PEOPLE v. FOX (1997)

The defendant, through his attorney, moves this Court to dismiss the indictment against him herein or in the alternative, for an Order requiring the People to present its case to a new grand jury in the event that the defendant is found competent at a later time.

The defendant predicates his motion upon his counsel's arguments that CPL § 730.40(3), which allows the People to present charges to a grand jury against a defendant whose mental competency is being examined pursuant to court order or against a defendant who has been adjudicated mentally incompetent, without affording such defendant an opportunity to testify before such grand jury, is constitutionally infirm under both the Federal and State Constitutions on equal protection and due process grounds.

The Law

CPL § 190.50(5) provides, in relevant part:

Although not called as a witness by the People or at the insistance of the grand jury, a person has a right to be a witness in a grand jury proceeding under circumstances prescribed in this subdivision:

(a) When a criminal charge against a person ․ has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf if, prior to the filing of the indictment ․, he serves upon the district attorney of the county a written notice making such request and stating an address to which communications may be sent ․ In such case, the district attorney must notify the defendant or his attorney of the prospective or pending grand jury proceeding and accord the defendant a reasonable time to exercise his right to appear as a witness therein.

CPL § 730.40(3) states:

When a local criminal court has issued an order of examination or a temporary order of examination, and when the charge or charges contained in the accusatory instrument are subsequently presented to a grand jury, such grand jury need not hear the defendant pursuant to section 190.50 unless, upon application by defendant to the superior court that empaneled such grand jury, the superior court determines that the defendant is not an incapacitated person.

The Fourteenth Amendment to the United States Constitution provides, in relevant part, that:

Section 1. ․ nor shall any State deprive any person of life, liberty, or property, without due process of law;  nor deny to any person within its jurisdiction the equal protection of the laws.

Article 1, Section 11, of the New York State Constitution, provides:

No person shall be denied the equal protection of the laws of this state or any subdivision thereof.   No person shall, because of race, color, creed or religion, be subjected to any discrimination in his civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.

Constitutional due process is divided into two classifications:  substantive due process and procedural due process.   Substantive due process deals with the denial of “Fundamental Rights.”   Procedural due process deals with the denial of statutorily created entitlements and interests.

The Facts Herein

The defendant was arrested on September 5, 1996 at about 4:29 a.m. and charged under docket number 27431/96 with Burglary in the Second Degree in violation of P.L. Section 140.25.   On September 5, 1996, the defendant was arraigned before the Honorable Anthony Parga and bail was fixed at $10,000.00 bond over $10,000.00 cash.

On September 5, 1996, the Legal Aid Society, as attorney for the defendant in the above-captioned matter, sent notice pursuant to CPL § 190.50(5)(a) to the District Attorney's office that the defendant wished to testify in his own behalf at any grand jury proceeding.

On October 17, 1996, the Honorable George Peck ordered an examination pursuant to CPL § 730.30 to determine if the defendant was competent to stand trial.   On November 22, 1996, the Honorable Thomas Dwyer found the defendant incompetent to stand trial.

On January 21, 1997, the defendant appeared before this Court.   At that time, this Court ordered another examination pursuant to CPL § 730.30 to determine the defendant's competence to stand trial.

On February 3, 1997, the People notified the Legal Aid Society by mail that the defendant's case would be presented to the Nassau County Grand Jury on February 19, 1997.

On February 19, 1997, the defendant had the case brought before the Honorable Donald E. Belfi and asked the court to order the People to hold presentation of the matter to the Grand Jury until February 27, 1997, so that the defendant's competency status could be determined in order for counsel to make an intelligent decision as to whether the defendant should testify.   Judge Belfi ordered the People to hold a vote on the matter until February 24, 1997, at which time the court ordered that the results of the 730.30 examination be expedited.   Judge Belfi adjourned the matter until February 24, 1997 for a decision as to the defendant's competency.

On February 24, 1997, this Court found that the defendant was incompetent to stand trial and, thus, an incapacitated person under the law.   The defendant was subsequently denied his right to testify before the grand jury in accordance with CPL § 190.50(5)(a) pursuant to CPL § 730.40(3).   On February 26, 1997, the grand jury indicted the defendant on one count of Burglary in the Second Degree, P.L. § 140.25(2) under Indictment # 97843.

On March 10, 1997, the defendant was arraigned before this Court under Indictment # 97843.   This Court continued the defendant's bail status and once again found the defendant incompetent to stand trial at that time.

Conclusions of Law

Equal Protection analysis must begin by determining the standard of review to be applied in a particular case.   Equal Protection case law in New York dealing with the mentally ill is very limited.   New York Courts essentially have followed federal law on this subject.  Golden v. Clark, 76 N.Y.2d 618, 563 N.Y.S.2d 1, 564 N.E.2d 611.

Federal and New York courts have followed the general rule that legislation challenged on Equal Protection grounds will be upheld if the distinction created by the legislation is related rationally to a legitimate government objective.   This is known as the “Rational Relation” test.   This rule, however, has not been followed where the legislation affects a “suspect class” or interferes in the exercise of a “Fundamental Right.”   See, City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313;   Golden v. Clark, 76 N.Y.2d 618, 563 N.Y.S.2d 1, 564 N.E.2d 611;  Board of Education, Levittown U. Sch. v. Nyquist, 83 A.D.2d 217, 443 N.Y.S.2d 843.

Cases involving “suspect classes” or a “Fundamental Right” have been analyzed by using the “strict scrutiny” standard.   Those involving what are termed “quasi-suspect classes” have applied the “intermediate scrutiny” test.

The United States Supreme Court has defined a “suspect class” as one “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection․” San Antonio School District v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16.

The United States Supreme Court has made it clear that the label of “suspect class” is not one that should be lightly imposed simply because a class has faced some discrimination and disadvantage.  Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566-67, 49 L.Ed.2d 520.   A “suspect class,” according to the Supreme Court, is one that has been continuously subjected to unique disabilities on the “basis of stereotyped characteristics not truly indicative of their abilities.”  Murgia, supra at 313, 96 S.Ct. at 2567.   Such a label has been applied to classes such as race, alienage and national origin, but not to the mentally incompetent.   See Cleburne, supra at 440, 105 S.Ct. at 3254-55.

 Although the mentally ill have been the victims of stereotypes, the disabilities imposed on them often have reflected that many of the mentally ill do have reduced ability for personal relations, for economic activity, and for political choice.   This is not to say that the legal disabilities have precisely fit the actual incapacities of the mentally ill individuals whom the law has burdened, but it is important that the legal disabilities have been related, even if imperfectly, to real inabilities from which many of the mentally ill suffer.

While it is true that the mentally incompetent may be considered a minority group, such a classification in and of itself is insufficient to warrant classifying them a “suspect class.”

Further, the federal courts consistently have refused to designate the mentally incompetent a “suspect class.”  Cleburne, supra;  Fetterusso v. State of N.Y., 898 F.2d 322 (2d Circuit);  Cospito v. Heckler, 742 F.2d 72 (3d Cir.);  J.W. v. City of Tacoma, 720 F.2d 1126 (9th Cir.);   Doe v. Colautti, 592 F.2d 704 (3d Cir.);  Martin v. Voinovich, 840 F.Supp. 1175 (Dist.Ct., S.Dist.Ohio);  Galioto v. Dept. of Treasury, 602 F.Supp. 682 (Dist.Ct.D.New Jersey).

The mentally incompetent do not have the indicia that has been required by courts for finding a class “suspect.”   They are not saddled with disability to the point of being powerless or as to command extraordinary protection from the majority nor have they been subjected to a history of purposeful unequal treatment.

Because the mentally incompetent are not a “suspect class,” the “strict scrutiny” standard cannot be applied unless the legislation infringes upon a “Fundamental Right.”

 “Fundamental Rights” are those explicitly or implicitly guaranteed by the Constitution.   See Rodriguez, supra.   Where a right is not expressly granted by the Constitution, the U.S. Supreme Court has been hesitant to find such a right implied by the Constitution.   Such hesitancy belies the court's reluctance to rewrite the Constitution and act as a super-legislature.   This Court likewise lacks the propensity to legislate from the bench.

 The right of one to testify before a grand jury is not expressly granted by the Constitution.   While such a right is certainly an important one, it is not implied by any of the provisions of the Constitution.   Nor does such a right resemble those rights pronounced by the Supreme Court as being implicit in the language of the Constitution.   Those rights found to be implied by the Constitution go to the very manner in which one chooses to live.   See, e.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (right to privacy);  Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (right to vote);  Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (right to interstate travel).

The fact that the right to testify before a grand jury is an important one does not mean that such a right is a “Fundamental Right.”   The Rodriguez court recognized that education was possibly the most significant function of government and essential to one's status in life, yet held that even education was not a “Fundamental Right.”  Rodriguez, supra at 31, 93 S.Ct. at 1295-96.

Just about every state law affects important rights, however, the importance of the right affected is not determinative of whether the right is a “Fundamental” one.

The right to testify before a grand jury, while important, is not expressly conferred in the Constitution nor is it among those rights designated as “Fundamental” by the Supreme Court.   Accordingly, this Court does not find it to be a “Fundamental Right.”

Because the mentally ill are not a “suspect class” and because the right to testify is not a “Fundamental Right”, a standard of “strict scrutiny” is not the appropriate standard of review for this case.

 Some groups have been classified by the federal courts as “quasi-suspect,” and courts have applied a standard of intermediate scrutiny in evaluating Equal Protection claims involving such groups.

Such groups include gender (Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090) and illegitimacy (Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651).   These groups have not faced a history of purposeful discrimination to an extent warranting extraordinary protection, yet they have faced discrimination because of a characteristic beyond their control which has no relationship to their ability to contribute to society.   See Cleburne, supra at 441, 105 S.Ct. at 3255;  Mathews, supra at 505, 96 S.Ct. at 2762.

The class of people with mental disabilities, however, unlike classes such as gender and illegitimacy, possess a characteristic that is in fact related to their ability, or inability as the case may be, to perform and contribute to society.   Those who are mentally incompetent are not fully equipped to perform and comprehend to an extent that allows them to contribute to society as others do.   Therefore, while that does not change the fact that they have faced some discrimination, that discrimination is not as arbitrary and purposeful as that which groups that have been accorded “suspect” or “quasi-suspect” status by the courts have faced.

Further, while it is true that some courts have applied “quasi-suspect” status to mental incompetents (see, e.g., Tacoma, supra;  Voinovich, supra;  Galioto, supra ), a number of courts have refused to attach such status to mental incompetents, including New York's Second Circuit.   Fetterusso, supra;  Heckler, supra;  Doe v. Colautti, supra.

In addition, the United States Supreme Court, in Cleburne, supra, held that mental retardation was not a “quasi-suspect” classification requiring strict scrutiny review.   In using a rational basis standard of review, the court implied that such a standard of review also would apply to the mentally ill.   The court expressed concern that if the mentally retarded were given a heightened standard of review, then such status would have to be applied to every group with a disability.   The court stated:  “One need only mention in this respect the aging, the disabled, the mentally ill and the infirm.   We are reluctant to set out on that course and we decline to do so.”  Cleburne, supra at 445-446, 105 S.Ct. at 3257 [emphasis added].   The court therefore implied that mentally ill individuals should not be treated with a heightened standard of review.

This Court finds the reasoning of the Second Circuit in Fetterusso, supra, and the U.S. Supreme Court in Cleburne, supra, the most persuasive.   Accordingly, the mentally incompetent will not be extended “quasi-suspect” status by this Court.   Therefore, in the matter now before this Court, the “rational relation” test will be applied.

 The rational basis “review in Equal Protection analysis is not a license for courts to judge the wisdom, fairness or logic of legislative choices.”  Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211.   It does not authorize the judiciary to sit as a super legislature to judge the wisdom of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.  New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511.   Further, legislation which neither involves a fundamental right nor proceeds along suspect lines is accorded a strong presumption of validity.  Murgia, supra.   Such legislation cannot run afoul of the Equal Protection clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.  Nordlinger v. Hahn, 505 U.S. 1, 112 S.Ct. 2326, 120 L.Ed.2d 1.   Such legislation must be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for its promulgation.  Nordlinger, supra.

 The People have proffered more than adequate justifications for the legislation in question, i.e., the reduction of unnecessary delay to the system, the indefinite delay which might be caused should the People have to wait for a defendant to be found competent before indictment, and the possibility of the loss of material witnesses or their memory lapses which might be occasioned by such delay.

Accordingly, this Court finds that CPL § 730.40(3) is not violative of the Equal Protection clauses of either the State or Federal Constitutions.

Defendant further challenges CPL § 730.40(3) on the grounds that it violates the Due Process clauses of the Federal and State Constitutions.

 There are two kinds of Due Process recognized by Federal and State Courts.   First, there is substantive due process, which only deals with “Fundamental Rights.”  Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91.   For reasons stated earlier, the right to testify before a grand jury is not fundamental.   Accordingly, there can lie no violation under substantive due process.

 The second type of due process is procedural due process.   This is where a law creates an entitlement and a protected interest in something and the government seeks to interfere with that interest without due process of law.  Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100.

 In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, the Supreme Court set out the following factors to evaluate whether a law interfering with a protected interest violates due process:

(1) the private interest affected;

(2) the risk of erroneous deprivation;  and

(3) the government interest.

Applying these factors to the statute at hand, it is clear that CPL § 730.40(3) does not violate due process.

A person's right to testify on his own behalf before a grand jury was an interest created by statute and, although not a fundamental right, it is clearly an important right.   The risk of erroneous deprivation, however, is low and there are alternative safeguards.   When an original temporary order of examination is issued by a judge, the defendant is immediately at that point sent for psychiatric examination.   If the defendant is found fit to proceed, he will be permitted to testify once the temporary order of examination is vacated.

There is also a procedural safeguard to prevent a situation in which a temporary order of examination is ordered and the case is presented to a grand jury before the issue of competency is resolved.   The statute specifically provides that under those circumstances, the defendant may make application to the court that impaneled said grand jury challenging his incompetency.   If found competent by said court, the defendant will then be afforded the opportunity to testify before such grand jury.   This procedural safeguard, allowing defendant to make an application to the court before the grand jury presentation is concluded, protects individuals from improperly being denied the right to testify because of an erroneous assumption that defendant is incompetent.

 In addition, the courts have wide discretion in dismissing an indictment and ordering its representment where the prosecution of such indictment would result in an injustice.  CPL § 210.40(1);  People v. Calvert, 167 Misc.2d 823, 637 N.Y.S.2d 639;  People v. Searles, 79 Misc.2d 850, 361 N.Y.S.2d 568.

Finally, the governmental interests that the statute serves, set out more specifically above, certainly are important and legitimate.   Although one's right to testify before a grand jury is an important one, the governmental interest involved and the procedural safeguards contained in the statute adequately afford procedural due process.

This Court also finds defendant's request for alternative relief premature.   Defendant's request for dismissal and representment is more properly made when and if he is found competent.

Accordingly, defendant's motion is denied in all respects.

FRANK A. GULOTTA, Jr., Judge.