When the court orders a psychiatric examination pursuant to article 730 of the Criminal Procedure Law (730 examination), the longstanding practice has been to either remand or set significant bail on the defendant unless the court is assured the defendant will appear for the examination. Although this practice is not without its critics, judges arraigning individuals who appear unfit and who are perhaps homeless or with no community ties have good reason to think the individual is at very high risk for failure to appear for a 730 evaluation if released on recognizance.

This practice is sure to be tested under the comprehensive overhaul of New York's bail system signed into law by Gov. Andrew Cuomo on April 1, 2019. L. 2019, c. 59, effective Jan. 1, 2020. The new bail statute drastically changed the bail statute by eliminating cash bail in most cases. However, it did not amend CPL article 730 and is silent as to the type of securing order the court may issue when ordering a 730 examination. Part 1 of this article discusses whether a defendant who appears unfit can still be remanded or have bail set under the new statute; and if not, whether other options are available to facilitate a successful completion of a 730 examination, as will be discussed in Part 2.

The New Bail Statute

The new bail statute creates two categories of offenses, "qualifying" and "non-qualifying." The "qualifying" offenses include certain violent felonies, sex offenses, and other non-violent crimes such as money laundering, witness intimidation or witness tampering, and criminal contempt. CPL §§530.20 (1) (b) (i)-(ix) (effective Jan. 1, 2020). When the defendant is charged with a "qualifying" offense, the court "may in its discretion release the principal pending trial on the principal's own recognizance or under non-monetary conditions, fix bail" or remand if the defendant is charged with a qualifying felony offense. CPL §530.20 (1) (b) (effective Jan. 1, 2020); CPL §510.10 (4).

When a person is charged with a "non-qualifying" offense, the statute provides that the court "shall release principal pending trial on the principal's own recognizance." CPL §530.20 (1) (a) (effective Jan. 1, 2020) (emphasis added). Even when the court believes that more is required to ensure the defendant's return, the statute mandates the court to release the principal under "non-monetary conditions" and "selecting the least restrictive alternative and conditions that will reasonably assure the principal's return to court." Id. The definition of "non-monetary conditions" was also added. CPL §500.10 (3-a) (effective Jan. 1, 2020). It means choosing "the least restrictive conditions that will reasonably assure the principal's return to court" including, but not limited to, requiring the defendants to check in with a pretrial services agency, imposing travel restrictions, and requiring electronic monitoring. Id.

Release under non-monetary conditions may be revoked when a narrowly-defined triggering event occurs. In such circumstances, bail may be fixed (CPL §530.60 (2) (b) (i)-(iv) (effective Jan. 1, 2020). Although the statute provides an exhaustive list, the failure or refusal to participate in a court-ordered 730 examination is not a triggering event. Further, while the court could perhaps use its contempt power to incarcerate a defendant who refuses to appear for a 730 examination, so long as the defendant continues to appear in court when required, the statute does not provide the court with authority to remand or set bail on a defendant charged with a non-qualifying offense.

The Pattern and Practice: 730 Examinations and Remand

Currently, it is customary for the courts to remand defendants upon issuance of a 730 order. In the case of misdemeanors, this practice contradicts the plain language of CPL §530.20 (1), which requires the courts to "order recognizance or bail." See also CPL §530.40 (1) (indicted case). It is unclear when the practice of remanding defendants began or when it became acceptable, but it was first noted by the Court of Appeals in In Matter of LaBelle, 79 N.Y.2d 350 (1992).

LaBelle was a judicial conduct case where the State Commission on Judicial Conduct found that a judge's decisions to remand misdemeanor defendants with pending 730 examinations were, among others, an abuse of bail process. After noting that "[t]he Commission may be correct," the Court of Appeals held that subdivisions two and three of CPL §730.20 "provide some support for petitioner's position that he is vested with discretion to determine whether a defendant should be confined, either in jail or in a hospital, pending a psychiatric report." Id.

Specifically, CPL §730.20 provides that if the defendant is "not in custody" at the time of the order, "the court may direct that the examination be conducted on an out-patient basis, and at such time and place as the director shall designate." CPL §730.20 (2); see also CPL §730.10 (4) (definition of a director). If the defendant is "in custody" at the time of the order, "the examination must be conducted at the place where the defendant is being held in custody." CPL §730.20 (3). Under both circumstances, if the "director" informs the court that hospital confinement is necessary for an effective examination, the court may order the defendant to be confined until the examination is completed. CPL §§730.20 (2), (3).

These statutes, if read narrowly, seems to allow for hospital confinement only upon recommendation by an appropriate director. On the other hand, as discussed in more detail below, if construed broadly, it arguably allows for incarceration. In LaBelle, the Court of Appeals declined to endorse a particular interpretation, choosing instead to leave the decision for the right case in the future and merely acknowledged the ambiguity.

Since LaBelle, only two trial-court level cases have been published on the topic of whether judges may remand misdemeanor defendants upon issuance of a 730 order. The first is People v. Giannelli, 189 Misc.2d 366 (Just. Ct., Westchester County 2001). In Giannelli, the defendant was charged with criminal contempt and related charges on allegations that he had harassed his father in violation of an order of protection. As justification for remanding the defendant upon issuance of a 730 examination, the court explained that there was "no reasonable likelihood that if the defendant were released on bail or recognizance, he would cooperate in any way with a court-ordered psychiatric examination." Id. at 367. The court noted that the defendant exhibited clear signs of mental illness in court, had another open case with his father, was found by a program case manager to be unreceptive to mental health treatment, and was physically larger and stronger than his parents who could not control him and who therefore requested a psychiatric evaluation. Id. On this record, the court held, "[a]lthough there is no express statutory or case law authority excepting court-ordered psychiatric examinations from the requirement of bail in misdemeanor cases, a custodial examination should be ordered to effect the purpose of CPL article 730 when a defendant, as here, appears unlikely to cooperate." Id. at 368. As independent support for remand, the court also noted that CPL §530.12 (11) (a) authorizes remand for defendants who fail to obey a lawful order of protection issued for victims of family offenses.

The second relevant decision is People v. Wilboiner, 35 Misc.3d 193 (Crim. Ct., Kings County 2012). In Wilboiner, the defendant was arrested for trespass and released with an order of protection in favor of the property owner. While the original case was pending, he was rearrested for violating the order of protection as well as other misdemeanor charges. At arraignment on the second case, and at the defense request, the court ordered a 730 examination with remand. Three weeks later, examiners requested more time to complete the report, and the court granted their request over defense counsel's objection that CPL §530.20 (1) did not authorize remand.

In explaining its rationale for remand, the court distinguished securing orders issued pursuant to CPL article 530 and those issued pursuant to CPL article 730. In contrast to article 530.20 which "defaults to release," the court noted that the language of article 730.20 "defaults to confinement." Id. at 196. The court held that "reading CPL 730.20 to require either bail or recognizance" as mandated by article 530 "would make meaningless the language in that section that alternatively allows or requires confinement when the director of the hospital requests that the defendant be confined until the examination is completed." Id. The court reasoned that the legislature could not have intended the court to be given less authority to commit a defendant for examination than a hospital director. Id. Hence, the court held, the statute "must also allow remand when the court concludes, on its own, that confinement is necessary to assure that the examination is conducted." Id.

Furthermore, the court distinguished the purpose of confinement for a competency examination. Following a detailed recitation of the circumstances involving many defendants who present as mentally unfit at court proceedings and how they are unlikely to appear for a court-ordered examination, the court explained, "To the extent that bail must reflect the amount of control 'necessary to secure [a defendant's] court attendance', it would be disingenuous to set bail in a case where remand is appropriate merely to avoid the problem presented here of whether remand is permitted." Id. at 197-98 (internal citation omitted) (emphasis original). The court further held, "commitment of a defendant … found to be unfit, and one who 'may be' unfit, is not intended to punish but as a corollary of the need to address whatever mental disease or incapacity may have led to his arrest." Id. at 199.

Finally, the court ruled that the defendant, who was being returned involuntarily on a bench warrant with a new criminal case at the time the court ordered the competency examination, was "in custody" within the meaning of CPL §730.20 (3). Since "the examination must be conducted at the place where the defendant is being held in custody" (CPL §730.20 (3)), the court concluded that remand was a permissible form of securing order (Wilboiner, at 196-97).

Reasons Why Remand May Not Be Permissible

As the discussion in the previous section demonstrates, courts have tread cautiously when remanding a misdemeanor defendant for a 730 examination. Critically, both Giannelli and Wilboiner ultimately relied on the particular factual circumstances to explain why remand was appropriate in those cases. And although the Wilboiner court asserted a clear independent source for remand under CPL article 730, it remains to be seen whether it will withstand appellate analysis should the issue be raised under the new bail statute. Is it appropriate to consider the legislature's failure to amend CPL 730 as an affirmative recognition that remand or bail can be appropriate when ordering a competency examination?

When presented with a question of statutory interpretation, a court must "ascertain and give effect to the intention of the Legislature." DaimlerChrysler v. Spitzer, 7 N.Y.3d 653, 660 (2006) (internal citation omitted). The language of a statute is "generally construed according to its natural and most obvious sense." Samiento v. World Yacht, 10 N.Y.3d 70, 78 (2008), citing McKinney's Cons. Laws of NY, Book 1, Statutes §94, at 191-94 (1971 ed.). Also, "[w]henever possible, statutory language should be harmonized, giving effect to each component and avoiding a construction that treats a word or phrase as superfluous." Lemma v. Nassau County Police Officer Indemnification Board, 31 N.Y.3d 523, 528 (2018). Under this framework of statutory interpretation, when interpreting the provisions of article 730.20, it is equally important to study the language of article 530.20. When both articles are examined together, it could be argued that a more natural reading of article 730.20 is that CPL 730 does not intrude on the statutory authority for issuing securing orders; instead it commands the court to identify the place where the examination is to be held. In other words, if the defendant is at liberty, the director would have the discretion to determine when and where the examination would be conducted. CPL §730.20 (2). When the defendant is "in custody" on an appropriate securing order, neither the court nor the hospital director has discretion and the examination "must be conducted at the place where the defendant is being held in custody." CPL §730.20 (3). Not only would this interpretation have allowed both articles 530.20 and 730.20 to co-exist without a conflict, it also would have comported with the rule of lenity, which encourages ambiguities in the criminal statutes to be resolved in the defendant's favor.

Similarly, the legislature may not have intended to provide judges with the same discretion as the hospital director because a hospital director has unique expertise in conducting competency examination and may be better equipped to determine treatment and the setting necessary to carry out an effective 730 examination. It is unlikely that a judge has that expertise or knowledge, especially when presiding in arraignments or over a brief calendar call. Also, incarceration in a jail cell is sharply contrasted to a commitment to a psychiatric ward in a hospital and remand can be a harsh tool for a defendant who otherwise could be facing an in-patient evaluation. Kesselbrenner v. Anonymous, 33 N.Y.2d 161 (1973).

Furthermore, contrary to the reasoning in Wilboiner, the language in subdivision three, "[w]hen the defendant is in custody at the time a court issues an order of examination, the examination must be conducted at the place where the defendant is being held in custody," is too equivocal to conclude that it allows or requires remand. CPL §730.20 (3) (emphasis added). If we interpret this statute to allow a court to remand a defendant who is being arraigned or who is being returned involuntarily because he or she is in "custody," then, by the same token, it would take away all of the judge's judicial discretion in such situations and require remand. It would be unusual for the legislature to mandate such a forceful outcome in such a subtle way. Cf. CPL §530.40 (3) (when a defendant is convicted of a class A felony, "the court must commit or remand the defendant to the custody of the sheriff"). Instead, a more natural reading based on the circuitous language in the statute would lead to the conclusion that article 730.20 was not meant to dictate any changes to the defendant's custody status, but merely meant to serve as a designation of the place for the examination. Thus, even under the current bail statute, the appropriateness of remanding defendants after issuing a 730 order is questionable at best.

Tara A. Collins is a judge of the Bronx Criminal Court. Mark Son is a court attorney for Judge Collins.