Matter of Acevedo

[*1] Matter of Acevedo 2013 NY Slip Op 51370(U) Decided on August 23, 2013 County Court, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2013
County Court, Dutchess County

In the Matter of an Application for an Order of Retention Pursuant to the Criminal Procedure Law of Louis Acevedo, An Incapacitated Person.



1349/75



KIRSTEN A. RAPPLEYEA, ESQ.

Assistant District Attorney

WILLIAM V. GRADY, ESQ.

Dutchess County District Attorney

236 Main Street

Poughkeepsie, New York 12601

ARTHUR A. BAER, ESQ., Of Counsel

Lesley Della, Director of

MENTAL HYGIENE LEGAL SERVICE

Attorneys for LOUIS ACEVEDO

170 Old Country Road

Mineola, New York 11501

VINCENT BRADLEY, ESQ.

Assistant Attorney General

Eric Schneiderman

Attorney General of the State of New York

1 Civic Center Plaza, Suite 401

Poughkeepsie, New York 12601

James D. Pagones, J.

Mental Hygiene Legal Services for the Second Judicial Department (hereinafter "MHLS") as attorneys for Mr. Acevedo moves for an order: (1) restoring, or converting Louis Acevedo's status from CPL article 730.50 status, to civil status; and (2) dismissing the above entitled application for an order of retention, pursuant to CPLR 3211(a)(1) and (7).

The following papers were considered:

Notice of Motion-Affirmation-Affirmation of Service1-3

Exhibits 1-594-62

Exhibits 60-10163-104 [*2]

Affirmation in Answer to Respondent's Motion to105-106

Dismiss-Affidavit of Service

Reply Affirmation-Exhibit A-Affirmation of Service107-109

Upon the foregoing papers the motion is decided as follows:

Mr. Acevedo was indicted for murder in the Second Degree, in violation of Penal Law §125.25(1); Attempted Murder in the Second Degree in violation of Penal Law §§110.00 and 125.25(1); and Assault in the First Degree in violation of Penal Law §120.10(1). It is alleged that Mr. Acevedo, with intent to cause serious physical injury to Shelly Sperling, caused serious physical injury to Shelly Sperling on or about September 29, 1974. It is further alleged, in the indictment, that Mr. Acevedo, with the intent to cause the death of Shelly Sperling, caused the death of Shelly Sperling on or about February 18, 1975.

Mr. Acevedo has been involuntarily confined for a period of over thirty-eight (38) years. As noted by the movant, the last time a court determined that Mr. Acevedo had the capacity to stand trial was on March 16, 1979 and shortly thereafter, on March 28, 1979, he was found to lack capacity to proceed to trial and assist in his own defense. In 1980, notwithstanding an existing CPL article 730 order of retention, Orange County Court issued an order converting defendant from CPL article 730 status to civil status pursuant to Jackson v. Indiana, 406 US 715 (1972). Mr. Acevedo maintained civil status up until 1993, with the exception of a brief revocation in 1985. In 1993, he was again confined under CPL article 730. This status has remained unchanged since 1993.

In support of its motion on behalf of Mr. Acevedo, MHLS states that it is not constitutionally permissible to continue to retain Mr. Acevedo pursuant to CPL Article 730.50. MHLS relies on the United States Supreme Court holding in Jackson v. Indiana, supra.

In Jackson, the Supreme Court was faced with a question of constitutionality of certain aspects of Indiana's system for pretrial commitment of one accused of a crime. Petitioner, therein, was Theon Jackson a "mentally defective deaf mute with a mental level of a pre-school child" (Jackson v. Indiana at 717). At age 27, Mr. Jackson was charged with separate robberies of two women. In light of these charges and upon receipt of not-guilty pleas, the trial court set in motion the Indiana Procedures for determining competency to stand trial. The trial court ultimately found that Mr. Jackson lacked comprehension sufficient to make his defense and ordered him committed to the Indiana Department of Mental Health until such a time as that Department should certify to the court that Mr. Jackson was sane. Jackson's counsel filed a motion for a new trial arguing that the indefinite commitment deprived him of his Fourteenth Amendment [*3]rights to due process and equal protection and constituted cruel and unusual punishment under the Eighth Amendment made applicable to the states through the Fourteenth Amendment. The trial court denied the motion for a new trial, the Appellate Court affirmed this ruling, rehearing was denied and then the Supreme Court of the United States granted certiorari (see 401 US 973).

The Court's opinion, as delivered by Justice Blackmun, held that: "a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal."

The New York State Court of Appeals addressed the interplay between the Jackson decision and article 730 of the Criminal Procedure Law in People v. Schaffer, 86 NY2d 460 (1995), wherein the court held: "Reading as we mustJackson's constitutional requirements into article 730, a defendant in this State adjudicated incompetent is entitled to be released or civilly committed pursuant to article 9 of the Mental Hygiene Law upon a finding that the defendant's chances of achieving competency are minimal or nonexistent"

Here, the documentation and arguments proffered by MHLS and the District Attorneys' Office for the County of Dutchess, necessitate a Jackson hearing. A Jackson hearing involves the potential of a change in the commitment status of a person outside the four corners of article 730 of the Criminal Procedure Law (see People v. Elizabeth P., 34 Misc 3d 647 [Sup Ct, New York County 2011]). The sole issue at this hearing is whether or not there is a substantial probability that Mr. Acevedo will attain the capacity to proceed to trial in the foreseeable future. At the hearing, it is the burden of proof of the People to establish by a preponderance of the evidence that Mr. Acevedo will be competent to stand trial in the future for the crimes for which he is accused (see People v. Arendes, 92 Misc 2d 372 [Sup Ct, Queens County, 1977]). However, this Court notes that in the event that Mr. Acevedo is determined unlikely to achieve competency in the future, such defendant does not have a corollary right to dismissal of the charges given the public's countervailing interest in the court's continuing jurisdiction [*4]over the defendant to monitor the defendant's condition and location (see People v. Schaffer, 86 NY2d 460 [1995]).

Based upon the foregoing, a Jackson hearing shall be held to determine whether or not there exists a substantial probability that Mr. Acevedo will attain capacity to proceed in the foreseeable future. This hearing shall be held on October 2, 2013 at 10:00 a.m. Adjournments are only granted with leave of the Court. MHLS is directed to prepare an order, within thirty (30) days hereof, directing that Mr. Acevedo be produced before this Court on October 2, 2013.

This constitutes the decision and order of this Court.



Dated: Poughkeepsie, NY

August 23, 2013

ENTER

________________________________

HON. JAMES D. PAGONES

Acting Dutchess County Court Judge