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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 51 

In the Matter of Edwin Lopez,

 Respondent, 

 v.

Andrea Evans, &c.,

 Appellant.

Steven C. Wu, for appellant.

Elon Harpaz, for respondent.

Fortune Society; Association of the Bar of the City of

New York; Mental Hygiene Legal Service, amici curiae.

PIGOTT, J.:

We hold that when a parolee lacks mental competency to

stand trial, it is a violation of his or her due process rights

to conduct a parole revocation hearing. In light of our concerns

about the application of the pertinent statutes to such

individuals, we urge the Legislature to address the issues raised

by the parties to this litigation.

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I.

In 1999, petitioner Edwin Lopez, who had been convicted

of murder and was serving a sentence of 15 years to life in

prison, was released on lifetime parole supervision. Four years

later, he was charged with misdemeanor assault. He was found to

be unfit to stand trial under CPL 730.40 (1), which governs

proceedings related to a criminal defendant's fitness to proceed

to trial. Lopez was committed to the custody of the Office of

Mental Health (OMH), under CPL 730.40 (2). The assault charge

was dismissed pursuant to the same subsection, which provides

that when a defendant who has been charged with a misdemeanor is

found to be unfit to stand trial and committed to OMH's custody,

the criminal court is required to dismiss the accusatory

instrument. Lopez was admitted to a psychiatric center and,

subsequently, OMH retained custody by a series of retention

orders and voluntary admissions under Mental Hygiene Law article

9 (Hospitalization of the mentally ill).

On August 11, 2008, while still committed, Lopez

attacked a fellow patient, resulting in assault and harassment

charges. Criminal Court ordered a psychiatric examination

pursuant to CPL article 730 to determine his fitness to stand

trial. The two psychologists who examined him opined that Lopez

was not competent to stand trial. They found that Lopez likely

suffered from dementia, which "would prevent [him] from

constructing a rational defense and collaboratively working with

his attorney." He was "unable to talk about his case in any

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intelligent fashion." Criminal Court adopted the psychologists'

findings and the charges were dismissed. Lopez was again

committed to the custody of OMH pursuant to CPL 730.40 (2).

Meanwhile, the New York State Department of Corrections

and Community Supervision (DOCCS) commenced parole revocation

proceedings against Lopez, based on the August 11 incident,

charging him with violating a condition of his parole, 9 NYCRR

8003.2 (h) ("A releasee will not behave in such manner as to

violate the provisions of any law to which he is subject which

provides for penalty of imprisonment, nor will his behavior

threaten the safety or well-being of himself or others").

As a result, Lopez was transferred from the custody of

OMH to that of DOCCS. At the start of the final revocation

hearings, Lopez's appointed counsel requested an adjournment

stating that she needed time to assess Lopez's mental condition. 

Counsel contended that the revocation hearing was being held in

violation of her client's due process rights. The Administrative

Law Judge (ALJ) denied counsel's request. Testimony was heard

regarding the alleged assault, and the ALJ found that Lopez had

violated 9 NYCRR 8003.2 (h). 

During the dispositional phase of the parole revocation

hearings, Lopez's counsel offered the testimony of a social

worker who opined that "the best thing" for Lopez would be for

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him to be restored to parole and returned to OMH's custody.1 The

ALJ, however, recommended parole revocation, determining that

reincarceration was appropriate, with a 24-month time assessment. 

Lopez was "a violent offender," the ALJ wrote. "He assaulted

another patient at the hospital. Given his past criminal history

this action . . . is especially serious. He is not currently

amenable to parole supervision. Alternatives to incarceration

were considered but are not appropriate."

The Division of Parole adopted the ALJ's recommendation

on December 12, 2008, and Lopez was incarcerated.2 His

administrative appeal was denied.3

II.

In August 2010, while incarcerated, Lopez, represented

by counsel, commenced this CPLR article 78 proceeding, seeking to

1

 At the time, an OMH detainer, requiring that Lopez be

returned to OMH's custody if released from the custody of DOCCS,

was in effect. Counsel and the social worker interpreted this to

mean that Lopez would return to OMH's custody if restored to

parole and would only remain in the custody of DOCCS if parole

were revoked. However, a parolee remains in the custody of the

Division of Parole of DOCCS in both scenarios (see 9 NYCRR 8003.1

[a]).

2 The OMH detainer, which provided that it "expires should

the named party become incarcerated," duly expired.

3 In October 2012, the Parole Board granted an application

by Lopez for discretionary release. Lopez was discharged from

prison and restored to parole supervision on January 9, 2013. We

agree with the Appellate Division, however, that "this appeal

comes within the exception to the mootness doctrine for orders

raising novel and substantial issues that are likely to recur but

to evade appellate review" (104 AD3d 105, 108 [1st Dept 2012]).

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annul the determination of the Division of Parole, vacate the

parole revocation, and obtain release from custody. Counsel

contended that due process prohibits the Division of Parole from

proceeding with a revocation hearing against a person who has

been deemed mentally unfit to proceed to trial. The Division of

Parole moved to deny Lopez's petition. 

Supreme Court granted the motion and dismissed the

proceeding, holding that an assertion of incompetency does not

bar parole revocation proceedings. The court cited People ex

rel. Newcomb v Metz (64 AD2d 219 [3d Dept 1978]) and Matter of

Newcomb v New York State Bd. of Parole (88 AD2d 1098 [3d Dept

1982], lv denied 57 NY2d 605 [1982], cert denied 459 US 1176

[1983]). Those decisions held that the Parole Board must

consider a parolee's lack of mental competency as a mitigating

factor when considering alleged parole violations, but "a

determination of this question is not a condition precedent to

the parole revocation proceeding" (Metz, 64 AD2d at 223; see New

York State Bd. of Parole, 88 AD2d at 1098-1099; accord People ex

rel. Porter v Smith, 71 AD2d 1056 [4th Dept 1979]).

The Appellate Division reversed, granted Lopez's

petition, and reinstated Lopez to parole, holding that "the basic

requirements of due process applicable to a parole revocation

proceeding 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

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assist his counsel in doing so" (104 AD3d 105, 108 [1st Dept

2012] [citation omitted]). In dicta, the Appellate Division took

the position, over a single-Justice concurrence, that "the

statute authorizing the Parole Board to determine whether a

parolee has violated parole necessarily confers upon the Board

authority to determine whether the parolee possesses the mental

competence required for such a determination to be rendered in

accordance with due process" (104 AD3d at 110-111).

The Division of Parole appeals as of right under CPLR

5601 (b) (1). We now affirm.

III.

In People ex rel. Menechino v Warden, Green Haven State

Prison (27 NY2d 376 [1971]), this Court held that the demands of

due process require that a parolee be represented by a lawyer and

entitled to introduce testimony, in a parole revocation hearing,

if he or she so chooses. We observed that "a proceeding to

revoke parole involves the right of an individual to continue at

liberty or to be imprisoned. It involves a deprivation of

liberty . . . and falls within the due process provision of

section 6 of article I of our State Constitution" (id. at 382

[internal quotation marks and ellipses omitted]). We concluded

that this constitutional guarantee demands representation by

counsel "if the search for truth is not to be sacrificed to

administrative speed and convenience" (id. at 383).

Here, once again, the constitutional question

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implicates the balance between the government's interest in

efficient administration of parole and the parolee's right to

defend himself or herself (see id. at 382-384; see generally

Mathews v Eldridge, 424 US 319, 335 [1976]). In this calculus,

truth cannot give way to efficiency. In the present case, as in

most others, it is only the parolee himself who is in a position

to know the facts and assist in his or her defense. When the

parolee, by reason of mental incapacity, is unable to understand,

recall, or express such vital information, it is inconsistent

with due process for a parole board to proceed with a revocation

hearing.

It is, of course, well established – as a matter of

common law and also of due process – that "a person whose mental

condition is such that he lacks the capacity to understand the

nature and object of the proceedings against him, to consult with

counsel, and to assist in preparing his defense may not be

subjected to a trial" (Drope v Missouri, 420 US 162, 171 [1975]). 

The State contends that parole revocation proceedings do not

raise the same concerns because parole revocation is not part of

a criminal prosecution. 

It is true that parole revocation deprives an

individual only of "a restricted form of liberty" and thus

implicates "some form of due process [but] not the full panoply

of rights due a defendant in a criminal proceeding" (People ex

rel. Matthews v New York State Div. of Parole, 58 NY2d 196, 204

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[1983], citing Morrissey v Brewer, 408 US 471, 480-484 [1972]).

Just as due process requires us to safeguard the liberty of

parolees, we must also recognize the state's strong interest in

effectively managing parolees without unduly burdensome

procedural restraints (see Morrissey, 408 US at 483). However,

in balancing these competing interests, we conclude that several

of the reasons underlying the bar against prosecuting a mentally

incompetent defendant apply also to parole revocation hearings. 

Clearly salient are constitutional concerns about the fundamental

fairness of a proceeding in which a defendant who is unable to

make decisions about his defense may be returned to prison. But

foremost is the concern already mentioned, about the accuracy of

the proceedings. An incompetent parolee is not in a position to

exercise rights, such as the right to testify and the opportunity

to confront adverse witnesses (see 9 NYCRR 8005.18 [b] [2], [4]),

that are directly related to ensuring the accuracy of factfinding. It is true, as the State emphasizes, that the parolee

is guaranteed a right to representation by counsel at the

revocation hearing. But representation is not enough. A parolee

must be able to provide the factual underpinnings of the

presentation.

We conclude, therefore, that holding a parole

revocation hearing after a court has deemed the parolee to be

mentally incompetent violates the due process provision in our

State Constitution. We agree with the Appellate Division that

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the Newcomb decisions, relied upon by Supreme Court, should no

longer be followed.

However, the State raises certain practical objections

to an affirmance, which give us pause. In particular, the State

points out that the Division of Parole is not authorized to

commit a mentally incompetent parolee to the custody of OMH under

CPL article 730, which governs the process whereby a person who

has been charged with a criminal offense and found to be

incompetent to stand trial, is committed (see CPL § 730.30; see

also CPL § 1.20 [16]). A parolee, by contrast, has already been

convicted of a criminal offense and sentenced. Nor does the

Division of Parole have its own authority to seek commitment

under Mental Hygiene Law article 9. In any case, a person who is

incapacitated under CPL 730.40 (1) is not necessarily mentally

ill within the meaning of article 9. 

The result is that, as matters stand, a parolee who has

been found mentally incompetent, and therefore unfit to proceed

to a parole revocation hearing under our holding today, will

likely be released into the community.4 As the State points out

in its brief, 

"the Parole Board's only option would

seemingly be to restore the mentally

incompetent person to parole, even if in its

4 It seems probable, however, that parole boards, mindful of

our holding, will become reluctant to grant parole to otherwise

eligible prisoners with any history of mental illness or mental

disability in the first place.

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judgment the person could not successfully

comply with his parole conditions and would

pose a risk to public safety. While the

Parole Board could theoretically impose

additional special parole conditions to

address the parolee's mental condition, such

conditions would serve no meaningful purpose

if the Board would likely be unable to revoke

parole for any subsequent violation."

In circumstances such as those presented here, the

parolee falls between the cracks. He will remain in the custody

of DOCCS, and therefore will not receive mental health treatment

in a psychiatric facility as he would if in the custody of OMH. 

And, because he is no longer incarcerated, he will obviously not

receive treatment in a controlled correctional setting either. 

Lopez himself may be receiving outpatient mental health

treatment, as a special condition of parole (see 9 NYCRR 8003.3

["A special condition may be imposed upon a releasee either prior

or subsequent to release. The releasee shall be provided with a

written copy of each special condition imposed. . ."). But the

State is justified in pointing out the concern that other

defendants who violate parole must be released, under the law,

when they are deemed mentally incompetent, with no guarantee that

they will receive treatment. It is up to the Legislature to

address this disparity whereby a mentally incompetent defendant

who has been charged with, but not convicted of, a crime may be

committed to a psychiatric facility in the custody of OMH, but a

parole violator who developed mental incapacity after conviction

and release may not be confined at all.

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A related question is whether the Division of Parole

may make determinations regarding mental competency, when it

reasonably appears that the parolee may be incompetent. Federal

regulations assume that a federal hearing examiner may determine

whether or not a parolee is mentally incompetent (see 28 CFR 2.8

[c]; [e] [2]).5 These rulings occur in the context of a

regulatory framework in which the examiner still conducts the

revocation hearing, irrespective of the mental competence

determination, but "shall take into full account the parolee's

mental condition in determining the facts and recommending a

decision as to revocation and reparole" (28 CFR 2.8 [e] [2]). 

The process whereby the Division of Parole decides whether or not

a parolee is mentally incompetent necessarily carries more

significance when it may mean that he or she is released into the

community despite a history of crime combined with mental

incapacity. 

The Appellate Division suggested, in dicta, that the

Parole Board can assess a parolee's competency in order to

determine whether it has jurisdiction to proceed with the parole

revocation proceeding. Amicus Mental Hygiene Legal Service

proposes that the Parole Board apply an analog to the procedures

set forth under CPL article 730 for an incapacitated defendant

charged with a felony to an incapacitated parolee charged with a

5 For reasons not pertinent to this case, there are still

offenders on federal parole, notwithstanding the abolition of

parole in the federal system.

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parole violation amounting to felonious conduct, and that the

Parole Board apply something similar to the procedures set forth

under CPL article 730 for an incapacitated defendant charged with

a misdemeanor to an incapacitated parolee charged with a parole

violation equivalent to a misdemeanor. In the present case, this

issue was not directly raised because the determination that

Lopez was incapacitated had already been made in the recent

criminal action arising out of the same conduct. Because the

issue is not presented in this case, we express no view on the

Parole Board's authority to make competency determinations in

cases unlike this one where there has not been a recent judicial

determination of incompetency. We note only that it seems clear

that there are statutory concerns that the Legislature should

address.

Accordingly, the order of the Appellate Division should

be affirmed, without costs.

* * * * * * * * * * * * * * * * *

Order affirmed, without costs. Opinion by Judge Pigott. Chief

Judge Lippman and Judges Read, Rivera, Abdus-Salaam, Stein and

Fahey concur.

Decided April 7, 2015

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