County Court, Albany County, February 11, 2020

Stephen W. Herrick, Public Defender, Albany (Angela M. Kelley of counsel), for defendant.

P. David Soares, District Attorney, Albany (David M. Rossi of counsel), for plaintiff.

By writ of habeas corpus and supporting papers, the Albany County Public Defender's Office moved this court for an order releasing Thomas Bruni (thereinafter the petitioner), or in the alternative confining the petitioner to a hospital, for the purpose of conducting a CPL article 730 examination. The Albany County District Attorney's Office opposed the application. On February 7, 2020, the matter came before this court, and for the reasons set forth on the record, as well as those outlined below, the petition for a writ of habeas corpus is denied.

The petitioner was arrested on February 4, 2020, and charged with the crimes of attempted assault in the second degree, in violation of sections 110.00 and 120.05 (2) of the Penal Law, criminal contempt in the first degree, in violation of section 215.51 (b) (ii) of the Penal Law, criminal possession of a weapon in the third degree, in violation of section 265.02 (1) of the Penal Law, and aggravated harassment in the second degree, in violation of section 240.30 of the Penal Law. All of the crimes charged are non-qualifying offenses pursuant to CPL 510.10.

It is alleged that the petitioner, while in front of a public street in the city of Albany, with the intent to cause physical injury to the complainant, attempted to strike him numerous times with a metal body six-inch flashlight. At the time of the incident, it is alleged that there existed a duly served full stay away order of protection, for the complainant and against the petitioner. While engaged in the alleged conduct, the petitioner is charged with making statements including "I'll rip your fucking heart out," "I'll eat your fucking heart," and "I'll kill you," all the while under the belief or perception that the complainant was a "Russian spy."

The petitioner was arraigned in Albany City Court where he was remanded to the Albany County Jail without bail for the{**67 Misc 3d at 256} purpose of a competency evaluation pursuant to Criminal Procedure Law article 730.

Both parties agreed that the petitioner currently stands charged with all "non-qualifying offenses" as outlined in CPL articles 510-530. Revisions to CPL 510.30 and 530.20, effective January 1, 2020, provide that monetary bail or remand may be imposed only in cases where a defendant is charged with certain qualifying offenses. Defense counsel argued that, because the petitioner here is charged with all non-qualifying offenses, the arraigning judge had no authority to remand the petitioner without bail. Defense counsel contended that the determination whether to impose remand was governed exclusively by the provisions of CPL 510.30 and 530.20.

The issue is whether the provisions of CPL 530.20 apply in the context of a defendant who may be an incapacitated person and has been remanded for the purpose of conducting a psychiatric exam pursuant to CPL article 730. For the following reasons, which conform significantly with People v Suero (67 Misc 3d 229 [2020]), this court finds that they do not.

As noted above, material changes to New York's bail statutes were effectuated on January 1, 2020. Despite these significant changes, the revised statute does not describe what options are available to a court when there are reasonable grounds to believe that a defendant is an incapacitated person. Likewise, no revisions were made to CPL article 730 to address the revised bail, discovery and speedy trial statutes. Thus, the court looks to CPL article 730 to determine whether a defendant can be remanded when he is in need of a psychiatric examination.

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{**67 Misc 3d at 257} by the director until the examination is completed."

CPL 730.20 (3) provides that "[w]hen the defendant [*2]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 plain language of CPL article 730, this court concludes that a court has the discretion to remand a defendant pending a competency examination. As noted in Suero, ordering confinement is permissible when the defendant is currently at liberty on recognizance or bail, and confinement is the default condition when the defendant is in custody at the time that the exam is ordered.

The ultimate goal of confinement pending a competency exam is distinct from the purpose of setting bail, which is to ensure a defendant's return to court. In contrast, confinement under CPL article 730 is to ensure that the defendant appears at his competency examination. Confinement guarantees the examination will be completed in a timely fashion, and the court will be satisfied that the defendant is mentally competent to stand trial and assist in his own defense. A defendant who appears to be an incapacitated person cannot always be relied upon to understand and comply with the order of a court.

Furthermore, a defendant who is found unfit "must" be committed to the custody of the Commissioner of the Office of Mental Health. Therefore it is reasonable that a defendant may be confined pending that determination as the same concerns are present.

The application for a writ of habeas corpus is denied.

The defendant is remanded for the purposes of conducting a psychiatric examination pursuant to CPL article 730.

The defendant shall be produced in Albany City Court upon completion of the psychiatric exam to revisit his confinement status.