§ 250.10 Notice of intent to proffer psychiatric evidence; examination

of defendant upon application of prosecutor.

1. As used in this section, the term "psychiatric evidence" means:

(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 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.

2. Psychiatric evidence is not admissible upon a trial unless the
defendant serves upon the people and files with the court a written
notice of his intention to present psychiatric evidence. Such notice
must be served and filed before trial and not more than thirty days
after entry of the plea of not guilty to the indictment. In the
interest of justice and for good cause shown, however, the court may
permit such service and filing to be made at any later time prior to the
close of the evidence.

3. When a defendant, pursuant to subdivision two of this section,
serves notice of intent to present psychiatric evidence, the district
attorney may apply to the court, upon notice to the defendant, for an
order directing that the defendant submit to an examination by a
psychiatrist or licensed psychologist as defined in article one hundred
fifty-three of the education law designated by the district attorney. If
the application is granted, the psychiatrist or psychologist designated
to conduct the examination must notify the district attorney and counsel
for the defendant of the time and place of the examination. Defendant
has a right to have his counsel present at such examination. The
district attorney may also be present. The role of each counsel at such
examination is that of an observer, and neither counsel shall be
permitted to take an active role at the examination.

4. After the conclusion of the examination, the psychiatrist or
psychologist must promptly prepare a written report of his findings and
evaluation. A copy of such report must be made available to the district
attorney and to the counsel for the defendant. No transcript or
recording of the examination is required, but if one is made, it shall
be made available to both parties prior to the trial.

5. If the court finds that the defendant has willfully refused to
cooperate fully in the examination ordered pursuant to subdivision three
of this section it may preclude introduction of testimony by a
psychiatrist or psychologist concerning mental disease or defect of the
defendant at trial. Where, however, the defendant has other proof of his
affirmative defense, and the court has found that the defendant did not
submit to or cooperate fully in the examination ordered by the court,
this other evidence, if otherwise competent, shall be admissible. In
such case, the court must instruct the jury that the defendant did not
submit to or cooperate fully in the pre-trial psychiatric examination
ordered by the court pursuant to subdivision three of this section and
that such failure may be considered in determining the merits of the
affirmative defense.