Lopez v. Evans

Citation2012 N.Y. Slip Op. 09188,104 A.D.3d 105,957 N.Y.S.2d 59
PartiesIn re Edwin LOPEZ, Petitioner–Appellant, v. Andrea EVANS, etc., Respondent–Respondent.
Decision Date27 December 2012
CourtNew York Supreme Court Appellate Division

104 A.D.3d 105
957 N.Y.S.2d 59
2012 N.Y. Slip Op. 09188

In re Edwin LOPEZ, Petitioner–Appellant,
Andrea EVANS, etc., Respondent–Respondent.

Supreme Court, Appellate Division, First Department, New York.

Dec. 27, 2012.

[957 N.Y.S.2d 60]

Steven Banks, The Legal Aid Society, New York (Elon Harpaz of counsel), for appellant.

[957 N.Y.S.2d 61]

Eric T. Schneiderman, Attorney General, New York (Simon Heller and Alison J. Nathan of counsel), for respondent.



This appeal requires us to determine whether a parole revocation proceeding may go forward against a parolee who has been found mentally incompetent to stand trial in a criminal prosecution based on the same charges that are at issue in the revocation proceeding. We hold that, under the circumstances of this case, the revocation proceeding may not go forward.

Petitioner Edwin Lopez was sentenced to 15 years to life on a second-degree murder conviction in the 1970s, and was released from prison to lifetime parole supervision on July 20, 1994. On or about August 11, 2008, while he was a resident of a mental health facility, petitioner allegedly assaulted another patient, for which he was arrested and charged with third-degree assault and two lesser charges. The court ordered a psychiatric examination to determine petitioner's fitness to stand trial ( see CPL article 730), and the two examining psychologists submitted reports, dated August 25, 2008, finding that he suffered from dementia, probably secondary to head trauma, and was unfit to stand trial.1 Thereafter, a final order of observation was filed committing petitioner to the custody of the Office of Mental Health ( see CLP 730.40[1] ), and the criminal charges against him were dismissed ( seeCPL 730.40[2] ).

On August 27, 2008, two days after the date of the reports finding petitioner unfit to stand trial, a parole revocation proceeding was commenced against him. It was alleged that petitioner's conduct in the incident of August 11, 2008—the same incident underlying the aborted criminal prosecution—constituted a violation of the conditions of his parole. Before witnesses were called at the final hearing on November 13, 2008, petitioner's counsel objected to going forward on the ground, among others, that, by reason of his mental disability, as determined in the criminal case, he was unable either to understand the nature of the proceeding or to assist in his own defense. This objection was overruled and, after the hearing was completed on December 12, 2008, the Administrative Law Judge found that petitioner had violated his parole and recommended

[957 N.Y.S.2d 62]

an assessment of 24 months of additional imprisonment, which the Parole Board accepted. On his administrative appeal, petitioner argued that the finding that he was unfit for a criminal trial meant that he was likewise unfit to defend himself in the parole revocation proceeding. In denying the appeal, the administrative panel stated that “mental illness is not an excuse for a parole violation.”

Petitioner subsequently commenced this article 78 proceeding challenging the revocation of his parole. The petition contends that the parole revocation hearing should not have gone forward in light of the finding, rendered just two days before the institution of the parole revocation proceeding, that petitioner was unfit to stand trial on criminal charges based on the same conduct that was alleged to have constituted the parole violation. Petitioner now appeals from the judgment of Supreme Court denying his petition and granting respondent's cross motion to dismiss the proceeding. We reverse. 2

We agree with petitioner that the basic requirements of due process applicable to a parole revocation proceeding ( see Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 [1972] ) 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. As an Indiana appellate court recently observed in considering this issue: “Without competency, the minimal due process rights guaranteed to probationers at probation revocation hearings would be rendered useless” ( Donald v. State, 930 N.E.2d 76, 80 [Ind.App. 2010];see also State v. Qualls, 50 Ohio App.3d 56, 58, 552 N.E.2d 957, 960 [Ohio App. 1988] [“the effectiveness of the minimal (due process) standards enumerated in Morrissey ... may be rendered null if the defendant is not competent to understand and to participate in or to assist counsel in participating in the proceedings”] ). We respectfully decline to follow the contrary holdings on this issue of certain older decisions of other departments of the Appellate Division ( see 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. denied57 N.Y.2d 605 [1982],cert. denied459 U.S. 1176, 103 S.Ct. 828, 74 L.Ed.2d 1023 [1983];People ex rel. Porter v. Smith, 71 A.D.2d 1056, 420 N.Y.S.2d 817 [4th Dept.1979];People ex rel. Newcomb v. Metz, 64 A.D.2d 219, 409 N.Y.S.2d 554 [3d Dept.1978] ).

In this case, there is no question that petitioner was incompetent at the time of his parole revocation hearing. On August 25, 2008, only two days before the parole revocation proceeding was instituted and less than three months before the commencement of the hearing thereon the following November, he was found incompetent to stand trial on criminal charges based on the same conduct alleged to constitute the violation of his parole.3 Since a determination of incompetency was here made independent of the parole revocation

[957 N.Y.S.2d 63]

proceeding, the instant appeal does not present us with the questions of (1) whether the parole board has authority to determine a parolee's competence to undergo a revocation hearing and, (2) if not, what should be done when it appears that a parolee charged with a violation may be incompetent. Nevertheless, the concurrence would have us address these unposed questions in a manner sure to cause significant disruption to the parole system of this state. The concurrence apparently would hold that, until the Legislature enacts statutory provisions specifying the procedures to be followed in determining the competency of an alleged parole violator, the parole board may not make such a determination. Given the holding that an incompetent parolee may not be subjected to a parole revocation hearing, the effect of adopting the concurrence's position would be to bring to a halt any parole revocation proceeding against a person willing to place his or her own competence in question. In essence, this would excuse such a parolee from complying with the conditions of his or her parole until the Legislature acts.

Even if this appeal did present the question of the authority of the parole board to determine the competence of an alleged parole violator, we would see no reason to hold that the board may not render such a determination (in a case where it appears that the parolee's competence may reasonably be questioned) until the Legislature has enacted procedures to govern the making of such a determination. After all, even Newcomb held that the board of parole should, in an appropriate case, “consider[ ] ... a person's mental competency during the parole revocation process” (64 A.D.2d at 222, 409 N.Y.S.2d 554), albeit only as a “possibly mitigating or excusing” factor rather than as a prerequisite to going forward with a revocation hearing (88 A.D.2d at 1098, 452 N.Y.S.2d 912, citing 64 A.D.2d at 223, 409 N.Y.S.2d 554). To be sure, it would be beneficial for the Legislature to enact procedures and schedules to govern competency issues in parole revocation proceedings. However, contrary to the concurrence's assertion that we “agree[ ] that the Legislature must act” (emphasis added), until the Legislature chooses to take action, we are not aware of any impediment, either in constitutional principle or in article 12–B of the Executive Law (governing the jurisdiction and operation of the board of parole), to the board, upon ascertaining that the parolee's competence is in question, receiving evidence on the parolee's mental condition and ruling on his or her competence at the outset of a revocation hearing. Of course, a finding of competence will be subject to judicial review in an article 78 proceeding brought to challenge an ultimate revocation of parole.

The concurrence professes to believe that the absence of a statute expressly authorizing the board to determine the competence of an alleged parole violator means that, until the statutory scheme is amended, a revocation proceeding must come to a halt whenever it reasonably appears that the alleged violator may be incompetent. We disagree. “It is well settled that an agency's powers include not only those expressly conferred, but also those ‘required by necessary implication ’ ” (Matter of Mercy Hosp. of Watertown v. New York State Dept. of Social Servs., 79 N.Y.2d 197, 203, 581 N.Y.S.2d 628, 590 N.E.2d 213 [1992], quoting Matter of City of New York v. State of N.Y. Commn. on Cable Tel., 47 N.Y.2d 89, 92, 416 N.Y.S.2d 786, 390 N.E.2d 293 [1979] [emphasis added]; see also2 N.Y. Jur. 2d, Administrative Law § 26). For example, in Mercy Hospital, the Court of Appeals held that the Department of Social Services' use of random sample audits (rather

[957 N.Y.S.2d 64]

than individual review of all cases within the audit period) to determine whether the petitioner had received Medicaid overpayments was, by necessary implication, within the agency's statutory authority to administer the Medicaid program.

From our holding that an alleged parole violation cannot be adjudicated while the parolee is incompetent, it follows that a determination of the parolee's competence (where it is in question) is a necessary...

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