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

486
KA 11-00575
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FRANCISCO TIRADO, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANCISCO TIRADO, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered March 9, 2011. The judgment convicted
defendant, upon a nonjury verdict, of course of sexual conduct against
a child in the first degree and course of sexual conduct against a
child in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the periods of
postrelease supervision shall run concurrently and as modified the
judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a nonjury verdict, of course of sexual conduct against a child in
the first degree (Penal Law § 130.75 [1] [b]) and course of sexual
conduct against a child in the second degree (§ 130.80 [1] [b]). We
reject defendant’s contention that Supreme Court erred in denying his
request for access to the mental health counseling records of one of
the two victims in this case. Mental health records are discoverable
“where a defendant can demonstrate a good faith basis for believing
that the records contain ‘data relevant and material to the
determination of guilt or innocence,’ a decision which will rest
‘largely on the exercise of a sound discretion by the trial court’ ”
(People v McCray, 102 AD3d 1000, 1005, quoting People v Gissendanner,
48 NY2d 543, 548). It is well settled that “[c]onfidential
psychiatric records should be disclosed only when their
confidentiality is significantly outweighed by the interests of
justice” (People v Felong, 283 AD2d 951, 952, lv denied 96 NY2d 862
[internal quotation marks omitted]). Here, the court reviewed the
records in camera before ruling that defendant was not entitled to any
portion of that victim’s mental health counseling records, and the
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                                                         KA 11-00575

court did not abuse its discretion in reaching that conclusion.

     We reject defendant’s further contention that the court abused
its discretion by precluding cross-examination of the same victim
regarding her psychiatric history. “A defendant has a constitutional
right to confront the witnesses against him through cross-examination.
With respect to the psychiatric condition of a witness, ‘the defense
is entitled to show that the witness’s capacity to perceive and recall
events was impaired by that condition’ ” (People v Middlebrooks, 300
AD2d 1142, 1143, lv denied 99 NY2d 630, quoting People v Baranek, 287
AD2d 74, 78). Here, defendant was permitted to question that victim
about any medications that she was presently taking and whether those
medications impaired her memory or affected her testimony. However,
defendant failed to show that her psychiatric history “would bear upon
her credibility or otherwise be relevant” (People v Byers, 254 AD2d
494, 494, lv denied 93 NY2d 1043; see People v Beckett, 186 AD2d 209,
210, lv denied 81 NY2d 760). Therefore, the court did not abuse its
discretion in limiting the cross-examination of that victim (see
People v Corby, 6 NY3d 231, 234-235).

     Defendant’s contentions that the court erred in denying his
motion for full disclosure of the journals of both his ex-wife and one
of the victims and that he has been deprived of appellate review
because the People returned those journals to their respective owners
following trial are without merit. The court reviewed the journals in
camera and concluded that the People had properly disclosed all
portions constituting Rosario material. As to defendant’s contention
that he has been deprived of appellate review, we note that the
journals were not received in evidence and there was no request by
defense counsel that they be preserved, and thus defendant’s
contention is not properly before us (see CPL 470.05 [2]).

     Defendant was not prejudiced as a result of the adjournment of
the trial, which was necessitated because an expert witness for the
prosecution was not available during the week in which the trial was
scheduled to begin. Generally, “ ‘requests for brief adjournments to
secure witnesses should be granted where the witness is identified, is
within the court’s jurisdiction and there is a showing of some
diligence and good faith’ ” (People v Hernandez, 146 AD2d 646, 647).
Here, the court offered to move the trial ahead by one week, and the
People agreed to that change in scheduling. However, defense counsel
was busy that week and, as a result, the court moved the trial to the
next available date, which was almost six months later. Defendant’s
contention, raised in his pro se supplemental brief, that the
adjournment deprived him of his right to a speedy trial is unpreserved
for our review (see People v Diefenbacher, 21 AD3d 1293, 1294, lv
denied 6 NY3d 775), and is without merit inasmuch as the delay was the
result of court congestion (see CPL 30.30; see also People v Johnson,
209 AD2d 986, 986, lv denied 84 NY2d 1033; see generally People v
Anderson, 66 NY2d 529, 534-536).

     As the People correctly concede, the court erred in imposing
consecutive periods of postrelease supervision. “Penal Law § 70.45
(5) (c) mandates that the periods of postrelease supervision merge and
                                 -3-                           486
                                                         KA 11-00575

are satisfied by the service of the longest unexpired term” (People v
Kennedy, 78 AD3d 1477, 1479, lv denied 16 NY3d 798). We therefore
modify the judgment accordingly. However, we reject defendant’s
further contention that the sentence is unduly harsh or severe,
particularly with respect to the imposition of consecutive terms of
incarceration. We have considered defendant’s remaining contentions
in his main and pro se supplemental briefs and conclude that none
warrants reversal or further modification of the judgment.




Entered:   August 15, 2013                     Frances E. Cafarell
                                               Clerk of the Court
