility that the trial court's admission” of that part of the expert's testimony based on the uncounseled examination “affected the jury's verdict” (People v. Ellis, 34 N.Y.3d 1092, 1093, 116 N.Y.S.3d 654, 139 N.E.3d 1234 ; see People v. Schaeffer, 56 N.Y.2d 448, 456, 452 N.Y.S.2d 561, 438 N.E.2d 94 ). Under the circumstances of this case, the expert's testimony at trial was based in part on the examination undertaken in violation of defendant's constitutional right to counsel, and we cannot say that the error was harmless (see People v. Cerami, 33 N.Y.2d 243, 248, 351 N.Y.S.2d 681, 306 N.E.2d 799 ).2
Defendant's argument seeking suppression of statements he made to the police is without merit. In light of our reversal, we need not reach the defendant's remaining arguments.
On review of submissions pursuant to section 500.11 of the Rules, order reversed and a new trial ordered, in a memorandum.
1. As a result of a review of the insanity defense conducted by the Law Review Commission at the request of Governor Carey, the legislature codified the holding in Lee in CPL 250.10(3) (Governor's Approval Mem, Bill Jacket, L 1980, ch 548 at 4). The Commission concluded that the “procedures and rules set forth in Lee carefully balance and protect the interests of both society and defendants” (1980 Rep of Law Rev Commn on Defense of Insanity in New York State at 60–61).
2. People v. Perkins, 166 A.D.2d 737, 562 N.Y.S.2d 244 (3d Dept. 1990), on which the Appellate Division relied, is inapposite: it concerned an examination to determine the defendant's competency to stand trial pursuant to CPL article 730, not evidence to be offered at trial to rebut a psychiatric defense (see People v. Wicks, 76 N.Y.2d 128, 133, 556 N.Y.S.2d 970, 556 N.E.2d 409 ).
Chief Judge DiFiore and Judges Rivera, Fahey, Garcia, Wilson, Singas and Cannataro concur.