People v D.J.H.

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[*1] People v D.J.H. 2011 NY Slip Op 51514(U) Decided on August 3, 2011 Supreme Court, Queeens County Erlbaum, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 3, 2011
Supreme Court, Queeens County

The People of the State of New York


D.J.H., Defendant.



The defendant was represented at the hearing by Adam Bogin, Esq, of Mental Hygiene Legal Service. The State was represented by Assistant New York State Attorney General Jose Velez and Queens County Assistant District Attorney Michael P. Kavanaugh.

William M. Erlbaum, J.

The defendant, D.J.H., is charged under indictment number 1985/2006 with two counts of Criminal Possession of a Weapon in the Second Degree, and nine other related offenses. On June 28, 2006, the defendant was found not fit to proceed to trial pursuant to Article 730 of the Criminal Procedure Law, and was committed to the custody of the Commissioner of The Office of Mental Health. On July 6, 2006, the defendant was admitted to Mid-Hudson Forensic Psychiatric Center "for psychiatric treatment to restore his competence to stand trial" (see, Mid-Hudson Forensic Psychiatric Center report, dated June 17, 2010, page 1). The forensic professionals and staff at Mid-Hudson have concluded that the defendant "has been carefully observed and examined" and that it is their opinion that the "defendant continues to be an incapacitated person". The professionals at Mid-Hudson now request that this Court "enter an order adjudicating the defendant to be an incapacitated person and authorizing the retention of the ... defendant in the custody of the Commissioner of The Office of Mental Health for care and treatment..." (see, Application for Order of Retention, dated May 28, 2010). Mid-Hudson Psychiatric Center is seeking a two-year retention order. See, also, CPL 730.50.

The New York State Attorney General's Office has accepted the conclusion of Mid-Hudson that the defendant is not fit to proceed to trial; the defense has not,[FN1] and has moved for the CPL [*2]Article 730 hearing held herein.[FN2] Accordingly, pursuant to Criminal Procedure Law Article 730, a hearing was held before this Court on February 18, 2011, with oral arguments conducted on April 1, 2011 and June 9, 2011, so that a determination could be made as to the defendant's competency to stand trial. At the hearing, the State called Dr. Aruna Pal. The Court finds this witness to be credible. The report written by Dr. Pal was deemed in evidence and is contained in the court file.[FN3] The defendant also testified on his own behalf. The Court will now summarize the relevant testimony elicited at the hearing.

Upon questioning by the Assistant New York State Attorney General, Dr. Pal [FN4] testified that she completed a Model Competency

Report, dated June 17, 2010, regarding the defendant, and that she stands by her conclusions rendered in that report. She indicated that she has been working at Mid-Hudson Forensic Psychiatric Center for the last six years, and she has been the defendant's treating psychiatrist for approximately one year. Dr. Pal continued that the defendant is diagnosed as suffering from a delusional disorder, which means that he has a false belief that there is a conspiracy against him. The doctor [*3]explained that an individual with this diagnosis has persecutory [sic] and paranoid delusions. Dr. Pal testified that although the delusions may not be very bizarre, usually, at some point, the individual starts to deteriorate.

Dr. Pal testified that in her report she stated that the defendant is not fit for trial, or fit to go back to court and handle his case. She explained that the defendant has widespread persecutory [sic] or paranoid delusions; he believes that there is a pervasive conspiracy against him, and that those involved with the conspiracy, and who are against him, include federal judges, defense attorneys, district attorneys, criminal judges, and all personnel who are involved in his exams.[FN5] Accordingly, he lacks the capacity to work with his lawyer. Furthermore, Dr. Pal testified that the defendant is not able to withstand the stressors of trial. She explained that, because of his delusions, whenever plea options and courtroom procedures are discussed with the defendant, he becomes very irritable, extremely angry, hostile, and starts to lose his concentration and attention.

Upon questioning by the Court, Dr. Pal indicated that the defendant knows when he is in court, that he knows his lawyer, that he knows the attorneys who are representing the State and the hospital, that he knows there is a criminal case pending against him, that he is charged with possessing weapons, that he knows the judge, and that he knows he has choices to make concerning this case, such as whether to plead guilty or go to trial, and which defenses are available to him. Dr. Pal stated that cognition is not the defendant's problem, but his false beliefs are. She explained that the difference between the defendant and his false beliefs, and others entwined in the criminal justice system who also believe that authority figures are aligned against them, is that the defendant is unable to cooperate with his attorney, that he thinks his charges are fabricated and that he has been framed.

Dr. Pal indicated that the defendant has long held beliefs, which formed many years ago, that the government, the courts, basically everyone, is against him. Dr. Pal testified that the defendant's delusions are so far- fetched that they simply can not be true. She explained that, at some point in time, the defendant claims that he lost money and filed a civil law suit, and that the government did not help him. The defendant alleges that judges "changed the ink in [his] file" (see, the minutes, dated February 18, 2011, page 29, lines 20-21), that "they stole [*4]the file from his residence" (see, the minutes, dated February 18, 2011, page 29, line 21) and that people were sent to steal his papers and letters from him. The defendant further complains that all of this happened because he helped a neighborhood person who was on drugs. The defendant informed Dr. Pal that he told this person about his own drug habit, gave him shelter, and then complained to someone about him, which caused him to be framed for the instant crimes charged.

Dr. Pal testified that the defendant is unable to work with his attorney because of the defendant's mental illness. The doctor continued that if the defendant's attorney came to him with a plea bargain offer, the defendant would be unable to discuss this issue with his attorney, and come to a resolution of the matter. Dr. Pal stated that whenever her team, which includes a social worker who shares the same ethnic and religious background as the defendant, tries to discuss the issues of plea bargaining and courtroom procedure with the defendant, he becomes extremely angry, will not stay on topic, indicates that he needs to take a break, wonders why everyone is against him, and then starts to talk about his purported civil case, and why it is not resolved. Not only is the defendant unable to work with his attorney, but Dr. Pal indicated that he is unable to follow courtroom procedure. Dr. Pal testified that whenever the issue of a trial is discussed the defendant becomes very irritable and hostile and needs to be calmed down and handled in different ways, behavior indicating that the defendant cannot withstand the stress of a trial.

Upon questioning by the Queens County Assistant District Attorney, Dr. Pal testified that the defendant is not focused on his criminal case, that he is obsessed with his purported civil case, and that his delusions about such a civil case are impacting his criminal case.

Upon cross-examination by the defendant's attorney, Dr. Pal testified that part of the defendant's delusion is that the District Attorney is against him. While conceding that the job of the District Attorney is to prosecute the defendant, Dr. Pal testified that the defendant believes that everyone who is involved with the court system is against him. The doctor continued that the defendant is an Iranian Jew, and that the defendant says that all American Jews are against him because they did not help him in his case,[FN6] and that they are part of the conspiracy. Dr. Pal stated that it is fair to say that someone who came from Iran may have concerns about authority and government, although as far as the defendant is concerned, he [*5]left Iran when he was very young, when he was about 20 years old, and now he is about 62 years old. The doctor continued that the defendant's beliefs are not against authority figures, but that all the rabbis and American Jews are against him. The doctor elaborated that the defendant has even tried to write different letters to different people asking why the government is against him.

Dr. Pal testified that the defendant is facing serious criminal charges. Colloquy between the Court, Court Clerk, and the People at this point in the proceedings (see, the minutes, dated February 18, 2011, pages 39- 40) established that the highest level offense the defendant has been indicted for is Criminal Possession of a Weapon in the Second Degree, a C level felony, and that if he were convicted after trial he would be facing 15 years incarceration. The parties agreed that the defendant has spent five years in custody, still has his presumption of innocence, in that he has not pled guilty nor been convicted after trial, and that if he is found to be incompetent now, he could still spend another five years hospitalized in a secure facility, such as Mid-Hudson, without having relinquished his presumption of innocence.[FN7]

Dr. Pal testified that she is familiar with an attorney named Dawn Mulder who works in the same office as defendant's counsel at this hearing, Mr. Bogin. Dr. Pal stated that she had the opportunity to observe Ms. Mulder speaking with the defendant, and that she and the defendant got along well. When asked if the defendant gets along with his criminal defense attorney, Dr. Pal indicated that they get along well in the sense that there are no violence- related issues, however, whenever the defendant's charges and plea options are discussed, his behavior reverts back to how the doctor previously described it. When questioned by the Court, Dr. Pal testified that the defendant's behavior in court is appropriate, that he seems to have a comfortable situation with Mr. Bogin, and that he does not seem [*6]to think that Mr. Bogin is part of any conspiracy.

Dr. Pal testified that in June, 2010, the hospital made an application in Supreme Court, Orange County, to have the defendant medicated over his objection. The doctor stated that the hospital was seeking to have the defendant take Risperidone,[FN8] as well as other medications. Dr. Pal indicated that she testified at the hearing that the defendant lacked capacity to make reasonable decisions with regard to his treatment. The hospital's request was denied, and the defendant is therefore not taking any of the medications that the hospital sought to have him treated with. Dr. Pal indicated that the judge in that proceeding concluded that the defendant was capable of exercising his autonomy in making a rational decision as to whether he wanted the medication, that the defendant made a decision that he did not want it, and that the judge felt that it should be respected.[FN9] The hospital made the application to medicate the defendant over his objection believing that it could help the defendant's psychiatric illness, competency, and quality of life. However, the hospital claimed that it did not appeal the court's denial because the hospital was concerned about the defendant harming himself, in that Dr. Pal testified that the defendant threatened to kill himself if any medication was given to him.

Dr. Pal testified that this competency hearing concerns the defendant's second admission to Mid-Hudson, and that the hospital found the defendant fit to proceed one time in the past. Dr. Pal testified that the defendant is not currently taking any psychotropic medications.

Upon questioning by the Court, Dr. Pal testified that should [*7]this matter proceed to trial, the defendant would not appreciate the issues at hand, such as the question of whether the defendant was in possession of the weapons charged in the indictment. Dr. Pal indicated that the District Attorney's Office is in possession of evidence of the defendant buying weapons, yet when the defendant was asked about it, he stated that he was buying cigarettes.[FN10] Dr. Pal testified that the defendant's psychosis started many years ago, maybe 20- 25 years ago. Dr. Pal stated that the defendant is delusional, and that those delusions are part of his psychosis. The doctor stated that the defendant does not have hallucinations, but has false ideas or beliefs.[FN11]

The State then rested its case.

The defendant testified on his own behalf. The defendant stated, when asked by counsel, where he was, that he was in competency court [sic]. The defendant testified that it was his desire to go to trial, instead of back to the hospital. The defendant indicated that he wants a trial to prove things, and to subpoena witnesses who know the truth, but are afraid to testify. The Court then explained to the defendant that he does not have the burden of proof at a trial, but that it is the People's responsibility to prove his guilt beyond a reasonable doubt. The defendant stated that he understood.

The defendant testified that he was born in Tehran, Iran that he came to the United States in 1973, and that he spent 10 years in Israel. The defendant stated that he has never taken any medication in his life. He indicated that he understands that there are criminal charges pending against him, that the role of his lawyer is to protect him, that it is the job of the Assistant District Attorney to prosecute the case, and it is the job of the judge to control the courtroom and impose punishment. When asked by the Court if he believed that the Court was conspiring against him, the defendant replied that the Court is a very respectful judge, and that he wishes the Court all the best, [*8]and hopes the others are like him. The Court continued questioning the defendant wherein the defendant indicated that he does not believe that Mr. Bogin is conspiring against him, that Mr. Bogin works with him in a good way, as does "Mid-Hudson Legal Aid Lawyer" Dawn Mulder (see, the minutes, dated February 18, 2011, page 80, line 20). The defendant stated that Ms. Mulder was very good to him. The Court then asked the defendant if he believed that the Court, Mr. Bogin, or Ms. Mulder were conspiring against him, and the defendant replied no.

Upon cross-examination by the Assistant Attorney General, the defendant testified [FN12] that he does not have a mental illness. The defendant indicated that he heard Dr. Pal's testimony wherein she stated that he was unfit for trial, and she claims it is because of mental illness. The defendant continued that six months ago, the doctors took him to court for medication. The defendant stated that Dr. Pal and another doctor told him that they knew that nothing was wrong with him, that he is competent, that he does not have delusions, that he knows what he is doing, and that he should go back to court. The defendant said that the staff was to send him back. The defendant testified that that was the fourth time he was going back to court, and then Dr. Pal said to him that she knew that he did not need medication, but another doctor was forcing her to medicate him, and that is why she went to court for medication.

The defendant indicated that what is happening at Mid-Hudson is a cover-up. The doctors and staff work as a team, and "if one of them says that one is wrong, all of them say, yes, he is right" (see, the minutes, dated February 18, 2011 at page 82).When asked what that meant, the defendant replied, they "are covering each other. If one said this man is bad, all the others, they know he is bad" (see, the minutes, dated February 18, 2011, at page 83). The defendant stated that "covering the crime or covering for each other is as bad as the crime itself" (see, the minutes, dated February 18, 2011, at page 83).

The defendant testified that he does not say that Dr. Pal is against him, but that she follows whatever Dr. Shivashankar [FN13] asks her to do, that she does not follow her own mind, but the mind of Dr. Shivashankar. When asked if Dr. Shivashankar is [*9]against him, the defendant replied that he knows several patients who did not need medication, but they [presumably the hospital] went to court, lied against the patients, and then medicated them. The defendant agreed when the Court asked him if he means that medication is used as a management tool, to make someone compliant.

The defendant testified that he heard Dr. Pal testify that he is confused between his criminal case and his civil case. The defendant stated that he wants to subpoena witnesses, and rabbis, to show that the FBI came to his house numerous times, that people were threatening him to stop writing to the media and to politicians, and that a very big crime was committed against him. The defendant continued that he went to Rabbinical Court, but they did not believe him, that he was to have a final trial, that a man named Moishe Tannenbaum accompanied him to court, and that the "original complaint was written, was over there, and the note of the magistrate, who determines in regard to my phone conversation tape, and it was handwriting, it was Naomi Buchwald,[FN14] and it was written with her handwriting exactly the way I said to the Rabbinical Court transcript, they gave me, we are back to, everybody had a right to his money except himself" and that even "if his lawyer told him not, told him to tape, this is not ethical but admissible" [sic] (see, the minutes, dated February 18, 2011, at page 89).

The defendant then stated that his civil matter and criminal matter are connected because he was framed in his criminal case because of the civil case. The Court then asked the defendant if he understood the concern of the parties involved in this case, that they are concerned that no matter what happened to the defendant regarding the FBI, or his claims that he has a financial claim against others, that there does not seem to be any connection between those claims and a charge of having weapons in his apartment. The Court continued that the parties are concerned that the defendant is linking it altogether. The defendant then replied that he did not have weapons in his apartment, that he only tried to help someone.

The defendant was then asked if he understood that Dr. Pal testified that he is having a hard time working with his criminal defense attorney. The defendant replied in the affirmative, adding that the attorney is a woman. The defendant then testified that this attorney told him that she interviewed many people and found out that there was a conspiracy against him, but then changed her mind and said that there was not a conspiracy against [*10]him, but that he has delusions. She then sent him to Bellevue. The defendant continued that Bellevue said nothing was wrong with him, and that he was sent back to Rikers Island. Then, a month later, he was sent back to Bellevue. The defendant testified that the doctor talked to him and said that nothing was wrong with him. The defendant stated that the doctor wanted to send him back to Rikers, but that a captain at Rikers told the doctor to read a letter, which indicated that at night the defendant was "walking, screaming and fighting with people which was untrue. I never fighted with anybody. I never go up at night and walk, and I never scream at anybody so they kept me" (see, the minutes, dated February 18, 2011, at page 98). The defendant continued that he asked them to call the Jewish Press, and that "when I was in Mid-Hudson, Miss Pam answer the social worker, and she said to the social worker, we know D.J.H. and what they did to him is unforgettable and unforgivable, and we know he was going to buy real estate, they release, they release his money" (see, the minutes, dated February 18, 2011, at page 98). The defendant continued that he needed copies of documents from a gentleman who has a hedge fund, and that when he called him, he said to the defendant, "Mr. D.J.H., is this you? I said yes, who are you? He said my father, retired, when he passed all the accounts went to me. How they railroad you from early young age" (see, the minutes, dated February 18, 2011, at page 98). The defendant testified that his social worker "put everything in my chart, but Dr. Shivahankar took everything out. Truth leaked over there." (see, the minutes, dated February 18, 2011, at page 99).

Upon cross-examination by the Assistant District Attorney, the defendant indicated that after he returned from Mid-Hudson the second time, he was assigned a different criminal defense attorney, in that he moved to disqualify his first lawyer because she would not let him testify before the Grand Jury. The defendant stated that he did not want the second criminal defense attorney. The defendant continued that when he was sent to Mid-Hudson, this second criminal defense attorney talked to the doctors and told them not to release him until he accepts her as his lawyer, but he refused to do so. The defendant said that this second lawyer sent him a letter saying he will not be deported because no country would accept him, and that he should accept time served. The defendant stated he did not want time served, and that he does not know if his parents are alive. The Court then asked the defendant if he were offered a plea bargain of time served, to which the defendant replied that that offer was made to him four times, but he wants to "go to the jury and bring everything up. I have a right to do that because I follow my religion. According to my religion, when you know something and you don't open your mouth, you become part of the crime. It is written." (see, the minutes, dated February 18, 2011, at page [*11]101).

The defendant testified that he understands that he might not be able to bring out at a trial everything he would like. The defendant continued that he will listen to his attorney, but that does not mean that he will agree with everything his attorney says. The defendant testified that he will try his best to have a respectful dialogue with an attorney even though he may have a different point of view, that an attorney has a right to state his views. The defendant stated that he would not yell at nor assault his attorney if he is told by the attorney that his views on the law are incorrect or that he is being self-destructive. The defendant said that he will consider the attorney's point of view.

Upon re-direct examination, the defendant testified that he has more freedom at Rikers Island than at Mid-Hudson, and that he is good [sic] at Rikers Island.

The defense then rested its case.


The sole issue before the Court is whether or not the defendant is fit to proceed to trial. In People v. Mendez (1 NY3d 15 [2003]), the Court of Appeals held that the test for competence is set forth in CPL 710.10(1), which provides that an "incapacitated person" is defined as "a defendant who, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist in his own defense" (CPL §730.10[1]). The Court further held that "for purposes of due process, the United States Supreme Court has explained that the defendant must have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and...a rational as well as factual understanding of the proceedings against him'" (id. at p. 19, citing Dusky v. United States, 362 US 402 [1960]). Factors to be considered in determining competence include whether the defendant: "(1) is oriented as to time and place; (2) is able to perceive, recall and relate; (3) has an understanding of the process of the trial and the roles of Judge, jury, prosecutor and defense attorney; (4) can establish a working relationship with his attorney; (5) has sufficient intelligence and judgement to listen to the advice of counsel and, based on that advice, appreciate (without necessarily adopting) the fact that one course of conduct may be more beneficial to him then another; (6) is sufficiently stable to enable him to withstand the stresses of the trial without suffering a serious or prolonged or permanent breakdown" (see, People v. Picozzi, 106 AD2d 413, 414 [2nd Dept 1984]). See also, People v. Valentino, 78 Misc 2d 678 [1974].Finally, the Mendez Court found that the People bear the [*12]burden of proving competency "by a preponderance of the evidence" (id.; see also, People v. Troy, 28 AD3d 689 [2d Dept 2006], leave denied, 7 NY3d 852 [2006]).

In the opinion of the Court, based upon the totality of the evidence set forth by both parties, the defendant's competence within the meaning of the Criminal Procedure Law has been established. It is clear that the defendant is oriented as to person, place, and time. During the instant hearing, the defendant knew he was in court, and he knew he was there for a competency hearing. The defendant is able to perceive, recall, and relate, and the Court finds that the defendant knows his personal history. It was clear from the testimony adduced at the hearing that the defendant clearly understands the trial process, his options, the roles of the attorneys and the Court, and who each of these players is. The defendant indicated that he understands that the People have the burden of proof at a trial, that there are rules at trial, and that he may not be able to introduce into evidence all the facts that he may wish. The defendant knows the charges against him, stated that he wanted a trial, that he wanted to defend himself against the pending charges, and he denied having weapons in his apartment, which is the basis for the instant indictment.

The Court finds that the evidence presented at the hearing demonstrates that the defendant is able to work with a criminal defense attorney. Although Dr. Pal testified that the defendant can not do so, the Court does not find her claim to be compelling. The defendant worked quite well with his attorney at the instant hearing, denied that this attorney was involved in any conspiracy against him, and the testimony demonstrated that he also worked well with another Mental Hygiene Legal Service attorney, Dawn Mulder. The Court finds no merit in Dr. Pal's apparent position that the defendant can work with a Mental Hygiene lawyer but not a defense attorney, and is not prepared to make the finding that the defendant can work with one type of attorney but not another. Furthermore, the defendant himself testified that he will work with his attorney at trial, and that although he may not agree with everything his attorney states, he will listen to his counsel and consider his point of view. It is of no consequence that the record indicates that the defendant requested that two prior criminal attorneys no longer be permitted to represent him. This Court has had countless defendants over the years appear before the bench who have been represented by a succession of attorneys. This factor alone is certainly not an indication of incompetence, but sometimes, personalities are a factor in representation and the right fit between attorney and client must be made. The Court finds that to be the case here.

Furthermore, although Dr. Pal testified that the defendant is unable to withstand the stressors of trial, the Court, again, must disagree with her opinion. During the course of this hearing, the [*13]defendant behaved in the most appropriate manner. He was not, at any point, disruptive, disrespectful, or impatient. He participated in the hearing, not only by listening, but by way of giving testimony, and answering the questions that were asked of him. At no point did the defendant appear to decompensate, lose interest in the matter, become physically ill, or mentally detached. In fact, the defendant demonstrated to this Court that he can withstand the stressors of trial. It must be noted that "competency, in the final analysis, is a legal issue which must be determined by the court..." (see, People v. Valentino, 78 Misc 2d 678, 680 [1974]; see also, People v. Sanabria, 266 AD2d 41 [1st Dept 1999], leave denied, 94 NY2d 884 [2000]), and the Court may utilize its own observations as to such a finding (see, People v. Gensler, 72 NY2d 239 [1988]. In this case, the Court's own observations of the defendant are indicative of a finding of fitness.

The Court acknowledges Dr. Pal's opinion that the defendant suffers from delusions which make him feel as if a pervasive conspiracy is pending against him, and her belief that, because of these delusions, when the concept of a trial is discussed, the defendant becomes irritable, angry, hostile, and starts to lose his concentration and attention. However, the Court does not agree that the defendant's alleged delusions render him unfit to proceed to trial in this case.

It is Dr. Pal's opinion that the defendant is suffering from delusions because his ideas and the things he talks about are so far-fetched, they can not possibly be true. The Court is not taking the position in this opinion that the defendant's beliefs are or are not true. However, when the State is seeking to retain the defendant in a case such as this, based solely on a defendant's supposed delusions, one would expect that certain investigations are conducted so that it can be established, with some degree of certainty that the defendant is delusional. Such investigations were not conducted in this case (see, the minutes of oral argument, dated June 29, 2011). For example, the defendant claims that he suffered a financial loss that he was unable to redress, yet it appears that no thorough or substantial investigation [FN15] was conducted by either the defense or the People as to whether or not [*14]the defendant was a victim of a financial crime.[FN16] Furthermore, it appears that no investigation was done as to the defendant's other claims, such as taking in and supposedly helping a neighbor, or the loss of some evidence in a civil matter. See, the minutes, dated June 29, 2011, at pages 8- 11. It is troubling to the Court that Dr. Pal can state that the defendant is delusional without having the benefit of any completed investigation to determine that his circumstances and views are indeed completely false.[FN17]

Additionally, Dr. Pal states that the defendant thinks everyone is against him, and includes the State in this group. However, it is clear that the State in this case is against the defendant. Not only is the State prosecuting the defendant for the crimes charged, but the State's position in this competency hearing is to have the defendant be again found unfit, and retained at Mid- Hudson. This position is completely opposite of the defendant's position, in that he is ready to go to trial on this matter. Clearly, the defendant's belief in this regard is not altogether delusional. Also, the Court notes the defendant's testimony wherein he indicated that he believed that Mid-Hudson medicates patients against their will, and uses medication as a management tool, to handle the patients. Again, any belief that the defendant may hold that the hospital is against him, also, is not altogether [*15]delusional.

Simply because a defendant may become, as Dr. Pal indicated, irritable, angry, hostile, and unfocused, does not render him unfit. The Court does recognize that the defendant's testimony was at times erratic and difficult to understand, however, in finding that the defendant has the capacity to be tried, the Court is not suggesting that the defendant is not in any way mentally impaired. It is settled law that a defendant may be suffering from psychiatric illness, and not be incapacitated under CPL Article 730 (See, People v. Ciborowski, 302 AD2d 620 [3d Dept 2003], appeal denied, 100 NY2d 579 [2003]; People v. Shiffer, 256 AD2d 818 [3d Dept 1998], appeal denied, 93 NY2d 878 [1999]; People v. Harris, 109 AD2d 351 [2d Dept 1985]; People v. Surdis, 23 AD3d 841 [3d Dept 2005]; People v. Stonis, 246 AD2d 911 [3d Dept 1998], appeal denied, 92 NY2d 883 [1998]). Mental illness and competence are distinguishable concepts.

It must be noted that the Court is deeply troubled by this case. The defendant has been hospitalized in a secure psychiatric facility for five years, without having been convicted of any crime, without having his day in court, and without any end in sight. For the People indicated that the defendant refused any plea in this matter (see, the minutes, dated April 1, 2011, page 31), and the defendant himself indicated that he is uninterested in a plea which would include a time served sentence (see, the minutes, dated February 18, 2011, pages 100- 101). Although Dr. Pal testified that the defendant is suffering from a delusional disorder, her testimony is filled with mostly conclusory, unspecific, and non-detailed statements that this disorder renders him unfit. Furthermore, she fails to suggest any treatment plan for helping the defendant achieve, what in her mind would be, competency. So this Court is left to wonder, what is going to change for this defendant so he may eventually be able to settle this matter? Will the defendant have no choice but to spend another five years in a secure psychiatric hospital without ever having been convicted of a crime (see, footnote 7, supra)? The Court finds that that distressing outcome will not be the eventual result in this case. Now is the time for this case to be tried, and for the defendant to finally have his day in court.

Based upon the foregoing, the defendant is found to NOT be an incapacitated person pursuant to Article CPL 730. The Court finds him fit to proceed to trial, and Mid-Hudson Psychiatric Center's application, pursuant to CPL 730.50, seeking a two-year retention order is hereby denied.

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant, to the Attorney General, and to the District Attorney.

.............................WILLIAM M. ERLBAUM, J.S.C.

Dated: August 3, 2011


Footnote 1: For the purposes of this hearing, the defendant is represented by the State of New York Mental Hygiene Legal Service. The defendant will be represented by a criminal defense attorney should he be found competent and his criminal prosecution proceeds.

Footnote 2: The State's interests are represented by two different offices. The Queens County District's Attorney's Office represents the People of Queens County, in that the crime charged occurred in their jurisdiction. The Commissioner of Mental Health, and in turn The Office of Mental Health, as well as Mid-Hudson Psychiatric Center, are represented by the Office of the New York State Attorney General. It is not unusual for these two offices to work together, as they did in this case, in this type of hearing. Although the Queens County District Attorney's Office participated in this hearing, the DA's office takes no position as to the ultimate question presented, which is, if the defendant is fit to proceed to trial.

Footnote 3: The defendant's entire medical record, including prior CPL 730 reports written concerning the defendant, were deemed admitted into evidence for each side to use in questioning the witnesses and in making argument to the Court. CPL Article 730 reports, dated September 19, 2005, September 20, 2005, and two reports dated May 26, 2006, are contained in the court file.

Footnote 4: Dr. Pal was accepted by the Court as an expert in the field of psychiatry.

Footnote 5: Although not stated in the testimony, the Court presumes Dr. Pal is referring to the defendant's competency exams, as well as psychiatric examinations administered to him in the hospital.

Footnote 6: The Court presumes that the doctor is referring to the defendant's alleged civil case.

Footnote 7: "[W]hen a defendant who has not yet attained competency has been in the custody of the Commissioner [of Mental Health] for a period totalling two thirds of the maximum term of imprisonment for the highest class felony charged in the indictment... the order committing the defendant shall terminate for all purposes and the court must dismiss the indictment. Thus, a defendant cannotbased solely on incompetencybe held for a period longer than two thirds of the maximum sentence (in the absence of a subsequent civil commitment)." See, People v. Schaffer, 86NY2d460 [1995]. See also, CPL 730.50[3][4][5].


Footnote 8: Risperidone is an antipsychotic medication. See,

Footnote 9: The defense has provided the Court with a set of minutes, dated June 9, 2010, from New York State Supreme Court, Orange County (Slobod, J.), concerning the issue of medicating the defendant against his wishes. A review of said minutes reflects that Mid-Hudson's application to medicate the defendant was denied based upon a finding by the Orange County Supreme Court that some of the medications the hospital sought to prescribe for the defendant were for symptoms he did not suffer from, that other medication they sought to prescribe for the defendant had been used to treat him in the past, with no effect, that the hospital's proposal was not tailored to meet the defendant's needs, and that the hospital had not made a final determination as to the defendant's competence, after two doctors, in early 2010, recommended he be found competent.

Footnote 10: The People's response to the defendant's Request for a Bill of Particulars and Demand for Discovery, which is included in their "Affirmation in Opposition" dated April 17, 2006, as well as an affidavit for a search warrant, dated May 9, 2005, and attached to this same "Affirmation in Opposition" indicate that the People are in possession of recordings allegedly demonstrating the defendant's involvement in purchasing weapons.

Footnote 11: A hallucination is "a sensory experience of something that does not exist outside the mind, caused by various physical and mental disorders, or by reaction to certain toxic substances, and usually manifested as visual or auditory images"; a delusion is "a false belief or opinion" (see,

Footnote 12: The Court notes that the defendant has a heavy accent and that although he speaks and understands English, he also speaks Hebrew and Persian.

Footnote 13: A letter dated June 21, 2010, regarding Mid-Hudson's application for an Order of Retention for the defendant, located in the court file, indicates that Dr. Gowramma Shivashankar is the director of Clinical Services at Mid-Hudson.

Footnote 14: Honorable Naomi Buchwald is a federal judge sitting in the United States District Court, Southern District of New York. See,

Footnote 15: The minutes of oral argument conducted on June 29, 2011, at page 9, reflect that the District Attorney's Office "may have something in [their] files referencing that [financial] investigation". However, no further information was provided to the Court, and clearly, this notation does not reflect an intense, substantive investigation.

Footnote 16: The Court notes that the minutes from Supreme Court, Orange County, dated June 9, 2010, at pages 23- 24, indicate that the defendant at one point was a wealthy man, that he lost all his money, and brought many lawsuits to try to have that money returned to him. See also, oral argument minutes, date June 29, 2011, pages 9- 10.

Footnote 17: The Court notes the phenomenon known as the Martha Mitchell effect. Mrs. Mitchell was the wife of President Nixon's attorney general, John Mitchell. She alleged that officials in the Nixon White House were engaged in illegal activities, but her claims were attributed to mental illness. The doctors opined that she was delusional. However, after the Watergate scandal was revealed, she was vindicated. The Martha Mitchell effect is the process whereby a mental health care provider mistakes what a patient is saying as delusional, because his statements are improbable, or unable to be verified, and the patient is then misdiagnosed. See, Wikipedia, the free encyclopedia, Martha Mitchell effect, effect; see also, minutes of oral argument, dated June 29, 2011, page 11. Although the Court is not finding that the defendant is a victim of the Martha Mitchell effect, the Court does find that the defendant's claims and statements can not be discounted simply because they are improbable or unverified.