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Keywords

appealhearingtrialmotionleaseparoledue processrespondentmotion to dismissparole board
appealhearingtrialmotionleaseparoledue processrespondentmotion to dismissparole board

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Lopez, Matter of

Facts

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, 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. Thereafter, a final order of observation was filed committing petitioner to the custody of the Office of Mental Health, and the criminal charges against him were dismissed. Two days after the date of the reports finding the prisoner unfit to stand trial, a parole revocation proceeding was commenced against him.

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, 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. Thereafter, a final order of observation was filed committing petitioner to the custody of the Office of Mental Health, and the criminal charges against him were dismissed. Two days after the date of the reports finding the prisoner unfit to stand trial, a parole revocation proceeding was commenced against him.

Issue

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.

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.

Rule

We agree with petitioner that the basic requirements of due process applicable to a parole revocation proceeding (see Morrissey v Brewer, 408 US 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.

We agree with petitioner that the basic requirements of due process applicable to a parole revocation proceeding (see Morrissey v Brewer, 408 US 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.

Analysis

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. Since a determination of incompetency was here made independent of the parole revocation proceeding, the instant appeal does not present us with the questions of whether the Parole Board has authority to determine a parolee's competence to undergo a revocation hearing and, if not, what should be done when it appears that a parolee charged with a violation may be incompetent.

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. Since a determination of incompetency was here made independent of the parole revocation proceeding, the instant appeal does not present us with the questions of whether the Parole Board has authority to determine a parolee's competence to undergo a revocation hearing and, if not, what should be done when it appears that a parolee charged with a violation may be incompetent.

Conclusion

Accordingly, the order of the Supreme Court, Bronx County (Mark S. Friedlander, J.), entered February 4, 2011, which denied the CPLR article 78 petition to annul respondent's determination finding that petitioner violated the conditions of his parole, revoking his parole and imposing on him an assessment of 24 months of additional imprisonment, and granted respondent's cross motion to dismiss the petition, should be reversed, on the law, without costs, the petition granted, respondent's determination annulled.

Accordingly, the order of the Supreme Court, Bronx County (Mark S. Friedlander, J.), entered February 4, 2011, which denied the CPLR article 78 petition to annul respondent's determination finding that petitioner violated the conditions of his parole, revoking his parole and imposing on him an assessment of 24 months of additional imprisonment, and granted respondent's cross motion to dismiss the petition, should be reversed, on the law, without costs, the petition granted, respondent's determination annulled.

Who won?

The petitioner, Edwin Lopez, prevailed in the case because the court found that the parole revocation hearing could not proceed while he was deemed mentally incompetent.

The petitioner, Edwin Lopez, prevailed in the case because the court found that the parole revocation hearing could not proceed while he was deemed mentally incompetent.

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