
    The People of the State of New York, Respondent, v. Domingo Gonzalez, Appellant.
    Argued April 5, 1967;
    decided July 7, 1967.
    
      Robert A. Meister and Anthony F. Marra for appellant.
    I. The trial court’s failure to conduct a hearing to determine if appellant was mentally competent to stand trial rendered his conviction and sentencing an unconstitutional deprivation of liberty without due process of law. (People v. Smyth, 3 N Y 2d 184; People v. Blando, 23 A D 2d 761; People v. Lluveras, 19 A D 2d 525; Pate v. Robinson, 383 U. S. 375; Hoyt v. Adee, 3 Lans. 173; Matter of Widmayer, 74 App. Div. 336; Gunther v. United States, 215 F. 2d 493; Bush v. McCollum, 231 F. Supp. 560, 344 F. 2d 672; People v. Rivera, 25 A D 2d 725; People v. Esposito, 287 N. Y. 389; People v. Pugach, 33 Misc 2d 938; People v. Boundy, 10 N Y 2d 518; Hansford v. United States, 365 F. 2d 920; United, States v. Davis, 365 F. 2d 251.) II. Appellant was convicted in violation of his constitutional right to counsel. Appellant was not informed of his right to court-appointed counsel before he waived a preliminary hearing. (People v. White, 18 Misc 2d 56; White v. Maryland, 373 U. S. 59; Gideon v. Wainwright, 372 U. S. 335; Hamilton v. Alabama, 368 U. S. 52; Knight v. Balkcom, 363 F. 2d 221; People v. Brabson, 9 N Y 2d 173; People v. Warcup, 285 App. Div. 1077; Dancy v. United, States, 361 F. 2d 75.) III. Appellant was improperly allowed to represent himself at trial. (Gideon v. Wainwright, 372 U. S. 335; Johnson v. Zerbst, 304 U. S. 458; Von Moltke v. Gillies, 332 U. S. 708; Day v. United States, 357 F. 2d 907; United States v. Plattner, 330 F. 2d 271.) IV. Appellant was denied his right to counsel when making his post-verdict motions. (People v. Koch, 299 N. Y. 378.) V. The defense of insanity should have been charged. (People v. Lluveras, 19 A D 2d 525; Dancy v. United States, 361 F. 2d 75; Cross v. United States, 354 F. 2d 512.) VI. As there was evidence that appellant lacked a specific intent to commit grievous bodily harm the trial court should have charged the elements of assault in the third degree. (People v. Mussenden, 308 N. Y. 558; People v. Hall, 12 A D 2d 815.) VII. The trial court committed reversible error by denying the timely motion to dismiss and charging there was no dispute concerning an element of the crime. (People v. Fields, 174 Misc. 309; People v. Burch, 281 App. Div. 348; People v. Grass, 79 Misc. 457; People v. Marks, 146 App. Div. 11; People v. Kielczewski, 269 Ill. 293; Watson v. State, 236 Ind. 329; People v. Walker, 198 N. Y. 329.) VIII. Appellant was improperly sentenced for a crime of which he was not found guilty. IX. Defendant was improperly sentenced as a multiple offender. (People v. Walker, 198 N. Y. 329; People ex rel. Carr v. Brophy, 287 N. Y. 588.)
    
      Frank S. Hogan, District Attorney (Milton M. Stein and Michael Juviler of counsel), for respondent.
    I. The guilt of defendant was proved beyond a reasonable doubt. (People v. Walker, 198 N. Y. 329; People v. Brady, 16 N Y 2d 186; People v. Robinson, 284 N. Y. 75.) II. No hearing was required concerning defendant’s mental competence to stand trial. (People v. Esposito, 287 N. Y. 389; People v. Lluveras, 19 A D 2d 525; People v. Smyth, 3 N Y 2d 184; People v. Boundy, 10 N Y 2d 518; Pate v. Robinson, 383 U. S. 375; United States v. Follette, 367 F. 2d 559; Whalem v. United States, 346 F. 2d 812, 382 U. S. 862; Hansford v. United States, 365 F. 2d 920; People v. Blando, 23 A D 2d 761.) III. Defendant was competent to exercise his right to defend himself. (People v. Brabson, 9 N Y 2d 173; 
      People ex rel. Hirschberg v. Close, 1 N Y 2d 258; Westbrook v. Arizona, 384 U. S. 150.) IV. The court was not required, on its oAvn motion, to submit a defense of insanity to the jury. (People v. Horton, 308 N. Y. 1; People ex rel. Hubbard v. LaVallee, 14 A D 2d 932.) V. The court was not required, on its own motion, to submit the crime of assault in the third degree to the jury as a lesser included offense. (People v. Wood, 10 A D 2d 231.) VI. Defendant was properly sentenced as a prior felony offender. (People ex rel. Carr v. Brophy, 287 N. Y. 588; People v. Heath, 237 App. Div. 209; People v. Coleman, 237 App. Div. 211.) VII. The judgment, as corrected, imposed on defendant for his possession of a pistol conforms with the verdict.
   Keating, J.

The defendant, Domingo Gonzalez, Avas the father of an illegitimate child, who had been surrendered by her mother to the Welfare Department. Gonzalez attempted to obtain custody of his daughter, but the Welfare Department was opposed to this. On the trial of Gonzalez for assault in the second degree, it was testified that he Avent to the office of the Welfare Department and, pointing a gun at a patrolman in the office, told him to put up his hands and demanded to be taken to the Commissioner. He stated at this time that he Avanted his child.

On arraignment in the Criminal Court the day after the crime, Gonzalez was committed for psychiatric examination. The psychiatric report to the court noted that, although he had a “relatively intact facade”, defendant showed a “serious impairment in his thinking * * * characterized by many paranoid trends ”, The report concluded that “ Hospitalization is strongly recommended ”.

On the basis of this report, defendant Avas admitted to MattcaAvan State Hospital where he remained for some 10 months, after Avhich he was released and the criminal prosecution A\as resumed. At the trial, defendant insisted on trying his OAvn case and refused the services of assigned counsel, although counsel was present and, to the extent permitted, helped him. No plea of insanity was interposed, and, in fact, defendant on the trial insisted that he Avas quite sane.

Before the trial began, the Trial Judge directed another psychiatric examination to determine defendant’s mental ability to be tried. The report of the psychiatrists was guarded. They concluded that defendant “ is not psychotic in the legal sense ” and, therefore, they felt “he is able to stand trial and defend himself adequately at the present time ”.

Again, the curious and very guarded phrase is used: ‘ Thus, in the legal sense, we would not consider him insane.” There follows some significant comment: “ From a purely psychiatric point of view, however, we would consider him an individual whose personality has become sufficiently altered and aberrant to warrant a diagnosis of psychiatric abnormality which is probably best described as a Paranoid State. We would consider this to be only in partial remission at this time.”

This would seem, on the face of it, to suggest that defendant was then insane in a psychiatric sense but not a “ purely ” legal sense. This is strikingly similar to the diagnosis of 10 months before when he was mentally ill enough to be committed to Matteawan, i.e., he “ presents serious impairment in his thinking ’ \

The Judge accepted the written report of the psychiatrists without conducting a hearing on the question of defendant’s mental capacity to be tried. The opening of defendant to the jury repeated almost verbatim some of the statements which defendant had made to psychiatrists which had suggested psychiatric abnormality, particularly his obsessive sense of injustice in not obtaining custody of his child.

After the verdict of guilty and before sentence, the Judge directed a further psychiatric examination to determine the defendant’s ability to understand the proceedings against him. The psychiatric report resulting from this third examination was rather similar to the others. There is still a persistent preoccupation “with gaining the custody of his daughter”. Improvement in his mental condition is indicated, but if he is released to the community “it is likely that he will require assistance and supervision”. The diagnosis (“Impression”) is ‘ ‘ Without psychosis; schizophrenic reaction; Paranoid Type, in remission He “ is not in such a state of idiocy ”, etc., as to “ be incapable of understanding the charge ”, etc.

This appeal presents two questions for our consideration. The first is whether the Trial Judge sua sponte should have conducted a hearing as to the defendant’s mental capacity at the time of the trial. Second, irrespective of the question of the defendant’s sanity at that time, whether the Trial Judge should have charged the jury on the question of the defendant’s sanity at the time of the commission of the crime.

The written psychiatric report of the defendant’s condition as the trial began and the statements and attitudes of the defendant in undertaking the trial alone should have impelled the trial court sua sponte to order a hearing on the issue of the defendant’s competence to stand trial. (Pate v. Robinson, 383 U. S. 375, 378.) Clearly, the defendant is now entitled to a hearing on that issue. We conclude, however, that a complete new trial of the issue of guilt or innocence is not mandated. We consider below the two stages of defendant’s alleged insanity.

I. Sanity at the Time of Trial

In People v. Hudson (19 N Y 2d 137) we interpreted the rule laid down by Pate v. Robinson (supra). In Pate the Supreme Court held that a new trial was mandated since “ expert witnesses would have to testify solely from information contained in the printed record. That Robinson’s hearing would be held six years after the fact aggravates these difficulties.” (Pate v. Robinson, supra, p. 387.) The court in Pate found that it would be virtually impossible to determine Robinson’s sanity at the time of trial solely from the printed record. We distinguished Hudson from Pate in this respect on the ground that there was available in Hudson ‘ ‘ medical proof related to conditions at the initiation and during the progress of the trial, and of the close observations of witnesses who, from different points of vantage, observed defendant and could describe his conduct, [which] makes it possible to afford a plenary inquiry into his competency at the time of trial. The issue would not here be left, as it was in Pate, to opinions based on reading a printed record. All the safeguards of a concurrent determination Avould thus be preserved.” (People v. Hudson, supra, p. 140.)

The instant case is similar to People v. Hudson in this respect. The trial was conducted in 1964. Presumably, as in Hudson, much more than merely the printed record Avill be available since not only the Avitnesses from the previous trial can testify regarding Gonzalez ’ demeanor and conduct but, also, the doctors who examined, him and the Judge can be called upon to testify concerning their observations of Gonzalez.

Accordingly, under People v. Hudson (supra) a hearing should be held with respect to Gonzalez’ sanity at the time of his trial.

II. Sanity at the Time of the Commission of the Crime

Obviously, if it is determined, after the hearing, that Gonzalez was not competent at the time of his trial, he will be entitled to a new trial. It has been suggested, however, that, even if it is concluded that he was sane at the time of his trial, nevertheless the verdict should not stand, because the Trial Judge failed to charge the jury, sua sponte, on the issue of insanity at the time of the commission of the crime. It is significant with respect to this issue that Gonzalez insisted on conducting his own defense. A lawyer was present to aid him to the extent that he permitted this. Gonzalez did not raise the defense of insanity during the trial and, in fact, insisted throughout that he was sane. It seems to us improper to place on a Trial Judge the burden of interposing and charging possible defenses, although not raised on the trial, simply because the defendant has insisted on appearing pro se. If Gonzalez had been represented by an attorney who failed to raise the defense of insanity, it would be simply assumed that he had consulted with his client, who was unprepared to risk being confined to a State mental institution. Where a sane person similarly refuses to raise such a defense on his own behalf, it should ordinarily be assumed that he waived it. We do note, however, that Gonzalez mentioned after the verdict and before sentencing that 1 ‘ it is illegal to try an ex-mental patient for a crime committed while he was supposed to be mentally ill.”

Since the defendant failed to raise this line of defense throughout the trial, this reference to possible insanity at the time of the commission of the crime should not operate to vitiate a verdict rendered on the basis of the defendant’s waiver of this defense. If we were to permit such a statement as quoted above to invalidate a duly rendered verdict simply because the defendant appeared pro se, an unfair discrimination would exist against those defendants who are represented by attorneys. No one would suggest that an attorney, who failed to raise such a defense on behalf of his client, could obtain a new trial after the verdict by such a casual reference.

We are not unmindful of the difficulties presented by defendants who insist on conducting their own defenses. Every effort should be made by both the Judge and the People to ascertain that such a defendant understands the possible avenues of defense which are open to him.

In this case, the Judge saw to it that an attorney was present to aid in Gonzalez’ defense. If the trial court had charged insanity over the defendant’s objection, this might have seriously jeopardized his case. The penalty for assault in the second degree is not so serious as to ordinarily risk incarceration in a State mental institution to avoid it.

Under the circumstances of this case, therefore, it was not improper for the Trial Judge to fail to charge the defense of insanity. Since it "was error, however, for him not to hold a hearing to determine the defendant’s sanity at the time of the trial, a hearing should be ordered on that issue and, if the defendant’s allegations are substantiated, a new trial ordered. If they are not, the judgment should be affirmed.

Bergan, J.

(concurring in part). There should, of course, as Judge Keatistg has written, at least be a hearing on the question of defendant’s mental capacity at the time of trial. We are of opinion, additionally, that there should be a new trial at which the question of defendant’s sanity at the time of the crime be determined.

A formal plea of not guilty on the ground of insanity was not interposed, but in the absence of a valid determination under sections 871-876 of the Code of Criminal Procedure that the defendant is competent to conduct his own defense the Trial Judge’s obligation in management of the trial was not measured precisely by the absence of that specification in the plea. Both the psychiatric reports and the actions of the defendant were so suggestive of insanity as to require the Judge to submit to the jury the question of his criminal responsibility for the offense. This course was especially indicated where, in the psychiatric examination immediately following the crime, it was reported to the court there was a ‘ serious impairment in his thinking” and hospitalization was “strongly recommended ”.

This early psychiatric analysis, together with the psychiatric report made directly to the Trial Judge; the bizarre and senseless nature of the crime; the obsessive preoccupation of defendant throughout the trial with his right to custody of the child, and his aberrant conduct in the trial, taken together, would require the Judge to submit the question of insanity to the jury. (See Whalem v. United States, 346 F. 2d 812, 818, 819, cert. den. 382 U. S. 862; Cross v. United States, 354 F. 2d 512, 513.)

' Beyond this, the Judge ought to have granted a new trial where, prior to sentence, defendant expressly raised the issue of his mental capacity and lack of criminal responsibility (Code Crim. Pro., § 336).

A new trial should be ordered.

Scileppi, J.,

(dissenting). In the present case, no sanity issue was proffered either on trial or by plea before trial. It cannot be that a question of the defendant’s sanity, whenever and however raised, requires the granting of the relief here awarded. The record indicates that the Trial Judge made extreme efforts to satisfy himself that the defendant possessed sufficient sanity to mount his own defense. Nevertheless, the majority says that there must be a hearing.

I disagree that the failure to hold a hearing on the defendant’s ability to stand trial warrants reversal. There is nothing .suggestive that such a hearing would have led the Trial Judge to any different result. He was aware of the situation, and had taken steps to assure himself that defendant was sane enough to go on trial. Under these circumstances, a hearing would be surplusage. In Pate v. Robinson (383 U. S. 375), the trial court rejected even the prosecutor’s attempts to introduce relevant psychiatric evidence. In the present case, the defense of insanity was not raised.

I also disagree with so much of the concurring opinion as indicates that the trial court’s failure to interpose the defense of insanity requires a new trial. The defendant elected to be Ms own lawyer, and tried the case on Ms own theory. An attorney was assigned to render whatever assistance he could. All reasonable precautions were taken to insure a fair and impartial trial.' The concurring opinion, however, says that this is not enough. We must go further and require the Trial Judge to abandon his neutrality — the boast of our legal system — and assume an advocate’s mantle, presenting defenses omitted, neglected, or rejected by the defendant. This task should not be forced upon any court. In Gonzalez’ case, it might have been appropriate for the defense to rely upon insanity as a defense of confession and avoidance. But some later case may present the dilemma of a defense founded upon alibi and suggestive circumstances indicating that the defense might also rely on insanity to escape criminal liability. Is the court in that case to intrude and interpose the insanity defense? Such unwarranted action by the Trial Judge could well raise the inference that the defendant perpetrated the crime charged, in spite of the defense effort to establish alibi. I do not think the majority could sanction such a result, but I suggest that they have pointed the way.

The conviction should be affirmed.

Opinion by Judge Keating. All concur, Judge Bergan concurring in part and voting to order a new trial in a separate opinion in which Chief Judge Fuld and Judge Van Voorhis concur, and except Judge Scileppi, who dissents and votes to affirm in an opinion in which Judge Burke concurs. Judge Breitel taking no part.

Judgment modified by remanding the case to the Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.  