        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1152
KA 09-01961
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT FULLEN, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered July 30, 2009. The appeal was held by this
Court by order entered June 13, 2014, decision was reserved and the
matter was remitted to Supreme Court, Monroe County, for further
proceedings (118 AD3d 1297).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: We previously held this case, reserved decision, and
remitted the matter to Supreme Court to conduct a reconstruction
hearing with respect to the victim’s missing psychiatric records
(People v Fullen, 118 AD3d 1297). Upon remittal, the prosecutor
prepared a new subpoena, and the records were again given to the
court, which forwarded them to this Court. Upon our review of those
records, we conclude that the court did not abuse its discretion in
denying defendant access to them (see People v Tirado, 109 AD3d 688,
688-689, lv denied 22 NY3d 959, reconsideration denied 22 NY3d 1091,
cert denied ___ US___, 135 S Ct 183; People v Toledo, 270 AD2d 805,
806, lv denied 95 NY2d 858; see also People v Bird, 284 AD2d 339, 339,
lv denied 96 NY2d 916). “ ‘[C]onfidential psychiatric records should
be disclosed only when their confidentiality is significantly
outweighed by the interests of justice’ ” (Tirado, 109 AD3d at 688).
Here, defendant was aware that the victim was hospitalized for an
unspecified mental health issue in July 2007, that she suffered from
depression, and that she was prescribed medication around the time of
the criminal incident herein. Defendant was able to cross-examine
both the victim and her mother regarding those matters (see Toledo,
270 AD2d at 806; People v Arredondo, 226 AD2d 322, 322, lv denied 88
NY2d 964). In addition, we agree with the court that there was
nothing in the records that was relevant to the victim’s credibility
or competency to testify (see Toledo, 270 AD2d at 806; see generally
                                 -2-                          1152
                                                         KA 09-01961

People v Dudley, 167 AD2d 317, 321). Inasmuch as defendant’s need for
the records did not outweigh the need to preserve their
confidentiality, we reject defendant’s contention that the court
committed reversible error in denying him access to those records (see
Toledo, 270 AD2d at 806). Viewing the evidence in light of the
elements of the crimes as charged to the jury (see People v Danielson,
9 NY3d 342, 349), we reject defendant’s further contention that the
verdict is against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495).




Entered:   November 13, 2015                   Frances E. Cafarell
                                               Clerk of the Court
