People v B.D.

[*1] People v B.D. 2023 NY Slip Op 23141 Decided on May 9, 2023 Supreme Court, New York County Newbauer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 9, 2023
Supreme Court, New York County

The People of the State of New York,

against

B.D., Defendant.



Ind. No. 4656-2005



Assistant District Attorney Lauren R. Angelo, Manhattan District Attorney's Office

Rosemary Vassallo, Legal Aid Society, for B.D.

Assistant Attorney General Antwaun Gavins, NYS Office of the Attorney General, for OMH

Mary Beth Feerick, Mental Hygiene Legal Services
April A. Newbauer, J.

The Commissioner of the New York State Office of Mental Health, represented by the Office of the Attorney General, has moved for an order converting the defendant "to civil status pursuant to Jackson v. Indiana, 406 US 715 (1972), and granting such further relief as the court deems just and proper. The defendant's attorneys have opposed the motion, or in the alternative moved to dismiss the State's petition, though no petition was filed. The District Attorney's office filed a letter submission supporting the State's application, which has also been considered. See People v. Schaeffer, 86 NY2d 460 (1995). Upon review of the parties' submissions, the State's application is denied for lack of standing. There is no procedural mechanism for the State to intervene in this proceeding and request relief via motion and, more importantly, the State has no basis to seek relief under Jackson v. Indiana, a case advancing the rights of the accused under the Equal Protection and Due Process Clauses of the United States Constitution.

FACTS

B.D., 64 years old, was indicted for attempted murder in the second degree and related charges stemming from an incident on September 7, 2005. Defendant was initially examined pursuant to Criminal Procedure Law (CPL) §730 in 2005 and found unfit to stand trial pursuant to that examination in early 2006. Since 2006, B.D. has undergone 23 subsequent examinations and has been found fit six times, the last time in 2016. B.D. was again found unfit in January 2017 without the criminal case having progressed to trial, and has been subject to successive criminal retention orders since that time. See CPL 730.50(2). Defendant is receiving jail credit toward release at the expiration of two-thirds of his maximum sentence. See CPL §§730.50 (3) &(4). The parties agree that the defendant is unlikely to be found fit before the expiration of two-thirds of his authorized maximum sentence, which is approximately in September 2024.

[*2]CONCLUSIONS OF LAW

Standing

OMH lacks standing to file a motion in this case. Under New York law, there is no procedural vehicle for a nonparty to intervene or be joined in a criminal proceeding. A nonparty may only supplement the arguments made to a court by a party, by seeking leave to appear as amicus curiae. See People v. Combest, 4 NY3d 859 (2005). The Attorney General, representing OMH, states that it is initiating the process of converting the defendant from Article 730 status to civil status. The Attorney General does not cite to any authority explicitly permitting this procedure, although it was indirectly approved by some courts of coordinate jurisdiction. Those cases—reported and unreported—do not address how the State could act as a party and intervene by motion in a criminal proceeding. E.g., People v. Egle, 56 Misc 3d 1141 (SupCt Kings Co 2017). This court finds the State's motion for "Jackson relief" subject to dismissal for lack of standing without regard to its merits. However, to avoid the potential for a refiling via petition of some kind, the State's more substantive legal argument will be addressed.

Federal law

Research reveals that no other state has sought to leverage Jackson v. Indiana, 406 US 715 (1972) to its advantage [FN1] over a detained defendant's objection. Jackson v. Indiana is a case upholding the equal protection and due process rights of detainees under the United States Constitution. In the 1972 case before the Supreme Court of the United States, the plaintiff Jackson was found to lack sufficient comprehension to assist in his defense against charges of robbery. He had been committed under Indiana state law (Ind. Stat. Ann. §9-1706a) to the custody of Indiana's Department of Health until such time as he became competent to stand trial on the robbery charge. Jackson's counsel filed a motion—styled as one for a new trial—and argued for his release due to the extreme unlikelihood that Jackson could ever participate in his own defense. Counsel asserted that Jackson's ongoing confinement was tantamount to a lifetime sentence without a conviction, in violation of his equal protection and due process rights under the Fourteenth Amendment to the United States Constitution. The Supreme Court, noting that Jackson had served the maximum sentencing time under Indiana criminal law, found that the state could not continue to hold him in criminal detention awaiting trial and thus subject him to a more stringent standard for release than all others similarly situated, an equal protection violation. Id. See also Baxstrom v. Herold, 406 US 715 (1966). On similar grounds, the Court also held that Jackson's confinement did not meet the Fourteenth Amendment's guarantee of due process. Jackson v. Indiana, 406 US at 731. The Court observed that the Indiana statutory [*3]scheme was similar to federal laws regarding detention of a defendant lacking capacity to participate in a defense at trial. Federal circuit courts had found improper any straightforward application of the federal commitment statutes requiring confinement until such time as the defendant was competent, on the ground that indefinite confinement violated due process. See Id. at 733 (citing numerous cases since the high Court's discussion of this issue in Greenwood v. United States, 350 US 366 (1956)). The Supreme Court ultimately granted Jackson the relief he sought, releasing him to civil commitment, and Indiana was compelled to proceed under its civil commitment statute for ongoing orders retain Jackson civilly.

The Supreme Court in Jackson v. Indiana even noted with approval New York's then recently enacted statute —Criminal Procedure Law §730.50—because it mandated release and dismissal of charges against incompetent defendants after their commitment for two-thirds of their maximum potential prison sentence. Ironically, the New York State Attorney General is now seeking to lengthen B.D.'s incarceration through this precedent.

New York law

The New York Court of Appeals has called Jackson a procedural vehicle existing "parallel to" Article 730. See People v. Lewis, 95 NY2d 539 (2000). The way the two procedures play out is this: CPL §730.50(3) permits a defendant who has served two-thirds of the maximum sentence time under the indictment to seek dismissal. A defendant lacking capacity cannot seek relief earlier under the Criminal Procedure Law. The Court of Appeals in People v. Schaeffer, 86 NY2d 460 (1995), determined that a defendant could not use CPL §210.40 to have a case dismissed in the interest of justice even if it was extremely unlikely that the defendant could ever gain the mental capacity to stand trial on criminal charges. The defendant would have to wait the "two-thirds" time necessary in criminal confinement to qualify for dismissal under Article 730.

The Supreme Court's decision in Jackson v. Indiana, however, enables a defendant to seek early termination of criminal custody and transfer to civil commitment on the grounds that their capacity to stand trial will most likely never be realized. If the defendant does utilize and prevail under Jackson, the Court of Appeals has ruled the defendant cannot subsequently seek dismissal of the criminal proceeding at the two-thirds mark under CPL §730.50. See, People v. Lewis, 95 NY2d 539 (2000). In People v. Lewis, the court held that a defendant who had sought and received release to civil commitment under Jackson long before his maximum sentence expired could not use time periods of civil commitment to count towards dismissal time under Article 730. While a manslaughter charge was pending, the defendant Lewis had moved for and was granted release to civil commitment under Article 9 of the Mental Hygiene Law. He was thus no longer confined under a criminal order of commitment. When Lewis moved for release under the Criminal Procedure Law, having served two-thirds of his maximum authorized sentence, the Court of Appeals denied the motion. The court found that the many years the defendant spent in civil commitment did not count under Article 730. The two kinds of commitments were not interchangeable; only orders of commitment issued by a court exercising criminal jurisdiction fell under Article 730. The court pointed out that if a criminal defendant committed civilly is found not to constitute a danger to self or others, they would be subject to release (or, perhaps, bail or other securing order). Id. at 548. This is because defendants confined under the Criminal Procedure Law who lack capacity require continuous treatment, see CPL§730.50, but have a right to be treated in the least restrictive environment. See People ex [*4]rel. Jesse F. v. Bennett, 242 AD2d 342 (2d Dept 1997). Further, given the Court of Appeals' recent decision in People ex rel. Molinaro v. Warden, 39 NY3d 120 (2022), the treatment might have to be in a non-confinement setting, depending on what a court originally sets as the securing order in the criminal proceeding.

In contrast to the facts in People v. Lewis, 95 NY2d 539 (2000), the defendant here has been subject to criminal orders of commitment and has not sought Jackson relief himself. B.D. has therefore not removed himself from the running of the clock under "prescribed" periods of detention. B.D. asserts through counsel that he will seek to utilize the Article 730 release provisions when he has served two- thirds of his authorized imprisonment time. As the court recognized in People v. Elizabeth P., 34 Misc 2d 647 (Sup Ct NY Co 2009), to grant OMH's petition under the circumstances present here would not, in actuality or effect, be a grant of relief. Accord, People v. Juan A., (Unreported)(6409-2005)(Sup Ct Ny Co 2012)(Conviser, J.)[FN2] Not only would the defendant be deprived of his remedy under the Criminal Procedure Law, he would be charged for his care. While incapacitated defendants are not liable for their care and treatment under criminal commitment, see Mental Health Law §43.03, if transferred to civil commitment they become responsible. See State v. Patricia II, 6 NY3d 160 (2006). The Attorney General suggests that OMH could waive their lien on current and future resources if the defendant were indigent, that is a unilateral decision in the discretion of the agency. Since the parties agree that treatment does not generally change in state-run civil commitment, fiscal concerns may have indeed played a role in the State's decision to make this application.

The court declines to allow the state agency to use Jackson and this case as a procedural mechanism to short-circuit the procedure that exists under the Mental Hygiene Law. If the defendant is still not only incapable of assisting in his own defense at trial at the expiration of his two-thirds maximum time, but also a danger to himself or others, OMH could then use the appropriate civil procedure to have him civilly committed under the Mental Hygiene Law. B.D.'s criminal commitment may be 'fast receding into the past' (see People v. Igle, 56 Misc 3d 1141 (Sup Ct Kings Co 2017)), but that observation hardly gives the State license to weaponize Jackson and deny him the benefit of the operation of the Penal Law available to other defendants. Any deprivation of liberty, even one for twenty-four hours, triggers constitutional concern. "Once a state has granted prisoners a liberty interest due-process protections are necessary to ensure that the state-created right is not arbitrarily abrogated." Vitek v. Jones, 445 US 480, 489 (1980); see also People ex rel Maxian on Behalf of Rountree v. Brann, 77 NY2d 422 (1991). The Supreme Court stated, "[t]he harm to the individual is just as great if the State, without reasonable justification, can apply standards making [their] commitment a permanent one when standards generally applicable to all others afford [them] a substantial opportunity for early release." Jackson v. Indiana, 406 US 715, 729. Here, admittedly the commitment is not permanent, but relief under Jackson v. Indiana is a one-way street to protect the constitutional rights of the accused, something the State's application will not accomplish.

[*5]Conclusion

The motion by the New York State Attorney General on behalf of OMH is denied for lack of standing under the Criminal Procedure Law, and lack of standing under the constitutional precedent it seeks to enforce. This decision shall constitute the order of the court.

E N T E R

Dated: May 9, 2023

New York, New York

______________________________

April A. Newbauer

Acting Supreme Court Justice Footnotes

Footnote 1:During a conference, the State indicated that the impetus for its motion was the position of OMH that mental health treatment of the defendant over the course of five or more years had not rendered him fit to proceed in the criminal case, and that therefore the agency wished to discharge him from specialized detention for criminal defendants awaiting trial into more general civil custody; civil commitments are also supervised by the State but under a different branch of the agency and presumably an alternate funding source. The State maintains that if the defendant were resituated, in civil confinement, its staff could focus more on the defendant's actual mental conditions and less on his regaining the capacity to stand trial. That practical argument might certainly be persuasive to another defendant in another case, but has not moved defendant B.D. to join in the State's application or make one himaelf.

Footnote 2:The facts in People v. Chow, 2017 NYLJ LEXIS 3521(Sup Ct Richmond Co.) presented more difficulty because in that case, the defendant was completely uncommunicative with his counsel, rendering his ability to make decisions about his status impossible. However, the court appointed a guardian ad litem to represent the defendant's interests, and the guardian joined the motion for dismissal.