People v. Wernick

OPINION OF THE COURT PlZZUTO, J. P. After giving birth to a baby boy in the bathroom of her college dormitory, the defendant asphyxiated the infant by stuffing toilet paper down his throat. She then placed him in a garbage bag and had an unwitting friend dispose of the bag. [52] At trial, the defendant raised an insanity defense, claiming that she lacked the substantial capacity to know and to appreciate the nature and consequences of her conduct or that such conduct was wrong. The defendant presented expert testimony which established (1) that during her pregnancy she totally denied that she was pregnant, (2) that denial occurs in almost all cases in which women kill their children immediately after birth, and (3) that in a significant number of those cases the women really did not know that they were pregnant. Further, the defendant’s experts concluded that, upon giving birth, the defendant suffered from a brief reactive psychosis because she could no longer deny the reality of her pregnancy. The defendant’s experts also concluded, that, during this psychotic state, the defendant was able to perform purposeful acts, such as stuffing toilet paper in the infant’s mouth, but that she was unable to appreciate the nature and consequences of her conduct. Although the trial court permitted the aforementioned testimony by the defendant’s expert witnesses, it properly precluded those witnesses from also testifying that the defendant suffered from the so-called neonaticide syndrome. Before an expert may testify about the existence of a mental disease or syndrome, the party seeking the introduction of such testimony must establish that the disease or syndrome is generally accepted in the field of psychiatry or psychology and that it would assist the jury in rendering a verdict (see, People v Taylor, 75 NY2d 277, 287-292; People v Weinstein, 156 Misc 2d 34, 42-43; see generally, Frye v United States, 293 F 1013). The general acceptance of novel scientific evidence such as a psychological syndrome may be established through texts and scholarly articles on the subject, expert testimony, or court opinions finding the evidence generally accepted in the relevant scientific community (see, People v Wesley, 83 NY2d 417, 437; People v Middleton, 54 NY2d 42, 49-50). The defense in this case failed to establish that the neonaticide syndrome is generally accepted in the fields of psychiatry and psychology. At the outset of the trial, the People requested a hearing to determine the scientific reliability of the syndrome. However, defense counsel vigorously opposed the People’s application by stating, "I don’t know what syndrome [the prosecutor] is talking about.” Defense counsel assured the [53] court and the prosecutor that the defendant’s experts were "not going to say this is a syndrome.” During the trial, however, defense counsel sought to establish that the defendant suffered from the neonaticide syndrome, and the court ruled that it would not permit the defendant’s expert to create "a new syndrome that [has] not been tested by a [c]ourt at a hearing.” Notwithstanding the clarity with which the court articulated the basis for its ruling, defense counsel never requested that a hearing be conducted to determine whether the neonaticide syndrome has been generally accepted in the relevant scientific community. Thus, we disagree with our dissenting colleague, who has concluded that the Supreme Court erred by failing to conduct a hearing. The defendant not only never requested a hearing but also affirmatively opposed one when the issue was raised by the People. Due to the position maintained by the defendant at trial, the record is devoid of any expert testimony regarding the acceptance of the neonaticide syndrome in the relevant scientific community. The defendant does not contend that other courts have determined that the neonaticide syndrome is generally accepted in the fields of psychiatry and psychology, and the defendant’s contention that the scholarly literature establishes general acceptance of the syndrome is unpreserved for appellate review since the defendant failed to raise this argument at trial (see, CPL 470.05 [2]; People v Bynum, 70 NY2d 858). Although the defense may have provided the prosecution with articles upon which the defendant’s experts based their opinions, those articles were not made a part of the record on appeal, and there is no indication in the record that the trial court was provided with any scholarly literature on the subject of the neonaticide syndrome. Accordingly, in the absence of any evidence in the record that the neonaticide syndrome is generally accepted in the relevant scientific community, the trial court properly excluded reference to it at trial (cf., People v Bennett, 79 NY2d 464; People v Weinstein, 156 Misc 2d 34, supra). Furthermore, the trial court’s rulings limiting the defendant’s experts from testifying about the neonaticide syndrome did not violate the Criminal Procedure Law. CPL 60.55 (1) provides that a psychiatrist or licensed psychologist "must be permitted to make any explanation reasonably serving to clarify his diagnosis and opinion.” Contrary to the viewpoint espoused by our dissenting colleague, the trial court did not prevent "the defendant’s experts from alluding in any fashion [54] either to the literature or to their own experiences with neonaticide.” Indeed, in ruling that the defendant’s expert could not create "a new syndrome that [has] not been tested by a [c]ourt at a hearing,” the court specifically stated as follows: "I am not preventing the witness from testifying as to the basis of his opinions. I am just preventing him, as I said, from setting up a specific profile that he has gleaned from the literature, as to why young mothers, or mothers kill their babies. This common theme. * * * "Certainly, the Doctor can testify as to this specific defendant, and what led him to his conclusions, based upon his own experiences, his reading of the literature, his studies of her, without quoting this common theme from the literature.” In sum, a review of the evidence adduced at trial and the language of the court’s rulings on this topic lead us to the conclusion that the defendant’s experts were not precluded from referring to the relevant literature or to their relevant experiences in expressing opinions regarding the defendant’s mental state before, during, and after the crime. The trial court properly admitted into evidence a photograph of the deceased infant. Photographs of victims may be admitted "to illustrate, elucidate or corroborate other evidence offered or to be offered at the trial” (People v Stevens, 76 NY2d 833, 835). The photograph in this case was admitted to illustrate the medical testimony. Thus, the trial court did not improvidently exercise its discretion in admitting the photograph into evidence (see, People v Ellwood, 205 AD2d 553). We find that the circumstances of this case do not warrant modification of the defendant’s sentence from a term of imprisonment to probation. The defendant’s remaining contentions, including the claims of prosecutorial misconduct, are either unpreserved for appellate review (see, CPL 470.05 [2]) or without merit.