Lopez v. Evans
| Decision Date | 07 April 2015 |
| Citation | 31 N.E.3d 1197,9 N.Y.S.3d 601,2015 N.Y. Slip Op. 02868,25 N.Y.3d 199 |
| Parties | In the Matter of Edwin LOPEZ, Respondent, v. Andrea EVANS, Chairwoman, New York State Division of Parole, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Eric T. Schneiderman, Attorney General, New York City (Steven C. Wu, Won S. Shin, Barbara D. Underwood and Richard P. Dearing of counsel), for appellant.
The Legal Aid Society, New York City (Elon Harpaz and Scott A. Rosenberg of counsel), for respondent.
Stroock & Stroock & Lavan LLP, New York City (Curtis C. Mechling, Patrick N. Petrocelli and Benjamin C. Woodruff of counsel), for The Fortune Society, amicus curiae.
The Association of the Bar of the City of New York, New York City (Allegra Glashausser, Katherine Bromberg, Matthew Main and Elizabeth Sisul of counsel), for The Association of the Bar of the City of New York, amicus curiae.
Cleary Gottlieb Steen & Hamilton LLP, New York City (Thomas J. Moloney, Mark S. Grube, Armine Sanamyan and Elizabeth Danielle Byam of counsel), for Mental Hygiene Legal Service, amicus curiae.
We hold that when a parolee lacks mental competency to stand trial, it is a violation of his or her due process rights to conduct a parole revocation hearing. In light of our concerns about the application of the pertinent statutes to such individuals, we urge the legislature to address the issues raised by the parties to this litigation.
In 1999, petitioner Edwin Lopez, who had been convicted of murder and was serving a sentence of 15 years to life in prison, was released on lifetime parole supervision. Four years later, he was charged with misdemeanor assault. He was found to be unfit to stand trial under CPL 730.40(1), which governs proceedings related to a criminal defendant's fitness to proceed to trial. Lopez was committed to the custody of the Office of Mental Health (OMH), under CPL 730.40(2). The assault charge was dismissed pursuant to the same subdivision, which provides that when a defendant who has been charged with a misdemeanor is found to be unfit to stand trial and committed to OMH's custody, the criminal court is required to dismiss the accusatory instrument. Lopez was admitted to a psychiatric center and, subsequently, OMH retained custody by a series of retention orders and voluntary admissions under Mental Hygiene Law article 9 (Hospitalization of the Mentally Ill).
On August 11, 2008, while still committed, Lopez attacked a fellow patient, resulting in assault and harassment charges. Criminal Court ordered a psychiatric examination pursuant to CPL article 730 to determine his fitness to stand trial. The two psychologists who examined him opined that Lopez was not competent to stand trial. They found that Lopez likely suffered from dementia, which “would prevent [him] from constructing a rational defense and collaboratively working with his attorney.” He was “unable to talk about his case in any intelligent fashion.” Criminal Court adopted the psychologists' findings and the charges were dismissed. Lopez was again committed to the custody of OMH pursuant to CPL 730.40(2).
Meanwhile, the New York State Department of Corrections and Community Supervision (DOCCS) commenced parole revocation proceedings against Lopez, based on the August 11 incident, charging him with violating a condition of his parole, 9 NYCRR 8003.2(h) ().
As a result, Lopez was transferred from the custody of OMH to that of DOCCS. At the start of the final revocation hearings, Lopez's appointed counsel requested an adjournment stating that she needed time to assess Lopez's mental condition. Counsel contended that the revocation hearing was being held in violation of her client's due process rights. The Administrative Law Judge (ALJ) denied counsel's request. Testimony was heard regarding the alleged assault, and the ALJ found that Lopez had violated 9 NYCRR 8003.2(h).
During the dispositional phase of the parole revocation hearings, Lopez's counsel offered the testimony of a social worker who opined that “the best thing” for Lopez would be for him to be restored to parole and returned to OMH's custody.1 The ALJ, however, recommended parole revocation, determining that reincarceration was appropriate, with a 24–month time assessment. Lopez was “a violent offender,” the ALJ wrote.
The Division of Parole adopted the ALJ's recommendation on December 12, 2008, and Lopez was incarcerated.2 His administrative appeal was denied.3
In August 2010, while incarcerated, Lopez, represented by counsel, commenced this CPLR article 78 proceeding, seeking to annul the determination of the Division of Parole, vacate the parole revocation, and obtain release from custody. Counsel contended that due process prohibits the Division of Parole from proceeding with a revocation hearing against a person who has been deemed mentally unfit to proceed to trial. The Division of Parole moved to deny Lopez's petition.
Supreme Court granted the motion and dismissed the proceeding, holding that an assertion of incompetency does not bar parole revocation proceedings. The court cited People ex rel. Newcomb v. Metz, 64 A.D.2d 219, 409 N.Y.S.2d 554 (3d Dept.1978) and Matter of Newcomb v. New York State Bd. of Parole, 88 A.D.2d 1098, 452 N.Y.S.2d 912 (3d Dept.1982), lv. denied 57 N.Y.2d 605 (1982), cert. denied 459 U.S. 1176, 103 S.Ct. 828, 74 L.Ed.2d 1023 (1983). Those decisions held that the Parole Board must consider a parolee's lack of mental competency as a mitigating factor when considering alleged parole violations, but “a determination of this question is not a condition precedent to the parole revocation proceeding” (Metz, 64 A.D.2d at 223, 409 N.Y.S.2d 554 ; see New York State Bd. of Parole, 88 A.D.2d at 1098–1099, 452 N.Y.S.2d 912 ; accord People ex rel. Porter v. Smith, 71 A.D.2d 1056, 420 N.Y.S.2d 817 [4th Dept.1979] ).
The Appellate Division reversed, granted Lopez's petition, and reinstated Lopez to parole, holding that “the basic requirements of due process applicable to a parole revocation proceeding should now be construed to preclude going forward with such a proceeding in the event it is determined that the parolee is not mentally competent to participate in the hearing or to assist his counsel in doing so” (104 A.D.3d 105, 108, 957 N.Y.S.2d 59 [1st Dept.2012] [citation omitted] ). In dicta, the Appellate Division took the position, over a single-Justice concurrence, that “the statute authorizing the Parole Board to determine whether a parolee has violated parole necessarily confers upon the Board authority to determine whether the parolee possesses the mental competence required for such a determination to be rendered in accordance with due process” (104 A.D.3d at 110–111, 957 N.Y.S.2d 59 ).
The Division of Parole appeals as of right under CPLR 5601(b)(1). We now affirm.
In People ex rel. Menechino v. Warden, Green Haven State Prison, 27 N.Y.2d 376, 318 N.Y.S.2d 449, 267 N.E.2d 238 (1971), this Court held that the demands of due process require that a parolee be represented by a lawyer and entitled to introduce testimony, in a parole revocation hearing, if he or she so chooses. We observed that (id. at 382, 318 N.Y.S.2d 449, 267 N.E.2d 238 [] ). We concluded that this constitutional guarantee demands representation by counsel “if the search for truth is not to be sacrificed to administrative speed and convenience” (id. at 383, 318 N.Y.S.2d 449, 267 N.E.2d 238 ).
Here, once again, the constitutional question implicates the balance between the government's interest in efficient administration of parole and the parolee's right to defend himself or herself (see id. at 382–384, 318 N.Y.S.2d 449, 267 N.E.2d 238 ; see generally Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 [1976] ). In this calculus, truth cannot give way to efficiency. In the present case, as in most others, it is only the parolee himself or herself who is in a position to know the facts and assist in his or her defense. When the parolee, by reason of mental incapacity, is unable to understand, recall, or express such vital information, it is inconsistent with due process for a parole board to proceed with a revocation hearing.
It is, of course, well established—as a matter of common law and also of due process—that “a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial” (Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 [1975] ). The State contends that parole revocation proceedings do not raise the same concerns because parole revocation is not part of a criminal prosecution.
It is true that parole revocation deprives an individual only of “a restricted form of liberty” and thus implicates “some form of due process [but] not the full panoply of rights due a defendant in a criminal proceeding” (People ex rel. Matthews v. New York State Div. of Parole, 58 N.Y.2d 196, 204, 460 N.Y.S.2d 746, 447 N.E.2d 689 [1983], citing Morrissey v. Brewer, 408 U.S. 471, 480–484, 92 S.Ct. 2593, 33 L.Ed.2d 484 [1972] ). Just as due process requires us to safeguard the...
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