On March 4, 2016, a Grand Jury accused the defendant, Narada Matthews, of committing the crimes of: Attempted Murder in the Second Degree, in violation of Penal Law §§ 110/125.25(1); Assault in the First Degree, in violation of Penal Law § 120.10(1); three counts of Robbery in the First Degree, in violation of Penal Law §§ 160.15(1), 160.15(2), and 160.15(4); and two counts of Criminal Possession of a Weapon in the Second Degree, in violation of Penal Law § 265.03(1)(b) and 265.03(3).

The People allege that on December 25, 2015, the defendant shot the victim in the abdomen while forcibly taking property from him. Within seconds of the shooting, an unapprehended individual shot the defendant in the leg. Then, that individual, along with a group of other men, severely beat the defendant who suffered significant injuries and eventually slipped into a coma.

By omnibus motion dated May 10, 2016, the defendant moved to suppress an out of court identification, statements allegedly made by the defendant, as well as physical evidence allegedly recovered from the defendant. Defendant also served a demand to produce, in which, among other things, he made a specific request for "[a]ny tapes, 911 calls, radio runs, or other electronic recordings which relate to this action, whether or not made during the course of the alleged [*2]criminal transaction" (defendant's Omnibus Motion and Demand to Produce, dated May 10, 2016, in the court file).

Nearly a year later, on January 11, 2017, the People provided the defendant with copies of hundreds of recorded telephone calls the defendant allegedly made while incarcerated at the Rikers Island Jail Complex. The People also served notice of their intention to introduce at trial eight of the recorded telephone calls or portions thereof.

In motion papers, dated January 30, 2017, the defendant moved to preclude the People from introducing the recorded jailhouse calls into evidence on the grounds that: (1) the telephone calls were recorded and turned over to the District Attorney's Office without a warrant and without the defendant's consent; (2) the statements contained in the calls were not voluntarily made pursuant to CPL § 60.45, which bars from introduction at trial statements obtained by any person from a defendant through the use or threatened use of physical force, or by a law enforcement officer by means of promises or statements of fact which create a substantial risk of false self-incrimination; and (3) the calls are unduly prejudicial and of limited probative value because: (i) the defendant was suffering from a Traumatic Brain Injury (hereinafter "TBI") at the time of the recorded telephone conversations and he has no actual memory of the events in question and, thus, the conversations cannot be fairly characterized as admissions; and (ii) allowing the recorded calls into evidence would force the defendant to testify in order to explain his mental and medical condition at the time he made the calls and to further explain why he made the statements.

In the alternative, the defendant moves for an order permitting him to present the testimony of a neurological expert, Dr. Barry Jordan of the Burke Rehabilitation Institute, at a pre-trial hearing and/or at trial. Defendant further asserts that the People should be precluded from examining the defendant because such expert testimony does not fall within the ambit of CPL § 250.10, in that the expert testimony will not be offered to mitigate the defendant's mental state at the time of the commission of the crime. Defendant alleges that the expert testimony will merely call into question the voluntariness of the defendant's statements in the recorded telephone calls and thus the provisions of CPL § 250.10(3) are not triggered. Defendant further asserts that the issue whether the Riker's calls are admissible is a question of law for this Court, and not a question of fact for the jury, in that this Court must first determine whether the statements can be characterized as admissions at all, or whether they are merely the defendant's recitation of what he had been previously told by family and friends.

The People argue that it is settled law that recorded jailhouse calls of a defendant are admissible as admissions. As such, the People believe that the Court should permit the introduction of portions of the telephone calls in their case in chief. Specifically, the People argue that the defendant's statements are highly probative as to the issues of identity and state of mind, and will help the jury determine what actually transpired on December 25, 2015. The People further argue that whether the statements are merely a recitation of what the defendant had been told by others is a question of weight for the jury and not a question of law for this Court and therefore, the defendant is not entitled to a pre-trial hearing.

Moreover, the People assert that the defendant's proposed expert testimony does indeed fall within the purview of CPL § 250.10(1)(c) because any medical evidence relating to the [*3]defendant's memory loss is evidence of a "mental disease or defect" as that term is applied in the statute.

On June 6, 2017, defendant filed a Notice of Intent To Proffer Neurological Evidence. The notice stated "[the defendant] hereby serves notice upon the District Attorney and this Court of his intent to proffer at trial, and possibly at any hearings if necessary, neurological evidence as to the mental defect (specifically a TBI) which relates to our defense at trial," citing CPL § 250.10(1)(c) and naming Dr. Barry Jordan of the Burke Rehabilitation Institute as the defense expert. The defense also indicated that all medical records relied upon by Dr. Jordan had been previously turned over to the prosecution.

A defendant's own inculpatory statements are admissible at trial as an exception to the rule against hearsay. See People v. Caban, 5 NY3d 143 (2005); People v. Moore, 118 AD3d 916 (2d Dept. 2014); People v. Case, 113 AD3d 872, 872-873 (2d Dept. 2014). Recorded inculpatory statements of the defendant made while incarcerated are admissible evidence at trial as admissions. See People v. Johnson, 27 NY3d 199, 206 (2016); People v. Dickson, 143 AD3d 494, 495 (1st Dept. 2016).

The argument advanced by the defendant that the recorded telephone calls must be suppressed because they were obtained and disseminated without his consent was squarely rejected by the Appellate Division's recent decision in People v. Cisse, 149 AD3d 435 (1st Dept. 2017), lv. granted __ NY3d __ (August 23, 2017). There, the First Department held that "[t]he admission of incriminating, nonprivileged phone calls that defendant chose to make while incarcerated, after receiving multiple forms of notice that his calls may be monitored and recorded, did not violate federal or state wiretapping laws." With respect to voluntariness pursuant to CPL § 60.45, the court held that:

[d]efendant was free to make privileged calls to his attorney on all aspects of his case, including pretrial investigation. Defendant was also free to limit his social calls to matters unrelated to his case. Instead, defendant chose to assume the risks involved in making unprotected case-related communications. Furthermore, since no public servant, or anyone else, did anything to obtain any statements from defendant, his phone conversations cannot be viewed as involuntary for purposes of CPL 60.45, and no such jury instruction was warranted.

Defendant also argues that whether the Rikers calls are admissible is a threshold question of law for the court and that allowing the calls into evidence would be unduly prejudicial. However, the Court of Appeals and the Appellate Division have already determined that recorded jailhouse calls which capture a defendant's inculpatory statements are admissible at trial as admissions. As a result, the threshold question has already been decided in favor of admissibility.

The remaining question to be determined is whether the recorded statements of the defendant constitute admissions, that is: whether, and to what extent, the defendant was suffering from a TBI at the time he made the recorded statements; whether in fact he had no independent [*4]recollection of the incident; and ultimately whether those are questions of admissibility for the court or of weight for the trier of fact.

This Court finds that any uncertainty as to whether the defendant's jailhouse calls are indeed admissions because he was allegedly suffering from a TBI at the time they were made does not affect the admissibility of the calls but, rather goes to the weight the jury may attribute to that evidence. See Case, 113 AD3d at 873 ("In addition, one of those recordings also was properly admitted because it contained evidence that the defendant owned a pistol and was trying to dispose of it after his arrest. While the defendant contends that, in the recording, he was not discussing the pistol used to shoot the complainant, any uncertainty as to the identification of the gun affects only the weight to be given to the recording, not its admissibility"); People v. Inesti, 95 AD3d 690 (1st Dept. 2012) ("The court correctly permitted the People to rebut defendant's psychiatric defense by introducing tape recordings of telephone calls made by defendant while incarcerated, in which he did not exhibit any indicia of mental illness. . . . The possibility that defendant's mental condition might vary from time to time went to the weight to be accorded the rebuttal evidence, rather than its admissibility").

Thus, it is the trier of fact who must determine whether the defendant was suffering from a TBI at the time he made the statements and, if he was, whether and to what extent it affected his memory of the alleged incident.

Here, the recorded telephone conversations contain statements by the defendant that he argued with the complainant, retrieved a gun, and then shot the complainant. While the defendant contends that, at the time he participated in the calls, he was suffering from both short-term and long-term memory loss as a result of a TBI and thus had no independent recollection of the incident, whether that is in fact true goes only to the weight to be given to the recordings, not their admissibility.

Accordingly, the Riker's Island telephone calls are admissible at trial provided a proper foundation is laid, because they constitute admissions, and as such, are exceptions to the rule against hearsay. Whether defendant suffered from a TBI which impaired his ability to recall the events in question is an issue of fact for the jury rather than a question of law for this Court, thus his request for an evidentiary hearing is denied.

The CPL requires a defendant to file a notice of an intent to present "psychiatric evidence" of a mental disease or defect or other mental infirmities to be offered by th defendant in connection with: (1) the affirmative defense of insanity; or (2) the affirmative defense of extreme emotional disturbance; or (3) "any other defense." People v. Berk, 88 NY2d 257, 263, 265 (1996); see also CPL § 250.10.

Specifically, CPL § 250.10 provides that a defendant may introduce at trial:

(a) Evidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of lack of criminal responsibility by reason of mental disease or defect.

(b) Evidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of extreme emotional disturbance as defined in paragraph (a) of [*5]subdivision one of section 125.25 of the penal law and paragraph (a) of subdivision two of section 125.27 of the penal law.

(c) Evidence of mental disease or defect to be offered by the defendant in connection with any other defense not specified in the preceding paragraphs.

CPL § 250.10(1)(a-c). Such evidence is not admissible at trial, unless written notice of his anticipated defense is served "before trial and not more than thirty days after" a defendant's arraignment, except where a defendant can demonstrate that he was justified in failing to meet the time limitations. CPL § 250.10(2). After receiving notice of a psychiatric defense, the People may request an order directing an examination of the defendant by an expert designated by the prosecution. CPL § 250.10(3).

1. Notice

The parties do not dispute that the defendant's June 6, 2017, notice of his intent to introduce expert testimony regarding his mental state at the time the jailhouse calls were recorded is untimely. However, the defendant asserts that his delay should be excused because the People did not disclose the existence of the jailhouse calls, nor their intent to introduce the calls at trial until January 11, 2017, approximately 10 months after the defendant was indicted. This Court accepts the defense's representations that, until the defendant was made aware of the People's intent to introduce the Rikers calls at trial, there was no apparent reason for the defense to serve notice of an attempt to defend against those statements. Defendant's explanation for his late notice is accepted and he will be permitted to offer expert testimony at trial concerning his mental state at the time of the recorded telephone conversations.

2. Applicability

In light of the defendant's intention to offer expert testimony as a defense in the case, the People seek an order directing the defendant to submit to an examination by an expert designated by the People pursuant to CPL § 250.10.

Defendant argues that CPL § 250.10 applies only to psychiatric defenses that mitigate the elements of the crime charged and that defendant is seeking no such thing. The People counter that defendant's reading of CPL § 250.10 is too narrow and that courts have read the statute more broadly to include expert testimony offered in connection with any defense in the case which bears upon the People's ability to prove their case beyond a reasonable doubt. This Court agrees with the prosecution.

CPL § 250.10, subsection (1)(c) is dubbed the "catch-all" provision because it authorizes a defendant, upon proper notice, to introduce "[e]vidence of [any] mental disease or defect . . . in connection with any other defense not specified in the preceding paragraphs." "[T]he notice requirement is not limited to evidence regarding defenses specified in the Penal Law. [Rather,] it includes any psychiatric evidence proposed in support of any condition bearing upon defendant's mental state, irrespective of whether that concerns something statutorily denominated as a defense." People v. Brown, 4 AD3d 886, 888 (4th Dept. 2004), quoting Preiser, Practice Commentaries, McKinney's Cons. Laws of NY, Book 11A, CPL 250.10, at 111 (citing Berk, 88 NY2d at 263-264; People v. Segal, 54 NY2d 58, 65-66 [1981]; People v. Rossi, 163 AD2d 660, lv. denied [1990]).

Brown, supra, People v. Prater, 172 Misc 2d 831 (Sup. Ct. Kings Cty 1997), and People v. Morello, 142 Misc 2d 142 (Cty. Ct., Westchester Cty. 1988) support the People's position. In [*6]Brown, the defendant sought to offer psychiatric testimony to demonstrate that his statements in a post-arrest confession to police were the result of his multiple "alter" personalities. Brown, 4 AD3d at 887-888. County Court ruled that CPL § 250.10(1)(c) applied, even though the defendant was not seeking to offer expert testimony concerning his mental state at the time of the crime. Id. at 4 AD3d at 888.

In Prater, where the defendant contended that CPL § 250.10 only applied in cases "where the psychiatric testimony will bear on [the] defendant's mental state at the time he/she committed the crime," the court defined "any other defense," as used in subsection (1)(c), as encompassing instances where the "defendant [seeks] to proffer [] psychiatric evidence to show her mental state at the time of the post-arrest statement in order to 'challenge the voluntariness, reliability and probative value' of that statement." Prater, 172 Misc 2d at 832. Specifically, the court held that:

[t]he prospective psychiatric evidence explaining defendant's state of mind at the time of her statement is basically a "defense" to the admissibility of that statement. Its objective is to exclude a vital portion of the prosecution's proof. Fairness therefore dictates the prosecution be afforded an opportunity to examine defendant in an effort to rebut the defense evidence. The prosecution should not be handicapped by a constricted interpretation of the legislative intent.

The Commentary offers a similar view. "[T]he right of the People to conduct such an examination is not dependent upon the purpose for which that evidence is submitted. If the evidence is relevant to the defendant's case, it is evidence the People must meet; and fairness requires an opportunity for the examination." (Preiser, Practice Commentaries, McKinney's Cons. Laws of NY, Book 11A, CPL 250.10, at 332.)

Similarly, in Morello, the defendant "[sought] to introduce psychiatric evidence to show his state of mind at the time a statement was made [to police] to show that he did not voluntarily make that statement." Morello, 142 Misc 2d at 143-144. The defendant argued that CPL § 250.10 did not apply because he was not raising the defense of mental disease or defect and he was not seeking to mitigate the crime by asserting extreme emotional distress at the time of the crime. Id. at 143. County Court ruled that the statute applied, holding that "(t)he defendant sought, on the one hand, to put the People to their proof with respect to his mental capacity and, on the other hand, denied them an opportunity to effectively meet the burden" of proof. Id. In other words, the defendant may not offer a defense in order to block the prosecution from proving the elements of the crimes charged beyond a reasonable doubt, without giving the prosecution an opportunity to test his claims.

Here, the defendant is seeking to introduce evidence at trial that, at the time he made the statements recorded in the jailhouse calls, he was (and still is) suffering from a TBI, which affected his short-term and long-term memory of the incident. Specifically, defendant argues that his statements were merely a recitation of what he had been previously told by friends and family.

This Court finds that the defendant is seeking to offer evidence of a mental disease or defect in connection with another defense which is not specified in the statute. CPL § 250.10(1)(c); see also Brown, 4 AD3d at 886 and Morello, 142 Misc 2d at 142. Pursuant to the language of the statute and the prevailing law, every defense of a mental disease or defect does [*7]not have to mitigate an element of the crime itself, but may go to "any other defense" in the case. Accordingly, CPL § 250.10 applies. The defendant is directed to immediately make himself available for an examination by the prosecution's expert. The People, of course, must abide by the procedures set forth in CPL §§ 250.10(3) and (4).

Defendant's request for a pre-trial hearing on the CPL § 250.10 issue is denied. The claim that the defendant's jailhouse statements were involuntary, that is, the jailhouse statements were somehow coerced within the meaning of CPL § 60.45, is rejected.

The above opinion constitutes the decision and order of this Court.