the judges of the Court of Appeals
Standing, left to right: Judges Jenny Rivera, Robert Smith, Susan Phillips Read, Sheila Abdus-Salaam, and Eugene Pigott Jr. Seated, Judge Victoria Graffeo and Chief Judge Jonathan Lippman (Skip Dickstein)

ALBANY – A sharply divided state Court of Appeals affirmed the rape conviction of a man Thursday who argued that his defense was crippled by the trial court’s denial of access to all but a few pages of his victim’s extensive mental health records.

The 4-3 majority concluded that the trial judge, Albany County Judge Thomas Breslin, was within his discretion when he decided that the complainant’s interest in the confidentiality of the sensitive mental health reports outweighed defendant Terence McCray’s interest in obtaining most of the records for his defense.

Applying an analysis under Brady v. Maryland, 373 U.S. 83 (1963), the Court of Appeals majority held that there was not a “reasonable possibility” that the guilty verdict against McCray would have been different if the withheld materials had been available to his defense.

“We hold … that the trial court could reasonably think there was no more than a remote possibility that disclosure of the records it withheld would lead to defendant’s acquittal,” Judge Robert Smith (See Profile) wrote for the majority in People v. McCray, 40. “The court was within its discretion in finding the records’ relevance to be outweighed by the complainant’s legitimate interest in confidentiality.”

McCray, who turned down a plea bargain for a misdemeanor guilty plea and time served, received a 22-year prison sentence for first-degree rape following his jury conviction.

He was accused of raping the then 18-year-old woman after a date in May 2009. He was 40 at the time.

McCray argued that the sex was consensual and that the woman became bruised during a scuffle in which she tried to steal his pants. He said the dispute broke out after she demanded money after they had sex. McCray contended that the woman’s version of being raped was unreliable due to her extensive history of mental health issues.

Following an in camera review of thousands of pages of health records of the victim, Breslin allowed 28 pages to be disclosed to the defense for use at trial.

Smith wrote that the documents were sufficient to build a defense that McCray’s accuser had a “very significant” history of mental health problems, including being bipolar and having Tourette’s Syndrome for which she sometimes did not take her medication, that she visualized being the presence of dead people, that she could be “explosive and angry” and that she had attempted suicide in the past.

Smith said the Court of Appeals’ review of the records withheld by Breslin showed that the materials were “either cumulative or of little if any relevance to the case.”

The instances of the woman’s extreme behavior in the withheld records were “no clearer or more dramatic than the ones the defense already had; the trial court could reasonably conclude that they would add little force to defendant’s attacks on the complainant’s credibility,” Smith wrote.

Judges Victoria Graffeo (See Profile), Susan Phillips Read (See Profile) and Sheila Abdus-Salaam (See Profile) joined the majority ruling.

Writing in dissent, Judge Jenny Rivera (See Profile) said the proper consideration was whether McCray’s rights to confront witnesses under the state and federal Constitutions was unfairly hampered by the denial of access to the complainant’s health records, not the more “narrow” Brady analysis used by the majority.

Records describing the woman’s “short-term memory loss, selective memory, tendency to fabricate, poor perception and unrealistic assessments of intimate relationships” all went directly to the heart of McCray’s defense—the reliability of the complainant—Rivera wrote.

“Without access to documents concerning reliability of the witness, the defendant cannot properly develop and pursue questioning favorable to the defense or address facts and related issues important to the truth-finding process,” Rivera wrote.

She also noted that the majority’s ruling runs counter to findings by top courts in several other states, including Pennsylvania, Maryland and Massachusetts, that denial of access to complainants’ psychiatric records violated the confrontation clause rights of defendants.

Chief Judge Jonathan Lippman (See Profile) and Judge Eugene Pigott Jr. (See Profile) joined in the Rivera dissent.

The ruling affirmed a 3-2 finding by an Appellate Division, Third Department, upholding McCray’s conviction (NYLJ, Jan. 18, 2013). That court also split over the issue of whether limits on the victim’s health records protected her confidentiality interests or violated McCray’s constitutional rights.

McCray’s attorney, Paul Connolly of Delmar, said he could not comment immediately. “I am too disappointed at this time to read [the decision] and digest it,” he said Thursday.

Assistant Albany County District Attorney Steven Sharp represented the prosecution.

Credit Card Conviction

Also Thursday, the court upheld the conviction of a man for his role in a “sophisticated” credit card scam in Manhattan even though it conceded that authorities improperly attached a GPS device to a suspect’s car without the required warrant.

The court agreed unanimously in People v. Lewis, 39, that defendant Anthony Lewis’ conviction on 20 counts, including grand larceny and identity theft, should stand. Lewis is serving a 9 1/3 to 28-year sentence.

Four of the judges said authorities gleaned minimal information about Lewis’ criminal activities during the 11 days in March 2007 that the battery-powered GPS device was attached to his vehicle.

The evidence the GPSt provided in the case against Lewis was “redundant” to information gathered through court-ordered wiretaps and other legal surveillance means, Pigott wrote for the court.

“We conclude…that this violation of defendant’s constitutional right was harmless beyond a reasonable doubt because ‘there is no reasonable possibility that the error might have contributed to defendant’s conviction,’” Pigott wrote, quoting People v. Crimmins, 36 NY2d 230 (1975).

Lippman, Smith and Rivera agreed with Pigott’s opinion.

The other three judges, in a concurrence written by Graffeo, said they preferred to view the case in the context of an ineffective assistance of counsel claim.

Lewis’ attorney, they maintained, had failed to get a clear reading during the trial from the presiding judge, Acting Manhattan Supreme Court Justice Maxwell Wiley, about whether the court felt a case then pending in the Court of Appeals, People v. Weaver, by police was germane to Lewis’ case.

About three weeks after Lewis was found guilty, but before he was sentenced, the Court of Appeals ruled in People v. Weaver, 10 NY3d 966 (2008), that a search warrant was needed for the valid use of a GPS device by police.

Graffeo wrote that the “GPS issue clearly was not adequately preserved” for the court’s review.

As to the ineffective assistance of counsel claim, Graffeo said Lewis failed to establish that his attorney’s work in his defense was “objectively unreasonable.”

Aside from the GPS evidence, Graffeo said Lewis’ guit was “overwhelmingly” established by legally obtained video surveillance, wiretaps, statements from the stores were Lewis used forged credit cards and other evidence.

“Therefore, trial counsel’s failure to properly seek suppression of the GPS evidence did not deprive defendant of meaningful legal assistance,” Graffeo wrote in her concurrence.

Read and Abdus-Salaam agreed with Graffeo.

Susan Salomon of the Center for Appellate Litigation argued for Lewis.

Assistant Manhattan District Attorney Susan Axelrod represented the prosecution.

Authorities charged that Lewis and two co-defendants made fraudulent purchases from retailers in the New York City area using bogus credit cards on which the magnetic data strips from stolen cards had been transferred.