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.

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. Part 1 of this article discussed whether a defendant who appears unfit can still be remanded or have bail set under the new statute. Today's Part 2 will explore whether other options are available to facilitate a successful completion of a 730 examination.

Alternatives to Remand: What Is a Judge To Do?

The routine remand of defendants where the court issues a 730 order will be the object of philosophical, practical and legal challenges under the new bail statute, which provides a clear legislative mandate that the defendants who are charged with "non-qualifying" offenses must be released except in very narrow circumstances. The problem, of course, is that there will undoubtedly be cases where remand seems necessary to ensure satisfaction with the court's order. In those situations, reviewing the list of "non-monetary conditions" under the new statute would do little to ease the judge's concerns because, even at best compliance, they do not compel the defendant to come back or eliminate any potential physical danger. Furthermore, given the vulnerability of the individuals experiencing a mental health crisis, courts must exercise greater vigilance before issuing bench warrants. See, e.g., Greg B. Smith, NYPD's Mental-Illness Response Breakdown, NY Magazine (March 21, 2019) ("In the last three years alone, 14 mentally ill people have died at the hands of police, spurring calls for—and moves toward—reform"). If the judge is not going to remand the defendant or if the defendant who has been released is not complying with the 730 order, what are the judge's options?

A "mental hygiene warrant" or a "mental hygiene order" pursuant to Mental Hygiene Law (MHL) §9.43 may be an attractive tool to handle some of these situations. A mental hygiene warrant allows the judge to issue a warrant upon a "verified statement" that a person is "apparently mentally ill" and conducting "in a manner which in a person who is not mentally ill would be deemed disorderly conduct or which is likely to result in serious harm to himself or herself" MHL §9.43 [a]. The warrant allows such person to be brought to court for an examination by a judge to determine further cause of action. Id. Similarly, a mental hygiene order allows the judge to send such person to a hospital or "any comprehensive psychiatric emergency program." Id.

The benefits of using the mental hygiene warrant and/or order are many. First and foremost, this warrant allows for an immediate and effective intervention by the court and medical professionals if necessary. When a bench warrant is issued, the defendant is typically sought out by the police department's warrant squad. Depending on the workload, these warrants may not be executed immediately. Also, many of these officers are not properly trained to deal with individuals in mental health crisis, which may "run the risk of escalating, leading to unnecessary uses of force and involvement with the criminal justice system." See Public Advocate for the City of New York, Improving New York City's Responses to Individuals in Mental Health Crisis, 4. On the other hand, when a mental hygiene warrant is issued, staff from the Sheriff's Department who have received specialized training in dealing with people in a mental health or emotional crisis would immediately bring the defendant to the courtroom and allow the judge to assess the need for further intervention. If the judge believes that further hospitalization is required based on a concern that the defendant poses a physical threat to himself or herself or others, a mental hygiene order may be issued for the defendant to be transported to a designated mental health facility where he or she can receive an appropriate evaluation and medical care. This legal process allows the judge to have some ability to monitor the defendant's mental health and ensure the physical safety of the defendant and others around him or her.

Also, by requiring medical intervention for an individual who is suffering a mental or emotional crisis, a mental hygiene warrant or an order could facilitate completion of a 730 examination in compliance with the statutory scheme. As mentioned previously, both subdivisions two and three of article 730.20 permit hospital confinement upon a hospital director's request. The key to successfully conducting a 730 examination, especially if confinement is necessary, is to enlist the help of medical professionals early in the case (many of these defendants may have lost contact with their medical providers). These professionals will not only provide necessary medical care to the defendant, but also case-specific recommendations to the court in terms of whether confinement is necessary for a 730 examination. As such, if a defendant is experiencing an emotional or mental health crisis at arraignment and may be at risk of hurting himself or herself, the judge or the defense counsel may wish to consider issuing or requesting a mental health order.

However, MHL §9.43 is limited in its usefulness in the criminal context. To begin, before a mental hygiene warrant or an order may be issued, the court must have a "verified statement" that the defendant is engaging in conduct that is "likely to result in serious harm to himself or herself." MHL §9.43 [a]. Although a verified statement may be prepared by anyone, the prosecutor or the court would be unable to initiate the process if they did not observe any dangerous behavior by the defendant. Even where a verified statement is prepared timely and sufficiently, the warrant or the order would be executed during normal business hours, Monday through Friday, 9 a.m. to 5 p.m. As such, it may be an incomplete solution to courts in sitting in night arraignments.

Also, the legal standard for the issuance of mental hygiene warrants or orders—"apparently mentally ill" and acting in a manner that is likely to "result in serious harm to himself or herself"—is different than the finding of an "incapacitated person" necessary for 730 orders, which is defined as someone who "lack[s] capacity to understand the proceedings against him or to assist in his own defense" as a result of "mental disease or defect." CPL §730.10 [1]. Thus, although the defendant may be "unfit," the court may not issue a mental health warrant or an order to remove him or her to a mental health facility if the defendant is not posing any physical threats. For this same reason, even if an individual is sent to a hospital pursuant to a mental hygiene order, the hospital may be required to release the defendant even though he or she may be "unfit."

Remand as a Last Resort

Does the new bail statute strip the courts of the power to remand defendants? As previously discussed, even though bail may be set under the new bail statute if one of the triggering events occurs (see The New Bail Statute, supra), the court may not issue a remand order so long as the defendant is charged with a non-qualifying offense (CPL §530.60 [1] (effective Jan. 1, 2020) ("If the defendant is entitled to recognizance, release under non-monetary conditions, or bail as a matter of right, the court must issue another such order.")). As in Giannelli, defendants charged with non-qualifying offenses may continue to be remanded after a hearing if they violate the court's order of protection. CPL §530.12 [11] [a] (effective Jan. 1, 2020). But this option seems to have a limited applicability.

At the same time, there is a viable argument under LaBelle (supra) that remand is still allowable under the new bail statute. Even though the bail statute has been greatly modified, article 730, under which the LaBelle court concluded that remand may be an option, remains untouched. Certainly, article 730's confluence with the Mental Hygiene Law, which "contains numerous authorizations for involuntary hospitalization for examination prior to judicial intervention" (People v. McNelly, 83 Misc.2d 262, 266 (Sup. Ct., N.Y. County 1975)), may lend strength to the argument that remand may be permissible to "effect the purpose of CPL article 730" in rare occasions "when a defendant … appears unlikely to cooperate" (Giannelli, supra, at 368).

We must keep in mind, though, that such a broad interpretation of the court's authority to remand defendants under article 730 may be vulnerable to challenges under the Equal Protection Clause and/or the Due Process Clause. If the court continues to engage in routine remand of defendants when issuing a 730 order, it could be argued that courts are unlawfully singling out defendants who may be "unfit" in violation of the Equal Protection Clause. There would be another valid argument that remanding defendants solely on the basis of an issuance of a 730 order constitutes deprivation of one's liberty without due process, especially in the absence of a clear and direct statutory authorization.

As such, although the practice of remanding defendants upon issuance of a 730 order may continue to be permissible under LaBelle, it should be used sparingly and only on a factual finding that fully supports the court's decision. Courts should first consider all other possibilities for an "out" 730 examinations whenever possible. We should also remember that "[d]enial of bail is no light matter, and needs to be buttressed by a real showing of reasons therefor." Shapiro, 290 N.Y. at 398. Thus, even if a judge decides to remand a defendant as a last resort measure under the new statute, it seems advisable to engage in the kind of extensive and exhaustive fact finding about the defendants' personal background as was done by the Giannelli and Wilboiner courts to justify the result.

Conclusion

The legislature's intent in passing the criminal reform legislation should motivate courts to pay closer attention to each defendant's personal background and individual circumstances when making release determinations. Although there may be relatively few defendants who will be charged with non-qualifying offenses and require 730 examinations to determine trial capacity, as of Jan. 1, 2020, each of those cases will present significant challenges at and after arraignments. When dealing with such defendants under the new bail statute, our goal should not be focused solely on the mere efficiency of processing the 730 examinations, which has arguably led to near automatic remands for defendants who may be "unfit." Instead, in keeping with the legislative spirit, we must focus on releasing the defendants and establishing an appropriate set of non-monetary conditions that would assure their return.

Part of the solution may be actively seeking ways to connect or re-connect these individuals to mental and physical health services, supportive housing, and other social services that could improve their physical and mental well-being. For instance, our state already has an established network of alternative to incarceration programs that are active in the pre-trial stages of criminal litigation. See, e.g., New York State Division of Criminal Justice Services, Alternative to Incarceration (ATI) Programs. Many of these programs offer community-based supervision and treatment options and may be extended to provide such services to "out" 730 defendants to ensure successful completion of 730 examinations and return to court.

As an example, if the court is unsure as to what the medical or emotional issues are with an individual, the court can order as a non-monetary condition of release that the person be screened by a professional at the supervised release program or appropriate agency. The court can adjourn the case for a short date to get an update from the agency. Depending on the recommendations, the court can make further non-monetary conditions of release to reflect the clinical recommendations. If an individual is currently enrolled in services in the community or recently left services in the community, an effort can be made with supervised release or other designated agency and defense counsel to either re-engage in individual in services or enhance their services to help. Again, a short date is advisable to update the court and release conditions can reflect what the court believes is appropriate given the circumstances. When dealing with an individual without a home, one of the non-monetary conditions of the release could be requiring him or her to stay at a homeless shelter during the pendency of the criminal case. The New York City Shelter system offers additional screening for these individuals to connect them to necessary social services while providing them with temporary shelter, with a goal of permanent housing.

Finally, it is worth remembering that non-monetary conditions that are set at the defendant's arraignment may be revisited at following appearances. CPL §510.40 [3] (effective Jan. 1, 2020). Judges should not be afraid to modify non-monetary conditions depending on the defendant's experiences and reactions to ensure successful completion of 730 examinations. If we can collectively work together in this way, remand in 730 cases may become a thing of the past—and safely so.

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