People v. Tsoucalas

• Decision Date: 14 December 2015
• Docket Number: No. 222–2010.,222–2010.
• Citation: 28 N.Y.S.3d 650 (Table)
• Parties: The PEOPLE of the State of New York, Plaintiff, v. George TSOUCALAS, Defendant.
• Court: New York County Court

28 N.Y.S.3d 650 (Table)

The PEOPLE of the State of New York, Plaintiff,

v.George TSOUCALAS, Defendant.

No. 222–2010.

County Court, Sullivan County, New York.

Dec. 14, 2015.

Jeremy Kaufman, Esq., Gary Greenwald & Partners, PC, Chester, NY, Attorney for Defendant.

Hon. James R. Farrell, Sullivan County District Attorney by Meagan K. Galligan, Executive ADA, of counsel, Monticello, Attorney for the People.

FRANK J. LaBUDA

, J.

Defendant moves this Court, pursuant to CPL § 730.50

, for an order dismissing the indictment. The People have submitted an affirmation in opposition.

On or about October 27, 2010, a Sullivan County Grand Jury returned the within Indictment, charging Defendant with one count of Sexual Abuse in the First Degree (PL § 130.65(3) ) and one count of Endangering the Welfare of a Child (PL § 260.10 ). Defendant was arraigned on the Indictment in Sullivan County Court over three years ago.

Less than two months after his arraignment on the instant charges, Defendant was committed to the custody of the Commissioner of the Office of Mental Health. He was committed on or about December 23, 2010. On or about November 25, 2011, Dawn Mulder, Principal Attorney at the Mid–Hudson Forensic Psychiatric Center (hereinafter, "MHFPC"), contacted this Court indicating an intention of making an application pursuant to CPL Article 730 for Defendant's retention. Defendant submitted a copy of the retention application, in which Peggy Healy, Executive Director of MHFPC, affirmed that Defendant "has been carefully observed and examined, and it is my opinion that the defendant continues to be an incapacitated person." At present, Defendant has indicated he is still an incapacitated person and resides full-time at the Sullivan County Adult Care Facility in Liberty, New York. His residence began there in July, 2013.

Defendant urges this Court to dismiss the Indictment on the ground he is mentally incompetent, legally incompetent, and unfit to stand trial, with no hope that his present mental situation will change or improve. Defendant relies on CPL § 730.50

, arguing that once a court determines a defendant charged with a felony is an "incapacitated person," it must issue an Order of Commitment for a period not to exceed one year. Whoever then has custody of said defendant can apply for an Order of Retention, to last up to two years, after the initial one year period expires, thereby keeping an incapacitated defendant confined. The total amount of time a defendant may be confined "must not exceed two-thirds of the authorized maximum term of imprisonment for the highest felony charged in the indictment." CPL § 730.50(3). At such time, a criminal action pending against a defendant shall terminate for all purposes. CPL § 730.50(4). The New York State Commissioner of Mental Health must then certify to the court and District Attorney that said defendant was in his or her custody on said expiration date. Upon receipt of such certification, the court must dismiss the indictment.

Defendant points out that he has been incapacitated for two-thirds of the authorized maximum term of imprisonment for the highest felony charged in the indictment—Sexual Abuse in the First Degree (PL § 130.65(3) ), a Class D violent felony. The maximum term of imprisonment for that charge is a seven year determinate sentence, which Defendant argues would require his release after four years and eight months, or no later than August 23, 2015. In light of the above-, Defendant requests that this Court direct the NYS Commissioner of Mental Health to certify that Defendant was in his or her custody on August 23, 2015, and to dismiss Indictment No. 222–2010.

The People argue that Defendant's motion to dismiss the indictment must be denied because Defendant's status was converted from criminal commitment to civil commitment, a/k/a a "Jackson" commitment. In fact, a defendant is not entitled to avail himself of a statutory dismissal pursuant to CPL § 730.50

, when...