People v. Dobbs , 549 N.Y.S.2d 283 ( 1989 )

Balio and Davis, JJ.

(dissenting). We respectfully dissent and would affirm the judgment of conviction. The hearing court’s denial of defendant’s request for an adjournment to secure his own "psychiatric competency report” and for the opportunity to offer expert testimony at the competency hearing did not deprive defendant of his constitutional right to due process of law. The two court-appointed psychiatrists testified that defendant was not incapacitated and was fit to proceed.

Under the circumstances of this case, and contrary to the view of the majority, we do not construe People v Christopher (65 NY2d 417, rearg denied 65 NY2d 1054) to hold that a defendant’s bare request for an examination by his own psychiatrist mandates that his request be granted. In our view, to demonstrate entitlement to the requested psychiatric examination, defendant must unequivocally indicate that the examination is for the purpose of contesting a determination made pursuant to CPL 730.30 (2) that he is competent to stand trial. Here, the reason advanced for the request was defense counsel’s perception of a "vast discrepancy between Dr. Joseph and Rhee’s report”. Additionally, defense counsel stated "[w]e just want assurance that the family has done everything conceivably possible on his behalf to make sure that when he does undergo this trial ordeal that he must, that he is in the best frame of mind possible”.

Here, counsel never contended that, notwithstanding the fitness determination made by the two court-appointed psychiatrists, defendant was not fit to proceed. We conclude that defendant’s articulated reasons for the examination did not, without more, entitle him to an adjournment to be examined by his own psychiatrist (see, People v Christopher, supra, at 422, 424, n 4).

In our view, defendant’s remaining contentions are lacking in merit. (Appeal from judgment of Supreme Court, Erie County, Easier, J. — rmanslaughter, second degree.) Present— Callahan, J. P., Denman, Pine, Balio and Davis, JJ.