17.7 - 1. Competency

• Jurisdiction: New York

1. Competency

A defendant cannot be tried for commission of a crime if he is an “incapacitated person”—that is, one who “as a result of mental disease or defect lacks capacity to understand the proceedings against him or assist in his own defense.”²⁵⁶⁹ If the defendant has a grasp of the proceedings and can, with a modicum of intelligence, assist counsel, he will not be considered incapacitated, and the trial will proceed if the judge determines he can get a fair trial under the circumstances.²⁵⁷⁰ An argument that a defendant’s age and experience with the criminal justice system raised a question of fact as to the defendant’s competence to properly enter a guilty plea has been specifically rejected.²⁵⁷¹

To be found competent, however, the defendant must have more than a superficial knowledge that he is charged with a crime; there must be some depth to his understanding.²⁵⁷² It has been held that a psychotic condition in remission that may activate at any time or a condition that requires treatment that would benefit the defendant is not necessarily such a condition as would render the defendant incompetent to stand trial.²⁵⁷³

What if the defendant’s mental problem is amnesia, and he claims not to remember anything that happened at the time and place of the alleged crime? How can he possibly assist his counsel in his defense? The Court of Appeals passed on this question in a case where the defendant claimed that, because of his retrograde amnesia (the genuineness of which was conceded by the People), he would be unable to understand the proceedings and to assist in his defense, and that the trial court’s determination that he was not an incapacitated person in light of these facts rendered his subsequent guilty plea involuntary, thereby denying him due process.²⁵⁷⁴

The Court rejected the claim (adopting and applying a test²⁵⁷⁵ from the federal courts), focusing on the extent to which the amnesia would affect the defendant’s ability to consult with counsel and to testify in his own behalf, the extent to which the evidence could be extrinsically reconstructed by defense counsel without the help of his client, the extent to which the prosecution could assist the defendant in reconstructing the evidence, the strength of the People’s case and other factors that bear on the possibility of having a fair trial. The Wilson court had held it very important to focus on whether the People’s case is such as to negate a reasonable hypothesis of innocence. If there is any substantial possibility that the accused could, but for his amnesia, establish an alibi or other defense, it should be presumed that he would have been able to do so.²⁵⁷⁶

When the court believes that the defendant may be an incapacitated person, it must issue an order of examination under CPL § 730.30(1). The defendant must then be examined by two qualified psychiatrists or by one qualified psychiatrist and one certified psychologist to determine if he is so incapacitated or mentally defective as to be unfit to proceed.²⁵⁷⁷ The defendant has the right to have counsel present during the psychiatric examination.²⁵⁷⁸

When the reports show that the psychiatric examiners believe the defendant is an incapacitated person, the court may conduct a hearing under CPL § 730.30(3) to determine the defendant’s capacity. If sufficient doubt exists from the evidence as to the defendant’s competency, he has a constitutional right to a hearing on the issue.²⁵⁷⁹ If, later on at trial, evidence or the defendant’s actions and statements seem to indicate a problem, the trial court should sua sponte hold a hearing as to the defendant’s competency; failure to do so is an error of discretion.²⁵⁸⁰ However, in People v. Tortorici,²⁵⁸¹ the Court of Appeals held that a trial court had not abused its discretion in failing to order a new competency hearing following the opinion of a prosecution psychiatrist on the eve of trial that the defendant was no longer fit to proceed; ten months earlier the defendant had been certified as fit to proceed. The Court of Appeals held that a defendant is presumed competent and that it was up to the trial court to consider all the expert medical proof together with its own observations to determine whether a new hearing should be held.²⁵⁸²

If there is no evidence of incapacity and no reasonable ground for believing the defendant is incompetent, failure to hold a competency hearing is not a denial of due process.²⁵⁸³ When the examination reports show the defendant is considered competent to stand trial or enter a plea, the court may still order a hearing pursuant to CPL § 730.30(2) and make its own determination. Regardless of what the reports show, the court must hold a hearing if either the district attorney or the defendant requests one. The defendant cannot waive his right to a competency hearing by failing to make a timely request or even by pleading guilty.²⁵⁸⁴ The issue may be raised on appeal, even absent an objection to the trial court’s failure to order examination, since “there is inherent contradiction in arguing that a defendant may be incompetent and yet knowingly and intelligently waive his right to have a court determine his capacity to stand trial.”²⁵⁸⁵

Where the examination reports conflict on the question of competency, the court must conduct a competency hearing.²⁵⁸⁶ However, the Court of Appeals has held that if the defendant is certified as competent by the psychiatric examiners, and defense counsel does not move for a post-examination hearing, the court does not have to conduct, sua sponte, a competency hearing unless the record establishes a sufficient doubt as to the defendant’s mental competency.²⁵⁸⁷ Thus, to ensure the defendant’s right to a competency hearing where such a hearing is desired by the defense, defense counsel must formally move that the court hold the hearing.²⁵⁸⁸

Although psychiatric testimony in a competency hearing is essential to the ultimate determination, the question of competency is a legal one and not a medical one. The ultimate decision lies with the court and not with the psychiatrists.²⁵⁸⁹ Lower courts have considered factors of competency beyond those outlined in People v. Francabandera²⁵⁹⁰ and set forth in the statute. Such factors include the following: Is the defendant oriented as to time and place? Can he perceive, recall and relate? Does he have a rudimentary understanding of the trial process and the roles of the judge, jury, prosecutor and defense attorney? Can he establish a working relationship with his attorney? Does he have sufficient intelligence and judgment to listen to advice? Is his mental state sufficiently stable to withstand the stress of the trial without a mental breakdown?²⁵⁹¹

In a competency hearing, the defendant has the initial burden of going forward with evidence to rebut the presumption of competency.²⁵⁹² The People, however, have the burden of showing that the defendant is competent. They must do so only by a preponderance of the evidence, since the issue is collateral to the question of guilt or innocence.²⁵⁹³ In fact, in Cooper v. Oklahoma,²⁵⁹⁴ the Supreme Court, while striking down an Oklahoma statute that imposed a burden of clear and convincing evidence upon a defendant as violative of due process, held that a state may require a defendant to shoulder the burden of proving mental incompetence by a standard of a preponderance of evidence. Since New York’s statute adopts the preponderance of evidence standard, it appears that the New York State statute clearly would pass constitutional scrutiny.

When a local criminal court determines that a defendant is an incapacitated person, it must issue a final or temporary order of observation, committing the...