People v Tsoucalas

[*1] People v Tsoucalas 2015 NY Slip Op 51818(U) Decided on December 14, 2015 County Court, Sullivan County LaBuda, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 14, 2015
County Court, Sullivan County

The People of the State of New York, Plaintiff,

against

George Tsoucalas, Defendant.



222-2010.



APPEARANCES:Jeremy Kaufman, Esq.

Gary Greenwald & Partners, PC

99 Brookside Avenue

Chester, NY 10918

Attorney for Defendant

Hon. James R. Farrell

Sullivan County District Attorney

414 Broadway

Monticello, NY 12701

By: Meagan K. Galligan, Executive ADA, of counsel

Attorney for the People
Frank J. LaBuda, J.

Defendant moves this Court, pursuant to CPL §730.50, for an order dismissing the indictment. The People have submitted an affirmation in opposition.

On or about October 27, 2010, a Sullivan County Grand Jury returned the within Indictment, charging Defendant with one count of Sexual Abuse in the First Degree (PL §130.65(3)) and one count of Endangering the Welfare of a Child (PL §260.10). Defendant was arraigned on the Indictment in Sullivan County Court over three years ago.

Less than two months after his arraignment on the instant charges, Defendant was committed to the custody of the Commissioner of the Office of Mental Health. He was committed on or about December 23, 2010. On or about November 25, 2011, Dawn Mulder, Principal Attorney at the Mid-Hudson Forensic Psychiatric Center (hereinafter, "MHFPC"), contacted this Court indicating an intention of making an application pursuant to CPL Article 730 for Defendant's retention. Defendant submitted a copy of the retention application, in which Peggy Healy, Executive Director of MHFPC, affirmed that Defendant "has been carefully [*2]observed and examined, and it is my opinion that the defendant continues to be an incapacitated person." At present, Defendant has indicated he is still an incapacitated person and resides full-time at the Sullivan County Adult Care Facility in Liberty, New York. His residence began there in July, 2013.

Defendant urges this Court to dismiss the Indictment on the ground he is mentally incompetent, legally incompetent, and unfit to stand trial, with no hope that his present mental situation will change or improve. Defendant relies on CPL §730.50, arguing that once a court determines a defendant charged with a felony is an "incapacitated person," it must issue an Order of Commitment for a period not to exceed one year. Whoever then has custody of said defendant can apply for an Order of Retention, to last up to two years, after the initial one year period expires, thereby keeping an incapacitated defendant confined. The total amount of time a defendant may be confined "must not exceed two-thirds of the authorized maximum term of imprisonment for the highest felony charged in the indictment." CPL §730.50(3). At such time, a criminal action pending against a defendant shall terminate for all purposes. CPL §730.50(4). The New York State Commissioner of Mental Health must then certify to the court and District Attorney that said defendant was in his or her custody on said expiration date. Upon receipt of such certification, the court must dismiss the indictment.

Defendant points out that he has been incapacitated for two-thirds of the authorized maximum term of imprisonment for the highest felony charged in the indictment—Sexual Abuse in the First Degree (PL §130.65(3)), a Class D violent felony. The maximum term of imprisonment for that charge is a seven year determinate sentence, which Defendant argues would require his release after four years and eight months, or no later than August 23, 2015. In light of the above-, Defendant requests that this Court direct the NYS Commissioner of Mental Health to certify that Defendant was in his or her custody on August 23, 2015, and to dismiss Indictment No. 222-2010.

The People argue that Defendant's motion to dismiss the indictment must be denied because Defendant's status was converted from criminal commitment to civil commitment, also known as a "Jackson" commitment. In fact, a defendant is not entitled to avail himself of a statutory dismissal pursuant to CPL §730.50, when such a conversion has occurred. People v. Lewis, 95 NY2d 539 [2000]. The People point out that Defendant's status was converted to a Jackson commitment, confirmed by a letter dated October 11, 2012, from Peggy Healy, Executive Director of MHFPC.

Additionally, the People argue that Defendant cannot make a motion for dismissal in the interest of justice when he was committed because he was unfit to stand trial. "[T]he fact that the examining psychiatrists found the defendant to be afflicted with mental problems upon assessing his fitness to stand trial does not entitle him to the extraordinary remedy of outright dismissal pursuant to CPL 210.40 (see People v. Lasdon 89 Misc 2d 934; cf., People v. Schaffer, 86 NY2d 460)." People v. Hudson, 217 AD2d 53, 56 [2nd Dept. 1995], lv denied 87 NY2d 1020 [1996].

This Court agrees with the People and denied Defendant's motion to dismiss Indictment #222-2010. The record and submissions before the Court do not contain a Reply on the part of Defendant challenging the conversion of his retention from criminal to that of civil. Therefore, because Defendant's commitment was converted to a Jackson commitment, this Court cannot dismiss the indictment pursuant to CPL §730.50.

Nor will this Court dismiss the indictment in the interest of justice. Defendant has failed to support his motion for dismissal in the interest of justice as a matter of law. See Hudson, supra.

Based on the foregoing, it is therefore

ORDERED that Defendant's motion to dismiss Sullivan County Indictment No. 222-2010 is denied in its entirety.

This shall constitute the Decision and Order of this Court.

DATED:December 14, 2015

Monticello, New York ____________________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge & Surrogate