DECISION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS Factual Background1 On December 30, 2019, in Part AR1 of the Criminal Court of the City of New York, Kings County, Urias Suero (hereinafter, “the petitioner”) was arraigned on a felony complaint. (Kitsis, J. at arraignment). The petitioner was charged, inter alia, with Making A Terroristic Threat, a Class D Violent Felony. See PL §§490.20(1) and 70.02(1)(c). It is alleged that the petitioner entered a synagogue wherein people were praying and said, “Kill. Kill. Kill. I’m here to kill.” The petitioner was wearing a shirt bearing the word, “Cult.” When one of the complainants approached the petitioner, he took “an aggressive posture” toward the complainant. Attempts were made to induce the petitioner to leave, but the petitioner fled the scene only after a call was made to 911. Six years prior to this case, in a case alleging Attempted Assault In The First Degree, the petitioner was found to be an incapacitated person pursuant to CPL §730. The record reflects that at the arraignment on the present case, as the arraignment judge was discussing issues relating to the case, the petitioner said, “Fuck you.”2 Taking the position that the petitioner was charged with a non-qualifying offense for which bail was not authorized, the People did not request that bail be imposed. However, the People asked that the petitioner be subject to conditions of supervised release. In addition, the People requested that the court issue orders of protection in favor of the complaining witnesses. The arraignment judge advised the petitioner of his obligations pursuant to the orders of protection. As the judge did so, the petitioner interrupted, saying, “Put that in writing.” At one point, the arraignment judge apparently noticed that the petitioner was engaging in conduct suggesting that he did not take the proceedings seriously, prompting the judge to inquire of him, “Is something funny?” The petitioner replied, “No, I’m listening. Nothing is funny. I’m listening to the degrees.” The arraignment judge found that, “based on the expletives the defendant let loose with, that he appeared to be laughing while I was going over the order of protection, that there is somewhat disruptive and confused behavior.” The judge also noted that “the allegations here involve some threatening and violent behavior. It is a bizarre type of offense.” In addition, the judge remarked that “the defendant does appear to be somewhat disheveled, [and] there’s a history of past psychiatric problems.” Based on these findings, the arraignment judge determined that the petitioner may be an incapacitated person within the meaning of CPL §730.10(1). The People concurred in the judge’s assessment. Defense counsel objected to the finding, asserting that the judge’s inquiry was insufficient to support the belief that the petitioner may be an incapacitated person. The arraignment judge issued an order for the petitioner to submit to a psychiatric examination to determine whether he is an incapacitated person and remanded him for that purpose.3 The case was adjourned to January 13, 2020, in Part AP1-F for the fitness report. On January 13, 2020, because the People had not submitted the case to the grand jury, defense counsel moved for the petitioner to be released pursuant to CPL §180.80. The request was apparently denied, and the case was adjourned to January 17, 2020. (Rodriguez, J.) On January 14, 2020, defense counsel filed the instant petition for a writ of habeas corpus. On January 15, 2020, this court heard oral argument on the petition. According to defense counsel, the psychiatric examination has been completed, but no finding has been reported. In this case, the so-called “180.80″ date — the date by which a defendant charged by felony complaint must be released unless the grand jury has filed an indictment or certain or other circumstances apply — was January 3, 2020. As of January 15, 2020, no grand jury action has been reported. At the oral argument on this petition, the People did not allege good cause for the failure to present the case to the grand jury. Conclusions of Law The petitioner makes three arguments in support of his petition for a writ of habeas corpus: 1) the arraignment judge abused his discretion in ordering the psychiatric examination and remanding the petitioner for the purpose of carrying out the examination; 2) the arraignment judge did not consider all of the factors enumerated in CPL §510.30 and failed to impose the least restrictive alternative necessary to ensure the petitioner’s return to court; and, 3) the petitioner’s continued detention violates CPL §180.80. The decision to order a psychiatric examination was within the court’s discretion. CPL §730.30(1) provides that the court must order a psychiatric examination if the court determines that the defendant may be an incapacitated person. An incapacitated person “means a defendant who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense.” See CPL §730.10(1). CPL §730 does not enumerate any factors that the court must consider to make the determination whether a defendant may be an incapacitated person, nor does it prescribe the nature of the inquiry a court should undertake to make this determination. See generally CPL §730. So long as the court relies on facts and observations to support its conclusion, the court may act within its sound discretion in ordering the psychiatric examination if there is a reasonable basis to conclude that the defendant is an incapacitated person. See People v. Idlet, 208 AD2d 649 (2d Dept 1994), lv. den., 84 NY2d 1012 (1994)(“For a court to order an examination pursuant to CPL 730.30(1), there must be some reasonable ground for believing that the defendant may be incapable of understanding the charges against him or aiding in his defense.”) In the instant case, the arraignment judge made particularized findings in support of his determination that a competency examination was required. The judge relied on the following: the defendant’s prior adjudication as an incapacitated person in 2013; the totality of the defendant’s alleged criminal conduct as detailed above, the nature of which was objectively bizarre and indicative of a disordered mind; the defendant’s disheveled appearance; and, the defendant’s inappropriate laughing and profane outburst during the arraignment proceeding. In sum, it cannot be said that the arraignment judge abused his discretion in determining that the defendant may be an incapacitated person. Once the judge made this finding, CPL §730.30(1) mandated that the court order a psychiatric examination. Remanding the defendant to complete the competency examination was the least restrictive alternative and a proper exercise of discretion. The petitioner contends that the determination whether to impose remand in this case must be governed exclusively by the provisions of CPL §§510.30 & 530.20. In addition, the petitioner asserts that, notwithstanding that the results of the psychiatric examination have yet to be reported, he must be released pursuant to CPL §180.80.4 Revisions to CPL §§510.30 & 530.20 et seq., effective as of January 1, 2020, provide that monetary bail or remand may be imposed only cases where a defendant is charged with certain qualifying offenses. The parties agree that none of the offenses charged in the felony complaint constitute qualifying offenses for which bail may be imposed under CPL §530.20(1).5 The question arises whether the provisions of CPL §530.20 and CPL §180.80 apply in the context of a defendant who may be an incapacitated person and who has been remanded for the purpose of conducting a psychiatric examination. For the reasons stated below, this court concludes that they do not. Although the Legislature made significant revisions to the bail statutes (CPL §§500-530) that became effective on January 1, 2020, the revised statutes make no mention of a court’s bail options when there is reasonable ground to believe a defendant is an incapacitated person, as defined in CPL §730.10(1). Furthermore, in revising the bail, discovery, and speedy trial statutes this past year, the Legislature made no amendments to CPL §730. CPL §730.20(2) provides, in pertinent part, that “[w]hen the defendant is not in custody at the time a court issues an order of examination because he was theretofore released on bail or on his own recognizance, 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. If however, the director informs the court that hospital confinement of the defendant is necessary for an effective examination, the court may direct that the defendant be confined in a hospital designated by the director until the examination is completed.” CPL §730.20(3) provides, in pertinent part, that “[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.” Given the language of CPL §§730.20(2) & (3), this court concludes that a court has the discretion to order that a defendant be remanded pending a competency examination. Indeed, the aforementioned statutes provide that ordering confinement is permissible when the defendant is currently at liberty on recognizance or bail, and that confinement is the default condition when the defendant is in custody, as in the petitioner’s case.6 To read these statues as mandating certain defendants be released pending competency examinations would be to ignore their plain meaning. Additionally, the goal of confinement pending a competency examination is different than the purpose of setting bail to ensure a competent defendant returns to court; perhaps it is for this reason that CPL §730 refers to “confinement” instead of “remand,” remand being a term used in CPL §530.20 and associated with denying a defendant bail. A defendant who is potentially an incapacitated person cannot be relied on to understand, must less comply with, an order of the court. The purpose of confinement under CPL §730 is not to ensure that a defendant does not enact a scheme to purposely evade the obligation to return to court. Rather, its purpose is to ensure that a potentially incapacitated person appears at the competency examination so that a psychiatric examiner may examine the defendant to aid the court in determining whether the defendant is mentally competent to stand trial and to assist in his own defense. Therefore, when a court has reason to believe that a defendant may be an incapacitated person, the case is put on hold for those concerns to be resolved. See e.g. CPL §30.30(4)(a)(A reasonable period of delay to determine the defendant’s competency is excludable from the time for which the People must be ready for trial.) Furthermore, because a defendant who is found unfit “must” be committed to the custody of the Commissioner of the Officer of Mental Health, it stands to reason that a defendant may be confined pending that determination, as the same concerns are present. See CPL §730.40. The petitioner argues that because psychiatric examiners have already examined him, he should be released from the hospital until the report is finalized. This contention is without merit. Although the psychiatric examiners must submit a report opining on the defendant’s fitness, it is the court that ultimately makes the determination as to whether the defendant is an incapacitated person. See CPL §730.30. If both psychiatric examiners determine that the defendant is fit, the court must still conduct a hearing on a motion by either party. See CPL §730.30(2). If the court, after conducting a hearing, is not satisfied that the defendant is fit to proceed, it must issue a further order of examination directing that the defendant be examined by different examiners. Id. In other words, the examination process is not complete until the psychiatric examiners have examined the petitioner, the attorneys have been given an opportunity to be heard, and the Court has made a decision on the defendant’s competency. Id. See also People v. Phillips, 16 NY3d 510, 517 (2011)(“A finding of trial competency is within the sound discretion of the trial court and involves a legal and not a medical determination.”) At present, there is no binding legal authority concerning whether the revised bail statutes impact the court’s powers under CPL §730. However, a review of the case law that considered the application of CPL §730 in conjunction with the previous version of CPL §520.30 is instructive. Prior to the recent revisions to the bail statutes, when a defendant was charged with “an offense or offenses of less than a felony grade only, the court must order recognizance or bail.” See §530.20(1)(effective until January 1, 2020), i.e., a court was prohibited from denying bail to a defendant charged with only misdemeanors. However, notwithstanding the general rule that a defendant charged only with misdemeanor crimes could not be remanded, courts have remanded (or confined) defendants charged with misdemeanors pending a competency examination, as set forth in CPL §730.30(1). See e.g. People v. Willboiner, 35 Misc 3d 193 (NYC Criminal Court, Kings County, 2012); People v. Giannelli 189 Misc 2d 366, 367-68 (Just Ct, Westchester County, 2001). Perhaps the most in-depth analysis of a court’s power to remand a defendant who is charged with a misdemeanor pending a competency examination can be found in People v. Willboiner, cited supra. There, the defendant was charged with Criminal Trespass and, upon being rearrested, Criminal Contempt: both misdemeanors. Defense counsel requested an examination pursuant to CPL §730. The request was granted and the defendant was remanded without objection. Id. However, three weeks later, when the examiners requested additional time to complete the competency examination, counsel objected to his continued detention and argued that remand was not permitted. Id. Over counsel’s objection, the Court determined that remand was permissible under CPL §730 and denied the motion to release the defendant. Id. In doing so, the Court analyzed CPL §730 and found that the prohibition of remanding a defendant under CPL §530.20 was not applicable when a competency examination was ordered. Id. Specifically, the court noted that CPL §730.20(3) states that a court “must” order that the competency examination be done at the place of confinement when the defendant is in custody, and that to require a court to set bail would “make meaningless the language in that section that alternately allows or requires confinement when the director of the hospital requests that the defendant be confined until the examination is complete.” Id. at 196. Additionally, the court noted that the purpose of confinement under Article 730 is to ensure that the possibly incapacitated person appears for the competency examination, which is consistent with the overarching purpose of CPL §730: that a defendant not be “tried or sentenced for a crime if he or she is not mentally competent.” Id. at 198, citing Lawrence K. Marks, New York Pretrial Criminal Procedure §6:1 (7 West’s NY Practice Series 2011). There appears to be no appellate precedent holding that, pursuant to the previous CPL §530.20, a defendant could not be remanded for a competency examination when charged with a misdemeanor. Indeed, it appears that the only appellate case touching on this issue is Matter of LaBelle, 79 NY2d 350 (1992), a judicial disciplinary matter touching upon a judge’s repeated denial of bail in misdemeanor cases and in the context of CPL §730. Determining that the judge engaged in sanctionable conduct because he “knowingly committed legal error” by imposing remand in a number of misdemeanor cases, the Court of Appeals nevertheless found that the judge did not engage in sanctionable conduct in remanding defendants pursuant to CPL §730 because an “ambiguity exists” among the relevant statutes — namely CPL §530.20(1) and §§730.20(2), (3) — as to whether a defendant may be confined pending a CPL §730 examination. LaBelle, 79 NY2d at 361. The Court of Appeals noted that this issue had not been decided and that “[t]he ambiguity cannot and need not be resolved here; its resolution must await a proper case and the proper parties.” Id. Although the bail statutes have been revised since Willboiner, the revised statute does not alter the analysis. Prior to 2020, there was no cognizable legal bar in statute or precedent to courts exercising their discretion to remand a defendant pending a CPL §730 examination for a non-qualifying crime — a misdemeanor — and there is no reason to believe that the new bail law changes the court’s discretion in this regard. The revised CPL §530.20 contains no provisions relating to CPL §730 examinations. Furthermore, no revisions were made to the provisions of CPL §§730.20 or 730.30. Had the Legislature intended to curb judges’ discretion to remand or confine defendants pending the determination of fitness, it could have included provisions addressing this issue in the revisions made effective on January 1, 2020, yet, for whatever reason, it failed to do so. Consequently, unless and until the Legislature makes clear its intent to circumscribe judges’ discretion to remand or confine potentially incapacitated persons, courts may exercise their sound discretion to determine whether such persons should be confined or be at liberty pending determinations of fitness. For the reasons recited by the arraignment court and summarized in the statement of facts above, it should be apparent that the judge did not abuse his discretion in determining that it was necessary to impose remand or confinement in this case. The bizarre nature of the alleged criminal conduct along with the defendant’s appearance and inappropriate behavior provided a reasonable basis for the judge to determine that only confinement would ensure that the defendant would be present for the psychiatric examination. Finally, the petitioner argues that he must be released because the so-called “180.80 date” has passed, the grand jury has not filed an indictment, and the People have not argued for a good-cause extension. This argument is without merit.7 For all the reasons discussed above, a court may order a defendant be confined pending a competency examination, notwithstanding the expiration of the CPL §180.80 date. In this case, if the petitioner is determined to be fit to proceed, he will be released without monetary bail, as the People have conceded that the charged crimes are non-qualifying offenses. Conversely, if he is determined to be unfit to proceed, he “must” be committed to the custody of the Commissioner of the Officer of Mental Health.” See CPL §730.40. For the foregoing reasons, the petition for a writ of habeas corpus is denied. This is the decision and order of the court. So Ordered. Dated: January 28, 2020
