STATE OF NEW YORK, COUNTY OF WASHINGTON COUNTY COURT THE PEOPLE OF THE STATE OF NEW YORK, DECISION AND ORDER ON EXPERT WITNESSES -against- 1-042-2023 KEVIN MONAHAN, Defendant Defendant in this matter is currently represented by Attorneys Kurt Mausert, Esq, and Arthur Frost, Esq. On June 14, 2023, defense counsel, Mausert, filed a “Preliminary Notice of Intent pursuant to CPL section 250.10 to offer Psychological Evidence.” The notice stated that Doctor Frank Isele, a psychologist, would be performing an evaluation of the defendant, The notice was vague, stating only that psychological evidence would be presented regarding mental disease or defect, including but not limited to Extreme Emotional Disturbance. Defense counsel reserved the right to supplement the notice as new information became available. Pursuant to CPL section 250.10, defense counsel is required to submit a notice of intent to proffer psychiatric evidence. The court is mindful of the fact that based on caselaw and the legislative history of CPL section 250.10, this section should not be read restrictively (People v Berk, 88 NY2d 257 [NY 1996]). On September 13, 2023, defense counsel provided the court with a psychological evaluation completed by Doctor Frank Isele. According to the report provided to the court, Doctor Isele conducted an extensive psychological evaluation of the defendant, The stated purpose of the report “was to determine the role of psychological factors, if any, that might have contributed to Mr. Monahan’s behavior which occurred on April 15, 2023 and that may assist in explanation of same.” According to the report, the testing and evaluation disclosed no mental disease or defect and found that the defendant has “no diagnosable mental disorder, no psychotic disorder, no major mood disorders and no significant other mental disorders.” He is even described as presenting a “largely normal range personality profile in which he appears to be,..reasonably well adjusted...” There is no indication that the defendant consumed any drugs or alcohol on the night of the alleged crime or that he was intoxicated, He was not diagnosed with any substance abuse disorder or personality disorder, On September 21, 2023, defense counsel provided the court a Memorandum of Law regarding the issue of experts. In this Memorandum of Law, defense counsel states that the defendant is not asserting self-defense or extreme emotional disturbance (although defense counsel asserted EED in their preliminary notice, it is not an available defense to the charged offense). In this memorandum, for the first time, defense counsel claims that they are not offering a psychological defense and that the prior notice was merely a courtesy. They do however assert that they want to present psychiatric and psychological evidence.Defense counsel seeks to have two expert witnesses testify. The first is Doctor Isele. The second is Mr. Ken Cooper. As to Mr. Cooper, defense counsel states that “his specialized knowledge, experience, and training in deadly force encounters, tacties, psycho-physiology, and other specialized knowledge is relevant & outside the ken of the typical juror.” The defense counsel further asserts that Mr. Cooper has many of the same credentials as Massad Ayoob who (according to defense counsel) was offered as an expert but not allowed to testify in People v. Salce, 124 AD3d 923 [3rd Dept. 2015] which was found to be reversible error. In Salce the court did not allow a police officer with expertise in assaults and knives, to testify even though the people elicited testimony from police regarding the nature and extent of the wounds, The facts in Salce, a physical altercation involving a knife, required a jury charge on the justification defense. In the instant case, defense counsel is not asserting self-defense and the facts known to the court at this time do not support such a defense. The court is at a loss as to how this is remotely akin to the facts at bar. A hearing was held on October 13, 2023, regarding the proffered expert testimony. Mr. Cooper appeared on that date to testify regarding his credentials and expertise. The defendant ‘was represented by Attorneys Frost and Mausert, Assistant Distriet Attorneys Christian Morris and Brandon Rathbun appeared for the people. The court gave counsel leave to file post-hearing summations which were received and considered by the court, At defense counsel’s request, the scope of the hearing was limited to Mr. Cooper’s qualifications. Defense counsel, in its post-heating submission regarding defendant's proffer of expert witness, for the first time gives a succinet, specific statement of the proffered testimony of Mr Cooper. “If permitted, Mr. Cooper would testify that (i) the events preceding the fatal shot were a.use of force, progressing along a defined continuum of force, and (ii) the fatal shot was an unintentional discharge resulting in the accidental death of the victim. He would further testify that it was the events leading up to the fatal shot — the high stress environment — and their effect on Mr. Monahan from a psychophysiological standpoint that made him more susceptible to an unintended discharge of the firearm, which in turn caused or contributed to the fatal shot. He would further testify to the cause of the unintentional discharge, along with the mechanies of the unintentional discharge that was the fatal shot.” [Page 3 of Defendant’s post-hearing submission.] ‘There is no representation that Mr. Cooper has any medical credentials, that he has examined the weapon at issue and has knowledge relevant to the mechanics of its discharge, or that he has performed any sort of examination of the defendant. His knowledge of the facts is based solely on the representations made to him by the defense, He has no expertise that places him in a better posture to understand the mindset of the defendant, or the facts surrounding the discharge of the weapon, than does the average juror, The alleged facts relevant to this inquiry are that on April 15, 2023, at approximately 9:45 pm, three motor vehicles drove up the defendant’s driveway. At approximately 9:51 pm a Monahan Decision and Order on Experts-2 |firearm was discharged. The defendant discharged that firearm two times, The defendant asserts that the second firing, which killed Kaylin Gillis, was an accidental discharge. It seems to the court, although it is not entirely clear, that the purpose of the experts is to say the defendant did not act recklessly with depraved indifference to human life (Penal Law section 125.25 [2]). To that end, defense counsel wants Doctor Isele to testify that based upon psychological testing, interviews with the defendant and his wife, and a review of witness statements, that the defendant's actions were “reflexive, automatic, and unintentional” and that his only intention was to protect himself and his wife. The doctor claims that the defendant's ‘sympathetic or fight or tlight response was triggered, Ihe relevance of this is in doubt as the defendant claims that the lethal shot was a product of an accident. However, the facts and circumstances leading up to the lethal shooting will likely be considered as part of the depraved indifference standard, Defense counsel states: “Mr. Cooper would not testify about the physiological structure of the human eye, but would testify that the effect of peripheral vision loss (i., the sight that lies outside of a person's direct line of vision) would, from a tactical perspective, make a person ‘more likely to stumble and fall because the subject would not see his or her footing or the terrain as well. Mr. Cooper would not testify to the causes of vasodilation and vasoconstriction except in the broadest possible terms, but would testify that they have an impact upon the human body in a tactical situation, causing greater strength in the upper body and lesser strength and coordination in the lower body. He would testify that the combination of peripheral vision loss and vasodilation/vasoconstriction would, in a high stress situation like Mr. Monahan was in on April 15, 2023, cause and/or contribute to a loss of footing which could lead to unintentional discharge of a weapon.” [Page 7 of defendant’s post-hearing submission.] “Expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” People v. Taylor, 15 NY2d 277, 288 [1990]. Under the facts and circumstances of this case, the proffered experts offer nothing relevant beyond the knowledge of a layperson, The defendant is not claiming justification, and as he was the initial aggressor, a justification charge would likely not be available, “The ‘initial aggressor” is the first person who uses or threatens the imminent use of physical force in a given encounter. However, even if someone is the initial aggressor with respect to mere physical force, another person may be the initial aggressor with respect to deadly physical force. If mere physical force is employed against a defendant, and the defendant responds by employing deadly physical force, ‘the term initial aggressor is properly defined as the first person in the encounter to use deadly physical force." (People v. Brown, 33 NY3d 316, 321 [NY 2019)), Defense counsel states “psychophysiology looks at how exposure to a stressful situation, such as Mr. Monahan was confronted with on April 15, 2023, will produce a result in the body, Monahan Decision and Order on Experts-3