DECISION AND ORDER Defendant claims that the felony complaints filed against him should be dismissed pursuant to CPL 730.40 (2) since he was in custody at the Kirby Forensic Psychiatric Center at the expiration of the temporary order of observation issued by the court. Defendant’s custodial status at the facility at that time, however, was a consequence of hospital release protocols and the delay in his transfer to the New York City Department of Corrections. It was not the result of the facility’s director issuing a certificate of custody, the statute’s precondition for dismissing a felony complaint. The court therefore denied defendant’s application and ordered that the criminal proceedings continue. This decision explains the reasons for that finding. Background Defendant Elijah Anderson was arraigned August 10, 2022 and charged under Docket Number CR-021292-22NY with Attempted Robbery in the First Degree (Penal Law §§110/160.15[3]), Attempted Assault in the Second Degree (Penal Law §§110/120.05[2]), Attempted Robbery in the Third Degree (Penal Law §§110/160.05) and Menacing in the Second Degree (Penal Law §120.14[1]). The felony complaint states in part that on August 10, 2022 at about 2:18 a.m. in front of 340 Avenue of the Americas the defendant demanded money from a food vender and stated “I don’t care. I’ll rob anyone. I’ll rob you again, I don’t care” and thereafter “displayed a metal pipe and swung it inside the food cart.” The first two counts are monetary bail qualifying offenses. CPL 510.10 (4) (a) and Penal Law 70.02 (1). The court set bail in the amount of $7,500 cash, $10,000 insurance company bond and $10,000 partially secured surety bond with the surety required to deposit 10 percent of the bond amount with the court at posting. The case was adjourned to August 15, 2022 at which time defendant had not posted bail, the prosecution had not presented the case to the grand jury and defense counsel waived the application of CPL 180.80 until the next court date. The court set one-dollar bail on the two other felony cases referenced above in which defendant previously had been at liberty. Counsel also requested that defendant undergo a psychiatric examination pursuant to CPL 730 to determine whether he was mentally fit for criminal prosecution. The court granted the application and issued an order providing in part that the examination should take place where defendant was being held by the department of corrections unless the office of mental health determined that it should take place at a designated hospital. The cases were adjourned to September 15, 2022 for grand jury action and the examination results. The psychiatric evaluation report submitted to the court thereafter found the defendant unfit to proceed to trial. Neither party requested a hearing and both confirmed the report’s finding. The court then issued a temporary order of observation pursuant to CPL 730.40(1). The order committed the defendant to the care and custody of the Commissioner of Mental Health for a period not to exceed ninety days from the date of the order. It required notification to the court and the District Attorney if the defendant was determined no longer to be an incapacitated person. There also was a notation on the order requesting the filing of a certificate of custody or fitness by December 6, 2022. The court adjourned the matters to December 13, 2022 one day short of the expiration of the temporary order of observation for the commissioner to file either a certificate of fitness or custody. Counsel continued to waive the application of CPL 180.80 until that date. On December 13, 2022 the director of Kirby Forensic Psychiatric Center, the hospital designated by the commissioner to treat the defendant, filed with the court a “Notification of Fitness to Proceed.” The notice stated that the defendant was no longer an incapacitated person and asked the court to “direct…your local Department of Corrections to take custody of the said defendant in accordance with law.” The next day the court issued an order to produce directing the New York City Department of Corrections to take defendant from the hospital and bring him to the Riker’s Island Mental Health Center Admissions Unit and to “keep defendant in custody until such time that the defendant is required to appear in court on December] 20, 2022.” At the December 14, 2022 court appearance counsel renewed his argument made the day before that since defendant was still at the hospital at the expiration of the temporary order of observation the felony complaints should be dismissed. The court denied the application but allowing counsel to address it again on the next adjourn date set for December 20, 2022. Also at issue was the status of the court’s initial securing order. Although the People first argued that defendant should be detained pursuant to the CPL 730 examination order, they ultimately conceded that he was entitled to statutory release pursuant to CPL 180.80. The court ordered defendant released on his own recognizance. The defendant was in the custody of the department of corrections but not produced in court on December 20, 2022. The court noted that it had released the defendant on his own recognizance on the last court date and would issue a release order if needed. Counsel argued that since the defendant had been in the custody of the psychiatric facility after the expiration of the temporary order of observation the felony complaints should have been dismissed pursuant to CPL 730.40 (2). The court denied the application. Counsel stated that he was not abandoning the claim but declined the opportunity to submit further argument in writing noting that to accept a motion schedule would toll the prosecution’s speedy trial time. The court adjourned the cases to February 6, 2022 for grand jury action. DECISION The question here is a narrow one but the case involves a number of issues that recur frequently. The determinative issue is whether defendant’s detention at Kirby Forensic Psychiatric Center after the expiration of the temporary order of observation pending his transfer to the department of corrections constituted “custody” pursuant to CPL 730.40 (2) requiring the court to dismiss the felony complaints. The CPL 730 Order & Findings Defense counsel asked the court at the first adjournment after arraignment to order a CPL 730 examination for the defendant. The court is required to order a psychiatric examination of a defendant when it believes he may be an “incapacitated person.” CPL 730.30 (1). An incapacitated person is one “who, as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense.” CPL 730.10 (1). The order is “issued to an appropriate director [of a state hospital operated by the office of mental health CPL 730.40(4)]…directing that such person be examined for the purpose of determining if he is an incapacitated person.” CPL 730.10 (2). Upon receipt of an examination order, the director must designate two qualified psychiatric examiners to conduct the evaluation. CPL 730.20 (1). The examination must be conducted where the defendant is being held in custody unless the director determines hospital confinement of the defendant is necessary for an effective examination. CPL 730.20 (3). When the defendant is not in custody the exam will be done on an outpatient basis unless the director determines that hospital confinement is necessary for the examination whereupon the court can order the defendant confined to a hospital designated by the director until completion of the exam. CPL 730.20 (2). The examiners thereafter will issue a report which will include detailed support for their diagnosis and prognosis where the defendant is found unfit. CPL 730.10(8). The statute provides further that “[w]hen the examination report submitted to the court shows that each psychiatric examiner is of the opinion that the defendant is an incapacitated person, the court may, on its own motion, conduct a hearing to determine the issue of capacity and it must conduct such hearing upon motion by either the defendant or the district attorney.” CPL 730.30 (3). If the court does not order a hearing on its own and neither party requests one, the court “must issue a final or temporary order of observation committing the defendant to the custody of the commissioner for care and treatment in an appropriate institution for a period not to exceed ninety days from the date of the order.” CPL 730.40 (1). The commissioner referred to in the statute is the state commissioner of mental health. CPL 730.10 (3). The criminal action thereafter is suspended for the duration of the temporary order of observation. CPL 730.60 (2). The Certificate Of Custody & Notification Of Fitness The statutory section at issue provides that: [w]hen the defendant is in the custody of the commissioner at the expiration of the period prescribed in a temporary order of observation, the proceedings in the local criminal court that issued such order shall terminate for all purposes and the commissioner must promptly certify to such court and to the appropriate district attorney that the defendant was in his or her custody on such expiration date. Upon receipt of such certification, the court must dismiss the felony complaint filed against the defendant. CPL 730.40(2) (emphasis added). The commissioner in this case never provided the court with such certification. This was understandable since certification of custody follows a determination that the defendant still is unfit at the conclusion of the ninety-day period of observation and thus will remain in the commissioner’s custody for further hospitalization and treatment. CPL 730.70 (“When a defendant is in the custody of the commissioner on the expiration date of the final or temporary order of observation…the superintendent of the institution…may retain him for care and treatment for a period of 30 days from such date” with additional provisions permitting detention beyond that time frame); see generally Mental Hygiene Law §§9.27 et seq. governing involuntary hospitalization of person with a mental illness. What the commissioner through the director of the Kirby Forensic Psychiatric Center submitted to the court in this instance was a “Notification of Fitness to Proceed.” The case at this point is treated in the same fashion as when the examination results in response to the initial 730 order return a finding that the defendant is not an incapacitated person. CPL 730.60(2) (where a defendant is determined no longer to be an incapacitated person while in the commissioner’s custody pursuant to a temporary order of observation the court must “proceed in accordance with the provisions of subdivision two of section 730.30″). Absent the certification required by statute there was no mandate to dismiss the felony complaints. The forms used to communicate each finding provide further support for this conclusion. When a defendant remains an incapacitated person at the expiration of the temporary order of observation the director of the facility where he is in custody will submit to the court a notice titled “Certificate of Custody.” The certificate states in relevant part that “this is to certify that the above named defendant, who was committed to my custody or ordered retained in my custody by Temporary Order for Observation dated…was in my custody on the expiration date of such order.” Where the defendant is found fit to proceed prior to the expiration of the temporary order of observation the director of the facility where he is being held will file with the court a document titled “Notification of Fitness to Proceed.” It advised the court in the instant case that the defendant “who is now confined, pursuant to designation of said Commissioner at Kirby…of which I am in charge, has been determined by me to be no longer an incapacitated person. You are hereby requested to direct…your local Department of Corrections to take custody of the said defendant in accordance with law.” Thus, the notification submitted to the court in this instance did not mandate the dismissal of the felony complaints. Custody Under CPL 730.40 (2) Defendant’s application failed as well because the statutory reference to defendant’s custody covers specific circumstances narrower than those associated with the term’s common usage. The institution referred to in CPL 730.40 (1) will not discharge a defendant into the general public after the expiration of the temporary order of observation even where he has been found mentally fit and otherwise is not subject to a department of corrections hold. The facility will detain the defendant to arrange for aftercare, housing, prescription(s) for medication, confirmation of insurance coverage to pay for the prescribed medicine and transfer to the department of corrections so that the defendant can be brought to criminal court. The continued detention addresses the concern that absent the treatment and medication that successfully reversed the defendant’s incapacity he will destabilize with potentially negative consequences for himself and the community into which he is released. As a matter of court practice, the temporary order of observation in this case contained a handwritten notation requesting the facility to issue its certificate of custody or notification of fitness in advance of the expiration of the temporary order of observation. The precaution did not work as intended resulting in the defendant remaining in the hospital beyond the ninetieth day. Defendant’s continued detention at the hospital as a precautionary measure and to arrange for his transfer to the department of corrections, however, did not constitute custody for statutory purposes. This reading of the statute follows from the Court of Appeals resolution of a related issue concerning CPL 730 practice. The decision in People ex rel. Molinaro v. Warden, Rikers Island, 2022WL17683519 *1 (December 15, 2022) upheld the Second Department’s finding that a “court may not remand a defendant into custody solely because [a CPL 730.30] examination has been ordered.” The ruling from the Second Department represented a sea change in prior practice where courts upon issuing a CPL 730 order routinely remanded the defendant for the examination without regard to bail statutes or CPL 170.70 or 180.80 release requirements. The Court of Appeals as part of its decision found that the defendant was not “‘in custody’ during his arraignment for the purposes of [CPL 730.20] subdivision (3) because he was not charged with a qualifying offense under the bail laws and the court was required to order his release.” Id. at * 3. It observed further that [a]s its plain text makes clear subdivision (3) mandates the location for the examination as either (1) the place where the defendant is in custody at the time the court orders the examination, or (2) at a hospital facility, as might be necessary for an effective examination. The statute’s use of the phrase “in custody” like the phrase “hospital confinement,” refers, as a practical matter, to where a defendant may be properly examined by psychiatric personnel. Thus “in custody” as used in subdivision 3 does not broadly refer to custodial control over a defendant at a courthouse Id. at *3. Similarly, the “custody” referenced by CPL 730.40 (2) “does not broadly refer to custodial control over a defendant at” Kirby Forensic Psychiatric Center pending his transfer to the department of corrections. Cf. People ex rel Molinaro v. Warden Rikers Island, at *3 (“a different reading would mandate a remand or hospital confinement in every case where the court at arraignment directs a competency examination. This interpretation would, in turn, render subdivision (2) meaningless, in contravention of our established rules of construction that require we give meaning to all the words of a statute”)(citations omitted). Indeed, defendant’s interpretation of the statute would make CPL 730.40 (2) certification superfluous thereby rendering it a legal nullity. Cf. People v. Galindo, 38 NY3d 199, 205-206 (2022). Thus, defendant was not “in the custody of the commissioner” for the purposes of the statute rendering inapplicable the provision mandating the dismissal of the felony complaints. The Consequences Of The Certificate Of Custody And Notification Of Fitness On The Criminal Proceedings The court would note that dismissing the felony complaints as defendant requested merely would terminate the actions in criminal court. It would not bar submitting the charges to the grand jury. Cf. CPL 730.40 (5) (“Notwithstanding any other provision of law, an indictment filed in a superior court against a defendant for a crime charged in the felony complaint is not timely for the purpose of this subdivision if it is filed more than six months after the expiration of the period prescribed in a temporary order of observation issued by a local criminal court wherein such felony complaint was pending”). Any subsequent indictment would be timely if filed within six months of the expiration of the temporary order of observation. Significantly, dismissal would eliminate the defendant’s right to testify before the grand jury. cf People v. Moss, 99 Misc2d 534 (Sup Ct, Queens County 1979)(defendant was not deprived of her right to testify before the grand jury since a certificate of custody was filed before the expiration of the temporary order of observation resulting in the dismissal of the felony complaint thereby eliminating the prosecution’s obligation to notify the defendant of pending grand jury proceedings even though an indictment was filed two days after the expiration of the order and the court found the defendant fit to proceed two months later). The defendant retains that right where, as here, the cases proceed in criminal court on the felony complaints. In contrast, where the defendant faces only misdemeanor charges, a certificate of custody will require the court to issue a final order of observation which results not only in the dismissal of the case but serves as a bar to any further prosecution of those offenses. CPL 730.40 (1). A final order can be issued for a felony complaint only with the prosecution’s consent which was not provided here. CPL 730.40 (1). CPL 730 Procedures And Defendant’s Right To Release Pursuant To CPL 180.80 The court also had to consider the interplay between CPL 180.80 and CPL 730. Although the issue appeared to have been resolved by the Second Department on June 16, 2021 in People ex rel Molinaro v. Warden, Rikers Island, 195 AD3d 885 (2d Dept. 2021), the prosecution initially argued at the court appearance on December 14, 2022 that defendant’s remand status should continue as a result of the court ordered CPL 730 examination. The court found and the People ultimately conceded that the Molinaro decision extended to defendants entitled to release pursuant to CPL 180.80. The statute requires the court to release on his own recognizance any defendant held on remand or monetary bail (or subject to electronic monitoring — CPL 510.40[4]) absent action by the grand jury. See CPL 180.80(1) (where the defendant is in custody pending disposition of a felony complaint in excess of “one hundred twenty hours or, in the event that a Saturday, Sunday or legal holiday occurs during such custody, one hundred forty-four hours, without either a disposition of the felony complaint or commencement of a hearing thereon, the local criminal court must release him on his own recognizance.”)(emphasis added). A defendant’s release will not be mandated where the People either establish probable cause at a felony hearing, certify grand jury action, secure counsel’s consent to an extension of the statute or demonstrate good cause why release should not be ordered. CPL 180.80 (1)(2)(3). The Court of Appeals in upholding the Second Department found that a CPL 730 ordered exam does not override bail statutes stating that, “[o]ur interpretation gives meaning to the entirety of CPL 730.20 and avoids undermining the legislative intent reflected in the bail laws entitling [the defendant] and all other similarly situated defendants charged with non qualifying offenses to release.” People ex rel Molinaro v. Warden, Rikers Island, 2022WL17683519 at *4. The court quotes from the legislative history of subdivision (2) in further support for its conclusion. the status of the accused who has been enlarged [sic] on bail should not be changed because of a pretrial mental examination being ordered for [them] and an accused who is otherwise eligible for bail should not be denied bail because of a pretrial mental examination is ordered for [them]; if however the examining psychiatrists report that the accused’s confinement is necessary for an effective examination the court should be empowered to commit to a mental hospital Id. at *4 (citation omitted). Any securing order involving monetary bail, remand or electronic monitoring follows only from the application of the provisions of CPL 500 not those of CPL 730. As such they are subject to CPL 180.80. There is no reading of Molinaro that would suspend the application of CPL 180.80 to a case based upon the court ordering a CPL 730 examination. The court set monetary bail in this case at defendant’s arraignment. Defense counsel consented to the extension of CPL 180.80 at the first court appearance and requested a court ordered CPL 730 examination. The CPL 180.80 waiver continued after submission of the examination report finding defendant an incapacitated person until the next adjourn date scheduled for the filing of a certificate of custody or fitness. A Notification of Fitness dated December 13, 2022 was filed with the court and there was no grand jury action as of the December 14, 2022 court date. Counsel did not consent to any further extension of CPL 180.80 and there was no other basis to deny release. Accordingly, the court ordered defendant released on his own recognizance. CONCLUSION The defendant’s continued detention after the expiration of the temporary order of observation did not trigger the mandatory dismissal of the felony complaints. He was not in the custody of the Kirby Psychiatric Forensic Center pursuant to the statute. Further, defendant’s release pursuant to CPL 180.80 was mandated without regard to the court ordering a CPL 730 examination. Thus, the proceedings will continue on the felony complaints. This constitutes the decision and order of the court. Dated: February 2, 2023
