Supreme Court, New York County, May 9, 2023

Letitia James, Attorney General (Antwaun Gavins of counsel), for New York State Office of Mental Health, movant.

Legal Aid Society (Rosemary Vassallo of counsel) and Mental Hygiene Legal Services (Mary Beth Feerick of counsel) for defendant.

Alvin Bragg, District Attorney (Lauren R. Angelo of counsel), for the People.

The Commissioner of the New York State Office of Mental Health (OMH), represented by the Office of the Attorney General, has moved for an order converting the defendant "to civil status pursuant to Jackson v Indiana, 406 US 715 (1972), and granting such further relief as the court deems just and proper." The defendant's attorneys have opposed the motion, or in the alternative moved to dismiss the State's petition, though no petition was filed. The District Attorney's office filed a letter submission supporting the State's application, which has also been considered. (See People v Schaffer, 86 NY2d 460 [1995].) Upon review of the parties' submissions, the State's application is denied for lack of standing. There is no procedural mechanism for the State to intervene in this proceeding and request relief via motion and, more importantly, the State has no basis to seek relief under Jackson v Indiana, a case advancing the rights of the accused under the Equal Protection and Due Process Clauses of the United States Constitution.

B.D., 64 years old, was indicted for attempted murder in the second degree and related charges stemming from an incident on September 7, 2005. Defendant was initially examined pursuant to Criminal Procedure Law article 730 in 2005 and found unfit to stand trial pursuant to that examination in early 2006. Since 2006, B.D. has undergone 23 subsequent examinations and has been found fit six times, the last time in 2016. B.D. was again found unfit in January 2017 without the criminal case having progressed to trial, and has been subject to successive criminal retention orders since that time. (See CPL 730.50 [2].) Defendant is receiving jail credit toward release at the{**79 Misc 3d at 922} expiration of two thirds of his maximum sentence. (See CPL 730.50 [3], [4].) The parties agree that the defendant is unlikely to be found fit before the expiration of two thirds of his authorized maximum sentence, which is approximately in September 2024.

Standing

OMH lacks standing to file a motion in this case. Under New York law, there is no procedural vehicle for a nonparty to intervene or be joined in a criminal proceeding. A nonparty may only supplement the arguments made to a court by a party, by seeking leave to appear as amicus curiae. (See People v Combest, 4 NY3d 859 [2005].) The Attorney General, representing OMH, states that it is initiating the process of converting the defendant from article 730 status to civil status. The Attorney General does not cite to any authority explicitly permitting this procedure, although it was indirectly approved by some courts of coordinate jurisdiction. Those cases—reported and unreported—do not address how the State could act as a party and intervene by motion in a criminal proceeding. (E.g. People v Egle, 56 Misc 3d 1141 [Sup Ct, Kings County 2017].) This court finds the State's motion for "Jackson relief" subject to dismissal for lack of standing without regard to its merits. However, to avoid the potential for a refiling via petition of some kind, the State's more substantive legal argument will be addressed.

Federal Law

Research reveals that no other state has sought to leverage Jackson v Indiana (406 US 715 [1972]) to its advantage^[FN1] over a detained defendant's objection. Jackson v Indiana is a case upholding the equal protection and due process rights of detainees{**79 Misc 3d at 923} under the United States Constitution. In the 1972 case before the Supreme Court of the United States, the plaintiff Jackson was found to lack sufficient comprehension to assist in his defense against charges of robbery. He had been committed under Indiana state law (former Ind Stat Ann § 9-1706a) to the custody of Indiana's Department of Health until such time as he became competent to stand trial on the robbery charge. Jackson's counsel filed a motion—styled as one for a new trial—and argued for his release due to the extreme unlikelihood that Jackson could ever participate in his own defense. Counsel asserted that Jackson's ongoing confinement was tantamount to a lifetime sentence without a conviction, in violation of his equal protection and due process rights under the Fourteenth Amendment to the United States Constitution. The Supreme Court, noting that Jackson had served the maximum sentencing time under Indiana criminal law, found that the state could not continue to hold him in criminal detention awaiting trial and thus subject him to a more stringent standard for release than all others similarly situated, an equal protection violation. (Id.; see also Baxstrom v Herold, 383 US 107 [1966].) On similar grounds, the Court also held that Jackson's confinement did not meet the Fourteenth Amendment's guarantee of due process. (Jackson v Indiana, 406 US at 731.) The Court observed that the Indiana statutory [*3]scheme was similar to federal laws regarding detention of a defendant lacking capacity to participate in a defense at trial. Federal circuit courts had found improper any straightforward application of the federal commitment statutes requiring confinement until such time as the defendant was competent, on the ground that indefinite confinement violated due process. (See id. at 733 [citing numerous cases since the High Court's discussion of this issue in Greenwood v United States (350 US 366 [1956])].) The Supreme Court ultimately granted Jackson the relief he sought, releasing him to civil commitment, and Indiana was compelled to proceed under its civil commitment statute for ongoing orders to retain Jackson civilly.

The Supreme Court in Jackson v Indiana even noted with approval New York's then recently enacted statute—Criminal Procedure Law § 730.50—because it mandated release and dismissal of charges against incompetent defendants after their commitment for two thirds of their maximum potential prison sentence. Ironically, the New York State Attorney General is now seeking to lengthen B.D.'s incarceration through this precedent.{**79 Misc 3d at 924}

New York Law

The New York Court of Appeals has called Jackson an "alternative" procedural vehicle to article 730. (See People v Lewis, 95 NY2d 539, 545 [2000].) The way the two procedures play out is this: CPL 730.50 (3) permits a defendant who has served two thirds of the maximum sentence time under the indictment to seek dismissal. A defendant lacking capacity cannot seek relief earlier under the Criminal Procedure Law. The Court of Appeals in People v Schaffer (86 NY2d 460 [1995]) determined that a defendant could not use CPL 210.40 to have a case dismissed in the interest of justice even if it was extremely unlikely that the defendant could ever gain the mental capacity to stand trial on criminal charges. The defendant would have to wait the "two-thirds" time necessary in criminal confinement to qualify for dismissal under article 730.

The Supreme Court's decision in Jackson v Indiana, however, enables a defendant to seek early termination of criminal custody and transfer to civil commitment on the grounds that their capacity to stand trial will most likely never be realized. If the defendant does utilize and prevail under Jackson, the Court of Appeals has ruled the defendant cannot subsequently seek dismissal of the criminal proceeding at the two-thirds mark under CPL 730.50. (See People v Lewis, 95 NY2d 539 [2000].) In People v Lewis, the Court held that a defendant who had sought and received release to civil commitment under Jackson long before his maximum sentence expired could not use time periods of civil commitment to count towards dismissal time under article 730. While a manslaughter charge was pending, the defendant Lewis had moved for and was granted release to civil commitment under article 9 of the Mental Hygiene Law. He was thus no longer confined under a criminal order of commitment. When Lewis moved for release under the Criminal Procedure Law, having served two thirds of his maximum authorized sentence, the Court of Appeals denied the motion. The Court found that the many years the defendant spent in civil commitment did not count under article 730. The two kinds of commitments were not interchangeable; only orders of commitment issued by a court exercising criminal jurisdiction fell under article 730. The Court pointed out that if a criminal defendant committed civilly is found not to constitute a danger to self or others, they would be subject to release (or, perhaps, bail or other securing order). (Id. at 548.) This is because defendants confined under the Criminal Procedure{**79 Misc 3d at 925} Law who lack capacity require continuous treatment (see CPL 730.50), but have a right to be treated in the least restrictive environment. (See People ex [*4]rel. Jesse F. v Bennett, 242 AD2d 342 [2d Dept 1997].) Further, given the Court of Appeals' recent decision in People ex rel. Molinaro v Warden, Rikers Is. (39 NY3d 120 [2022]), the treatment might have to be in a non-confinement setting, depending on what a court originally sets as the securing order in the criminal proceeding.

In contrast to the facts in People v Lewis (95 NY2d 539 [2000]), the defendant here has been subject to criminal orders of commitment and has not sought Jackson relief himself. B.D. has therefore not removed himself from the running of the clock under "prescribed" periods of detention. B.D. asserts through counsel that he will seek to utilize the article 730 release provisions when he has served two thirds of his authorized imprisonment time. As the court recognized in People v Elizabeth P. (34 Misc 3d 647 [Sup Ct, NY County 2011]), to grant OMH's petition under the circumstances present here would not, in actuality or effect, be a grant of relief. (Accord People v Juan A., Sup Ct, NY County, 2012, Conviser, J., No. 6409-2005 [unreported].)^[FN2] Not only would the defendant be deprived of his remedy under the Criminal Procedure Law, he would be charged for his care. While incapacitated defendants are not liable for their care and treatment under criminal commitment (see Mental Hygiene Law § 43.03), if transferred to civil commitment they become responsible. (See State of New York v Patricia II., 6 NY3d 160 [2006].) The Attorney General suggests that OMH could waive its lien on current and future resources if the defendant were indigent, but that is a unilateral decision in the discretion of the agency. Since the parties agree that treatment does not generally change in state-run civil commitment, fiscal concerns may have indeed played a role in the State's decision to make this application.

The court declines to allow the state agency to use Jackson and this case as a procedural mechanism to short-circuit the procedure that exists under the Mental Hygiene Law. If the defendant is still not only incapable of assisting in his own{**79 Misc 3d at 926} defense at trial at the expiration of his two-thirds maximum time, but also a danger to himself or others, OMH could then use the appropriate civil procedure to have him civilly committed under the Mental Hygiene Law. B.D.'s criminal commitment may be "fast receding into the past" (see People v Egle, 56 Misc 3d 1141, 1147 [Sup Ct, Kings County 2017]), but that observation hardly gives the State license to weaponize Jackson and deny him the benefit of the operation of the Penal Law available to other defendants. Any deprivation of liberty, even one for 24 hours, triggers constitutional concern. "Once a state has granted prisoners a liberty interest . . . due process protections are necessary to ensure that the state-created right is not arbitrarily abrogated." (Vitek v Jones, 445 US 480, 488-489 [1980] [internal quotation marks omitted]; see also People ex rel. Maxian v Brown, 77 NY2d 422 [1991].) The Supreme Court stated, "[t]he harm to the individual is just as great if the State, without reasonable justification, can apply standards making [their] commitment a permanent one when standards generally applicable to all others afford [them] a substantial opportunity for early release." (Jackson v Indiana, 406 US 715, 729 [1972].) Here, admittedly the commitment is not permanent, but relief under Jackson v Indiana is a one-way street to protect the constitutional rights of the accused, something the State's application will not accomplish.

The motion by the New York State Attorney General on behalf of OMH is denied for lack of standing under the Criminal Procedure Law, and lack of standing under the constitutional precedent it seeks to enforce.