Defendant's motion to reargue the denial of his application to be furnished with the complainant's psychiatric records or, alternatively, to be provided with information which would enable him to subpoena such records is granted. Upon reargument the court's decision is modified to the extent that the People are directed to obtain the psychiatric records of the complainant, if any, created within the past five years and to furnish such records to the court for in camera inspection.

Evidence that a witness has received psychiatric treatment can be properly received on cross examination to impeach credibility. People v. Rivera, 138 AD2d 169 (1st Dept. 1998); People v. Tucker, 171 Misc 2d 1(Sup. Ct. Kings Co. 1996); see also, People v. Earel, 89 NY2d 960 (1997).

The People have no affirmative duty to ascertain whether the complaiant had a psychiatric history. People v. Collins, 250 AD2d 379 (1st Dept. 1998). However, where the existence of such a history, becomes known, there exists the possibility that psychiatric records of that history may be material as to the complainant's credibility or capacity to perceive or recall and, thus, may be exculpatory.^[FN1] People v. Rensing, 14 NY2d 210 (1964). The defendant must be given a meaningful opportunity to use the purportedly exculpatory material. People v. Enoch, 221 AD2d 253 (1st Dept. 1995); People v. Dudley, 167 AD2d 317 (1st Dept. 1990).

Although such records are confidential (see, Mental Hygiene Law § 33.13[c][1]), that privilege must yield to the possibility that they contain data relevant and material to a determination of guilt or innocense. Davis v. Alaska, 415 US 308 (1974); People v. Cesar G, 154 Misc 2d 17 (Crim. Ct. NY Co. 1991). [*2]

The appropriate procedure requires that the records be examined by the trial court, in camera, to determine whether they contain material which could possibly be said to affect the outcome of the trial in a manner favorable to the defense. People v. Yavru-Sakuk, ___NY3d___ (2005), NYLJ, 3/30/05, p. 21, col. 5; People v. Vilardi, 76 NY2d 67 (1990). The trial court's review should focus upon whether the records suggest any impairment of the complainant's memory, perception or ability to communicate. Should the court determine that the records do not contain any material evidence which tends to exculpate the defendant, either directly, or by providing material evidence tending to undermine the credibility of the complainant, then such records are not subject to disclosure. People v. Cesar G., supra.

Accordingly, the People are directed either to obtain the complainant's psychiatric records, if any, from the past five years and deliver them to the trial court for in camera inspection or, alternatively, furnish defense counsel with information and a release sufficient to enable defense counsel to subpoena such records for direct delivery to the court for purposes of such inspection.

Dated: New York, New York

April 29, 2005

__________________________

Gerald Harris

J.C.C.