People v. PanesgaPeople v. Panesga
The issue is whether a defendant, before the court on a violation of probation (VOP), may be examined as to his fitness to proceed, pursuant to CPL article 730, where disposition of the VOP could result in vacatur of the previously imposed probationary sentence and the imposition of a jail term.
On February 26, 1993, defendant was convicted upon an Alford plea of attempted robbery in the second degree, a "D” violent felony. The case involved the theft of 12 bottles of Revlon nail polish from a Walgreens drugstore and the subsequent attack with a razor directed at the security officеr who had attempted to stop him. The nail polish and the razor were both recovered after the arrest. The plea was with the District Attorney’s consent and was to carry a sentence of five years’ probation, conditioned upon defendant entering and remaining in a program of psychiatric treatment and counselling. Although he had a lengthy arrest record, this was his first felony conviction. His prior involvement with the law was marihuana related and dated back to 1987.
On April 16, 1993, defendant was sentenced to five years’ probation, conditioned upon his submission to psychiatric treatment and counselling as directed by the Department of Probation. At the time, he executed an acknowledgment that a condition of his probation was that he "[ujndergo medical, psychiatric, or other appropriate treatment and remain in a specified institution or program when required for that purpose if so directed by the Court or the Probation Officer.”
On October 13, 1993, upon defendant’s failure to attend a psychiatric program and to continue prescribed medication, a violation of probation was filed. The VOP also alleged that he had failed to report to his probation officer at regularly prescribed intervals and the probation officer noted that he received a telephone call from defendant’s mother that he hаd threatened to kill her. Upon defendant’s failure to appear, a warrant was issued.
On January 3, 1994, defendant was returned on the warrant, at which time he was arraigned on the violation of probation and bail was set. The matter was adjourned for an updated probation report and a suicide watch and medical attention were directed. After a CPL article 390 examination was ordered, primarily at defense counsel’s request, on March
The article 730 examination reports concluded that Mr. Panesga was not fit to proceed. Dr. Schwartz found a marked deterioration in dеfendant’s mental state since his examination in aid of sentencing, originally performed in April 1993, concluding that defendant’s schizophrenic condition had regressed to a state of psychosis, with paranoid and grandiose delusions and a personality disorder. The report rеfers to defendant’s beliefs that Adolph Hitler was his grandfather; FBI and CIA agents had been planted in the unit where he had been jailed at Bikers Island; his mother is not his real mother; he came from China and some Chinese people had threatened to steal his gun and VCR; and he is involved in one of the largest drug rings in the United States and has substantial sums of money in Zurich. Defendant expressed the belief that the article 730 examination was to discover and understand the "voices,” which he referred to as "disturbances in my life.” Dr. Schwartz’ diagnosis was "[sjehizophrenia, paranoid, chrоnic with acute exacerbation.” Both concluded that he was not legally fit to proceed. An update report to the court from the Kings County Hospital Center, dated March 8, 1994, advised that defendant had threatened to kill the referring psychiatrist from Rikers Island.
Defense counsel has taken the position that, in the present posture of this proceeding, as a violation of probation, an examination pursuant to CPL article 730 may not be directed, since defendant has already been sentenced and there is no criminal proceeding presently pending. Thus, it has been argued that, notwithstanding that disposition of the VOP proceeding may result in defendant being resentenced to a term of incarceration, and the original sentence vacated for that purpose, the court’s jurisdiction is limited to an еxamination in aid of sentencing, pursuant to CPL article 390.
I disagree. In my view, in a situation where a defendant has been sentenced to probation, the violation of which may result in the imposition of a jail sentence, a court should retain necessary jurisdiction to direct appropriate relief, including hospitalization, for a defendant who is unfit to proceed.
In the absence of such authority, the right to an adversarial
While I am mindful that CPL 730.30, on its face, appears to authorize a CPL article 730 examination only during the pendency of a criminal actiоn, between arraignment and sentence, the statute does not purport to address the type of situation which exists in a violation of probation proceeding. The attention of the Legislature ought to be directed to correct the apparent omission. Nеvertheless, in such case, where a defendant receives a revocable probationary sentence, the violation of which could result in vacatur of the sentence and imposition of a term of incarceration, some protection must be affоrded to one who is "incapacitated” and, thereby, unfit to proceed, i.e., where, "as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense.” (CPL 730.10 [1].)
Notwithstanding the apparent legislative fаilure to address this problem, it is inconceivable that the Legislature intended to leave without an available remedy a person in the position of this defendant, who is clearly unfit and unable to assist his attorney in defending the VOP proceeding. The unavailability of the CPL article 730 еxamination procedure to one subject to a revocable probationary term, solely because sentence has
In my view, neither alternative is acceptable. In the absence of any legislative proscription, the court should retain jurisdiction over a defendant who received a revocable probationary term and against whom a VOP proceeding has been brought. The efficacy of the proceeding and the protection owed to the public should permit the court, in a proper case, to order a CPL article 730 examination and, after compliance with the statutory standard and procedure, direct that defendant be committed to the custody of the Commissioner of Mental Hygiene. Only this procedure would afford defendant needed hospital and psychiatric treatment, while, at the same time, ensure the security of the public against his premature release and preserve the viability of the VOP as a criminal proceeding should defendant become fit tо proceed in the future.
Whitree v State of New York (
Similarly, this court retained jurisdiction over defendant, who received a revocable sentence of probation, subject to specific conditions alleged not to have been complied with. A violation оf probation having been properly commenced, after a VOP hearing, upon satisfactory proof, the court could vacate the sentence and resentence defendant to a term in jail. Plainly, to that extent, defendant was still subject to a criminal prоceeding. This in my view, in the absence of legislative provision to the contrary, is sufficient to subject defendant to judicial direction of a CPL article 730 examination, consistent with the statutory procedure therefor and, where appropriate, commitment to the сustody of the Commissioner of Mental Hygiene. This is especially so in a case like the present one, where there have been repeated threats of violence to members of the public, namely, defendant’s mother and the treating psychiatrist at Hikers Island.
Under the circumstances, in view of the undisputed opinions that defendant is unfit to proceed, in part, as a result of his psychotic condition and threats of violence, both to himself and others, the conclusion is inescapable that he should be committed to the custody of thе Commissioner of Mental Hygiene, pending further order of the court. This direction should be made, notwithstanding the failure or refusal of defense counsel to seek such relief by appropriate application to confirm the findings and conclusions of the CPL article 730 exаmination.
Accordingly, upon the court’s own motion and, at the request of the District Attorney and the Department of Proba