
    The People of the State of New York, Respondent, v Herbert D. Edney, Appellant.
    Argued May 3, 1976;
    decided June 8, 1976
    
      Eugene Murphy, James J. McDonough and Matthew Muraskin for appellant.
    I. The Huntley hearing was improperly conducted while defendant was incompetent. (People v Haynes, 30 AD2d 705; People v Hill, 9 AD2d 451, 8 NY2d 935; People v Blando, 23 AD2d 761; People v Moore, 21 AD2d 860; Pate v Robinson, 383 US 375.) II. It was a violation of the attorney-client privilege to permit Dr. Schwartz to testify. 
      (Hurlburt v Hurlburt, 128 NY 420; United States v Kovel, 296 F2d 918; United States v Alvarez, 519 F2d 1036; People v AlKanani, 33 NY2d 260; People v Dudley, 24 NY2d 410; People v Daghita, 299 NY 194.) III. It was reversible error to permit the psychiatrists to give opinions outside their field of competence. (People v Creasy, 236 NY 205; People v Higgins, 5 NY2d 607; People v Barber, 115 NY 475; People v Graydon, 43 AD2d 842; People v Cerami, 33 NY2d 243; People v Keough, 276 NY 141; People v Wood, 12 NY2d 69; People v Horton, 308 NY 1.) IV. Appellant’s guilt of the two counts of kidnapping was not proved beyond a reasonable doubt. V. Lesser included offenses should have been submitted under the second and third counts. (People v Battle, 22 NY2d 323; People v Richardson, 36 AD2d 25; People v Moran, 246 NY 100; People v Asan, 22 NY2d 526; People v Mussenden, 308 NY 558.)
    
      Denis Dillon, District Attorney (Robert N Zausmer and William C. Donnino of counsel), for respondent.
    I. The attorney-client privilege did not bar reception of Dr. Daniel Schwartz’ opinion concerning defendant’s mental state at the time of the murder. (Matter of Lee v County Ct. of Erie County, 27 NY2d 432, 404 US 823; People v Silver, 33 NY2d 475; People v Al-Kanani, 33 NY2d 260, 417 US 916; Koump v Smith, 25 NY2d 287; People v Esposito, 287 NY 389; People v Stone, 35 NY2d 69; People v Shapiro, 308 NY 453; People ex rel. Vogelstein v Warden of County Jail of County of N. Y., 150 Misc 714, 242 App Div 611; Matter of Horowitz, 482 F2d 72; People v Damon, 24 NY2d 256.) II. The court did not abuse its discretion in determining that defendant was competent to proceed at the Huntley hearing. (People v Laudati, 35 NY2d 696; People v Hill, 9 AD2d 451, 8 NY2d 935; People v Moore, 21 AD2d 860; United States ex rel. DeStefano v Woods, 382 F2d 557, 392 US 631; Drope v Missouri, 420 US 162; People v Leventis, 29 AD2d 924; People v Boodie, 26 NY2d 779; People v Benvenuto, 19 AD2d 561; People v Mathews, 42 AD2d 1042; People v Marcus, 261 NY 268.) III. Psychiatric testimony offered at the trial did not invade the province of the jury. (People v Higgins, 5 NY2d 607; People v Cerami, 33 NY2d 243; People v Keough, 276 NY 141; People v Stone, 35 NY2d 69; People v Sugden, 35 NY2d 453; People v Buthy, 38 AD2d 10.) IV. Defendant’s guilt of kidnapping was established beyond a reasonable doubt and there was no error with respect to charging lesser included offenses under those counts. (People v La Marca, 3 NY2d 452, 355 US 920; People v 
      
      Stanfield, 36 NY2d 467; People v Mussenden, 308 NY 558; People v Shuman, 37 NY2d 302.)
   Gabrielli, J.

Defendant was charged with kidnapping and the brutal killing of the eight-year-old daughter of his former girlfriend. He interposed the defense of insanity.

The jury found defendant guilty, as charged, of manslaughter, first degree and kidnapping in the first and second degrees. He was sentenced to a term of 25 years to life on the first degree kidnapping charge and to concurrent terms of up to 25 years on the other charges. The Appellate Division unanimously affirmed.

The critical and principal issue is whether the testimony of a psychiatrist, who had examined defendant prior to trial at the request of his attorney, was admissible over objections that the physician-patient and attorney-client privilege acted to bar its admission.

At trial, the prosecution showed that late in the afternoon on July 24, 1968, defendant grabbed Lisa Washington, the victim, off the street where she was playing with friends, and forcibly pushed her into a taxicab. At approximately 8:30 p.m., Lisa’s aunt, with whom she was residing, received a call from defendant who stated that "If you don’t get 'C’ [the nickname of Lisa’s mother] on the phone in the next couple of hours, I am going to rape and kill Lisa”. A barmaid testified that defendant and a young girl were in the Nu-Way Lounge at about 9:30 p.m. and that she observed defendant leave the tavern with the girl, walk around a corner toward the back of the building, and return a short while later without her. Less than an hour later, police officers, responding to a call by a woman who had reported a disturbance in her backyard which adjoined the rear of the Nu-Way Lounge, found Lisa’s lifeless body. She had been stabbed 11 times. The police questioned persons in the bar and learned of defendant’s presence in the bar earlier in the evening with a little girl.

Defendant was located at his father’s home early the next morning and taken into custody. As he was leaving with the officers, he was asked by his father whether he had "hurt that little child”, to which he replied "I’m sorry, I’m sorry”. Granules of dirt taken from defendant’s trousers confirmed that defendant had been in the area behind the Nu-Way Lounge.

Following his arrest, and after receiving the standard preinterrogation admonitions (Miranda v Arizona, 384 US 436), defendant volunteered to a detective that he had been in the Nu-Way Lounge that evening, that he had been hearing voices which told him that God wanted Lisa, and that he might have killed Lisa but he was not sure. Taking the witness stand in his own defense, defendant testified that on the day in question, he had drunk large quantities of alcohol, had been smoking marijuana cigarettes, and that sometime after 9:00 p.m., he and Lisa had left the Nu-Way Lounge to go to his father’s place; that he might have killed Lisa but he was not sure he had done so. He recalled walking to a cab across the street from the bar but could remember no more. He explained that he regained consciousness under a tree near his father’s home and that he walked inside and blacked out; the next thing he was able to remember was someone pounding on him to wake up because the police were there.

A psychiatrist called by the defense testified that defendant suffered from paranoid schizophrenia of mild severity and that the condition was of long standing. It was his opinion that defendant was mentally ill to such an extent that he was unaware of the nature and quality of his act and did not know that his act was wrong.

In rebuttal, the prosecution called Dr. Daniel Schwartz, a psychiatrist, who originally examined defendant at the behest of defendant’s attorney, who was not present during the examination. The defense unsuccessfully objected to his testifying on the ground that the attorney-client and physician-patient privileges barred his testimony. Dr. Schwartz described defendant as having an alcoholic psychosis which occasionally manifested itself through hallucinations and delusions; however, he found no evidence of an underlying disease or defect. It was his opinion that at the time of the murder defendant knew and appreciated the nature of his conduct and knew that such conduct was wrong.

Another rebuttal psychiatrist, who had independently examined the defendant for the prosecution, supported the conclusions of Dr. Schwartz that defendant knew and appreciated the nature of his conduct and that such conduct was wrong.

Two other psychiatrists, produced by the defense as surrebuttal witnesses, each testified that he was unable to form an opinion as to whether defendant knew or appreciated the nature of his acts, or whether such acts were wrong, although they did agree that defendant had some form of mental disease.

People v Al-Kanani (33 NY2d 260) is dispositive of the physician-patient privilege claim. There we held (pp 264-265):

"that where insanity is asserted as a defense and * * * the defendant offers evidence tending to show his insanity in support of this plea, a complete waiver is effected, and the prosecution is then permitted to call psychiatric experts to testify regarding his sanity even though they may have treated the defendant (cf. People v. Carfora, 25 N Y 2d 972). When the patient first fully discloses the evidence of his affliction, it is he who has given the public the full details of his case, thereby disclosing the secrets which the statute was designed to protect, thus creating a waiver removing it from the operation of the statute (Capron v. Douglass, 193 N. Y. 11; Koump v. Smith, 25 N Y 2d 287; Davis v. Davis, 1 A D 2d 675; Waiver of Privilege As Regards One Physician As A Waiver As To Other Physicians, Ann., 5 ALR 3d 1244, 1247-1251); and once the privilege is thus waived, there is nothing left to protect against for once the revelation is made by the patient there is nothing further to disclose 'for when a secret is out it is out for all time and cannot be caught again like a bird and put back in its cage. * * * The legislature did not intend to continue the privilege when there was no reason for its continuance and it would simply be an obstruction to public justice’ (People v. Bloom 193 N. Y. 1, 10)”.

Our holding in the case now before us comports with this rationale and is but a logical extension of our determination in Al-Kanani.

Equally unavailing to defendant is the claim that the attorney-client privilege bars admission of Dr. Schwartz’ testimony. Essentially, defendant relies on decisions in other jurisdictions (United States v Alvarez, 519 F2d 1036; City & County of San Francisco v Superior Ct. of City & County of San Francisco, 37 Cal 2d 227; Lindsay v Lipson, 367 Mich 1; and State v Kociolek, 23 NJ 400; but see Friedenthal, Discovery and Use of an Adverse Party’s Expert Information, 14 Stan L Rev 455, 463-465) which have excluded such testimony apparently because a psychiatrist would inevitably be required to reveal a defendant’s statements to him to justify his opinion and because a contrary rule would deter attorneys from freely seeking sound professional advice as to the soundness of an insanity plea. We do not find the reasoning of these cases compelling and, accordingly, do not follow them. Rather, we think the better rationale underlies the Al-Kanani rule that a plea of innocence by reason of insanity constitutes a complete and effective waiver by the defendant of any claim of privilege.

A defendant who seeks to introduce psychiatric testimony in support of his insanity plea may be required to disclose prior to trial the underlying basis of his alleged affliction to a prosecution psychiatrist (Matter of Lee v County Ct. of Erie County, 27 NY2d 432, 442, cert den 404 US 823; People v AlKanani, supra; cf. Koump v Smith, 25 NY2d 287). Hence, where, as here, a defendant reveals to the prosecution the very facts which would be secreted by the exercise of the privilege, reason does not compel the exclusion of expert testimony based on such facts, or cross-examination concerning the grounds for opinions based thereon. It follows that no harm accrues to the defense from seeking pretrial psychiatric advice where an insanity plea is actually entered, for in such circumstances, the underlying factual basis will be revealed to the prosecution psychiatrist. Conversely, were the defendant not to enter an insanity plea, no physician-patient waiver would occur and any information divulged to the psychiatrist would remain privileged. There is, therefore, no deterrent to seeking expert psychiatric advice for, in one instance, there will be disclosure to the prosecution in any event and, in the other, disclosure will never occur. In short, no reason appears why a criminal defendant who puts his sanity in issue should be permitted to thwart the introduction of testimony from a material witness who may be called at trial by invoking the attorney-client privilege anymore than he should be able to do so by invoking the physician-patient privilege.

This is not to say, however, that an attorney cannot consult a psychiatrist in order to obtain advice concerning the efficacy of an insanity plea or, for that matter, any trial strategy, without fear of later courtroom disclosure. The product of such a consultation is protected, of course, by the work product doctrine (see CPLR 3101). However, that doctrine affords protection only to facts and observations disclosed by the attorney. Thus, it is the information and observations of the attorney that are conveyed to the expert which may thus be subject to trial exclusion. The work product doctrine does not operate to insulate other disclosed information from public exposure.

It is significant that the underlying purpose of the attorney-client privilege would not be diminished by the admission of the testimony of Dr. Schwartz. The privilege is grounded in the salutary policy of encouraging "persons needing professional advice to disclose freely the facts in reference to which they seek advice, without fear that such facts will be made public to their disgrace or detriment by their attorney” (Hurlburt v Hurlburt, 128 NY 420, 424; see 8 Wigmore, Evidence [McNaughton Rev], § 2291; Richardson, Evidence [10th ed], § 410; 5 Weinstein-Korn-Miller, NY Civ Prac, par 4503.01; Radin, The Privilege of Confidential Communication Between Lawyer and Client, 16 Cal L Rev 487). That policy is not harmed, however, by the admission of evidence which, in any event, in these circumstances would be available to the prosecution. Indeed, with respect to the testimony of Dr. Schwartz, it is readily apparent that the traditional and statutory requirements of an attorney-client relationship were simply not established (CPLR 4503, subd [a]). We hold, therefore, that the privilege was inapplicable.

We find no merit in defendant’s other contentions.

Accordingly, the order of the Appellate Division should be affirmed.

Fuchsberg, J. (dissenting).

In my view the admission of the testimony of Dr. Daniel Schwartz, the psychiatrist who examined the defendant at the behest of defendant’s counsel for the purpose of enabling the latter to explore the defenses available to his client, was serious and fundamental error.

There are few matters as important to the preservation of a viable and equal system of justice as is the inviolability of the attorney-client privilege—a matter clearly having constitutional overtones (cf. Hoffa v United States, 385 US 293, 304-309; People v Pobliner, 32 NY2d 356, 363-365, rehearing den 33 NY2d 657, cert den 416 US 905). It would become a sterile privilege were it to be largely limited simply to verbal or written communications between clients and their attorneys. Especially in today’s world, where an attorney’s conscientious pursuit of a client’s interests so often mandates his resort to medical, psychological, scientific or other specialized sources of knowledge so that he may intelligently advise and represent his client, whether as to the defenses that may be available to a client defendant in a criminal case, as here, or otherwise, the privilege, to be effective, must extend to the consultations the attorney undertakes for that purpose.

That is precisely what happened here. The defendant’s examination by Dr. Schwartz was for such purpose and such purpose alone. It was not for treatment. The defendant’s personal exposure to Dr. Schwartz was for all practical purposes but an extension of his exposure to his attorney for the ascertainment of facts relevant to his defense, all the more so where insanity was a crucial issue.

True it is that New York courts have never directly had the occasion to pass on this question, but all other Federal and State courts which have done so have recognized the application of the attorney-client privilege in almost identical factual circumstances. That includes the cases cited to that effect by the majority itself (United States v Alvarez, 519 F2d 1036; City & County of San Francisco v Superior Ct. of City and County of San Francisco, 37 Cal 2d 227 [Traynor, J.]; Lindsay v Lipson, 367 Mich 1; State v Kociolek, 23 NJ 400) and others (People v Lines, 13 Cal 3d 500; People v Hilliker, 29 Mich App 543; cf. United States v Kovel, 296 F2d 918 [Friendly, J.]). Significantly, in not one of them was there as much as a single dissent. When one considers that the scope of the attorney-client privilege is a subject which receives frequent judicial consideration, it seems fair to conclude from the unanimity in the cases cited that the courts of those jurisdictions which have not written on the subject have failed to do so only because the evidentiary rule expounded by the cases appeared beyond dispute.

People v Al-Kanani (33 NY2d 260) does not detract from the proposition at all. It deals simply with the waiver of a physician-patient privilege that arose from treatment in a case where insanity was asserted as a defense, a principle not unlike that applicable to other instances of the waiver of that privilege (e.g., Capron v Douglass, 193 NY 11 [malpractice case]; Steinberg v New York Life Ins. Co., 263 NY 45 [action upon policy of indemnity insurance]; Apter v Home Life Ins. Co., 266 NY 333 [action to restrain cancellation of life insurance policy]). That is not to be confused with communications to physicians within the compass of and as an adjunct to the attorney-client privilege.

Therefore, I dissent and vote to grant a new trial.

Chief Judge Breitel and Judges Jasen, Jones, Wachtler and Cooke concur with Judge Gabrielli; Judge Fuchsberg dissents and votes to reverse in a separate opinion.

Order affirmed.  