FINDINGS OF FACT

The defendant was indicted for Arson in the Second Degree in May 2001, when he was sixteen years old. By order of the Supreme Court dated April 2, 2002, he was found unfit to stand trial and committed to the custody of the Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities (now called NYS Office for People with Developmental Disabilities) for treatment to render him competent to stand trial (CPL Article 730).

The defendant was sent by the Commissioner to Sunmount Developmental Disabilities Service Office in April 2002 and remains there today. Since that time, five subsequent orders have been issued by the court to retain the defendant at Sunmount as a result of his continued lack of fitness for trial (CPL 730.50 [3]); the latest being on February 19, 2009.

In December 2009, the defendant applied to the court to convert his confinement to civil status, or, alternatively for his release. The basis of the application was the several determinations of unfitness by Sunmount's clinical staff over a period of about eight years (Jackson v Indiana, 406 US 715).

In January 2010, the defendant was again determined to be unfit for trial by Sunmount, although some improvement in his condition was noted. Nine months later, on October 28, 2010, defendant was found competent to stand trial by Sunmount's clinical staff.

Defendant has requested a hearing on the issue of competence to proceed to trial (CPL 730.30 [2]), which was joined with the prior application for Jackson relief.

A hearing was held before the court on both applications on November 18, 2010. Testifying at the hearing were Dr. Cheryl Doerr, on behalf of the Commissioner of the New York State Office for People with Developmental Disabilities and Dr. Barry Rosenfeld on behalf of the defendant.

The first issue to be decided is whether the defendant is competent to stand trial. If so, the Jackson application is moot. In this regard it is the burden of the Commissioner and the People to establish the defendant's competency by a preponderance of the

evidence (People v Mendez, 1 NY3d 15; People v Christopher, 65 NY2d 417; People v Duggins, [*2]137 AD2d 613).

Under the law, the test for competency is whether the defendant has the capacity to understand the proceedings or to assist in his own defense (CPL 730.10 [1]). The United States Supreme Court has amplified this definition by requiring that the defendant have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and...a rational as well as factual understanding of the proceedings against him" (Duffy v United States, 362 US 402).

In this case, the defendant's expert, Dr. Rosenfeld, was of the opinion that, although the defendant can regurgitate answers, "he can't really use that information that he has learned...He cannot use that information and make meaningful decisions in his own case" (p.52).

Dr. Rosenfeld, in explaining his belief that the defendant is unfit for trial, cited the defendant's inability to participate in a courtroom setting (p.52), his extremely limited level of intelligence, distress, anxiety, and inability to pull himself together (p.60), fragility and immaturity (p.61).

Rather than disputing this opinion, the tenor of the testimony of the respondents' expert, Dr. Cheryl Doerr, was that the defendant would decompensate quickly in jail awaiting his court proceeding, unless placed in a "special needs unit" (p.15). Dr. Doerr also testified that even after eight years of treatment at Sunmount, the defendant cannot read beyond a first grade level (p.16), does not understand the dangerousness of his behavior or the need for supervision in the community (p.27).

Finally, although the defendant "passed" the standardized Competency for Assessment for Standing Trial for Defendants with Mental Retardation (CAST*MR) examination, this is in no manner dispositive of the issue. In the first place, the defendant failed the test repeatedly and finally given the exam under special, private circumstances. Moreover, the court credits Dr. Rosenfeld's opinion that answering 76 percent of the questions which is two points above the "pass" rate, cannot be viewed outside of other criteria. It is not knowing the answers, but the processing of the information that is necessary to meet the due process requirements of Dusky (supra) (p.66). This opinion is bolstered in Dr. Doerr's report of January 29, 2010, where she cites his psychiatrist, Dr. Wolff, as believing that the defendant's "knowledge of and information about the legal system should be obtained from less formal situations rather than formal testing indicating that this would be more likely to be valid."

Finally, both experts agree that this defendant suffers from a high level of anxiety that will be exacerbated by confinement in jail or in the courtroom dock. Dr. Doerr was of the opinion that a trial would cause the defendant "debilitating stress" (p.28) and told the court that several psychologists have commented on his anxiety over returning to Riker's Island (p.45). She expects that a return to the general population of Riker's Island would risk total dysfunction, rendering defendant incompetent. In an e-mail sent on April 9, 2010, and introduced into evidence at the hearing, Dr. Doerr expressed concern that removal to Riker's would cause the defendant's decompensation and adversely affect his emotional stability.

Dr. Rosenfeld, for his part, believes that the defendant cannot be a participant in court proceedings and that a return to jail would overwhelm him with distress (p.63).

It is clear then that the defendant is not capable of rationally understanding the choices he faces in resolving his legal predicament. Nor does he have the intellectual or emotional means to [*3]withstand the stress of trial, or even the preliminary proceedings leading to trial. In this state, he is incapable of proceeding to trial or assisting in his own defense.

Neither side quarrels with the defendant's fragile, brittle state and even the respondents seem to agree that the defendant's state of competency is subject to immediate descent. It is to the court a finding of phantom fitness with no more substance than a bubble on a baby's wand.

It is the finding of the court that the defendant is not competent to stand trial.

It is now necessary to turn to the defendant's Jackson application. In Jackson v Indiana, 406 US 715 at 728, the United States Supreme Court held that a defendant found incompetent to stand trial "cannot be held more than a reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the state must institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant."

Thus, the Court limited the commitment period to the "reasonable time necessary" to determine if there is a "substantial probability" of restoration in the "foreseeable future".

Here, nearly nine years after defendant's treatment began, the best that can be said is that he is fragilely fit, a position which this court rejects. His developmental disability, intellectual deficits, anxiety and suspicion have not abated. It is clear to the court that a reasonable time has elapsed since the defendant started treatment and that there is little possibility that he will be restored to fitness anytime soon.

For these reasons, the defendant's application for Jackson relief is granted.

Since the defendant is an incapacitated person as defined in CPL 730.10 and there is no substantial probability that he will attain fitness to stand trial in the foreseeable future, it is

ORDERED, that within a reasonable period from the date of this decision and order, the Commissioner of the New York State Office for People with Developmental Disabilities admit and retain the defendant pursuant to a civil legal status under Article 15 of the New York State Mental Hygiene Law, or, in the alternative, release him from confinement.

____________________________

Matthew J. D'Emic

J.S.C.