The People, etc., ex rel. Sara Molinaro, on behalf of Wei Li, appellant, v. Warden, Rikers Island, etc., respondent.

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Supreme Court, Appellate Division, Second Department, New York.

The People, etc., ex rel. Sara Molinaro, on behalf of Wei Li, appellant, v. Warden, Rikers Island, etc., respondent.

2021–02956 (Index No. 142/21)

Decided: June 16, 2021

REINALDO E. RIVERA, J.P. SYLVIA O. HINDS–RADIX FRANCESCA E. CONNOLLY PAUL WOOTEN, JJ. Brooklyn Defender Services, Brooklyn, N.Y. (Sara Molinaro pro se of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Julian Joiris, David C. Kelly, Sara Dayan, and Charles Harary of counsel), for respondent.

Argued—June 10, 2021

DECISION & ORDER

In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Kings County (Jane C. Tully, J.), dated April 15, 2021.  The judgment denied the petition and, in effect, dismissed the proceeding.

ORDERED that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, the writ is sustained, and, upon receipt of a copy of this decision and order, the Warden of the facility at which Wei Li is incarcerated, or the Warden's agent, is directed to immediately release Wei Li.

By misdemeanor complaint dated April 5, 2021, Wei Li was accused of committing various offenses.  On April 9, 2021, Wei Li appeared virtually for his arraignment in the Criminal Court of the City of New York, Kings County.  Based on Wei Li's conduct at arraignment and related considerations, the criminal court ordered a CPL article 730 competency examination and remanded Wei Li to Rikers Island pending the examination.

Subsequently, on or about April 13, 2021, the petitioner commenced this proceeding on behalf of Wei Li for a writ of habeas corpus challenging his detention at Rikers Island.  Specifically, the petitioner argued, inter alia, that the criminal court lacked the authority under the relevant provisions of CPL articles 510 and 730 to remand Wei Li, who otherwise was entitled to release, pending the CPL article 730 examination.

In a judgment dated April 15, 2021, the Supreme Court denied the petition and, in effect, dismissed the proceeding.  The petitioner appeals.

Pursuant to CPL 510.10(3):  “[i]n cases other than as described in subdivision four of this section the court shall release the principal pending trial on the principal's own recognizance, unless the court finds on the record or in writing that release on the principal's own recognizance will not reasonably assure the principal's return to court.  In such instances, the court shall release the principal under non-monetary conditions, selecting the least restrictive alternative and conditions that will reasonably assure the principal's return to court” (emphasis added;  see CPL 530.20[1][a] [same];  see also CPL 170.10[7] ).  CPL 510.10(4) sets forth the “qualifying offenses” for which generally “the court ․ may in its discretion release the principal pending trial on the principal's own recognizance or under non-monetary conditions, fix bail, or, where the defendant is charged with a qualifying offense which is a felony, ․ commit the principal to the custody of the sheriff ” (emphasis added;  see CPL 530.20[1][b] [same] ).

Here, it is undisputed that Wei Li was not charged with any qualifying offenses under CPL 510.10(4) and 530.20(1)(b).  Thus, pursuant to CPL 510.10(3) and CPL 530.20(1)(a), the criminal court, upon arraigning Wei Li, was required to release him pending trial.  Nonetheless, after determining upon arraignment that Wei Li may be an incapacitated person, the criminal court remanded Wei Li to Rikers Island without bail for the purpose of a CPL article 730 examination (see CPL 730.30[1] ).

In that regard, as relevant herein, CPL 730.20(2) provides:  “When the defendant is not in custody at the time a court issues an order of examination, because he was theretofore released on bail or on his own recognizance, the court may direct that the examination be conducted on an out-patient basis, and at such time and place as the director shall designate.  If, however, the director informs the court that hospital confinement of the defendant is necessary for an effective examination, the court may direct that the defendant be confined in a hospital designated by the director until the examination is completed” (emphasis added).  CPL 730.20(3) provides:  “When the defendant is in custody at the time a court issues an order of examination, the examination must be conducted at the place where the defendant is being held in custody.  If, however, the director determines that hospital confinement of the defendant is necessary for an effective examination, the sheriff must deliver the defendant to a hospital designated by the director and hold him in custody therein, under sufficient guard, until the examination is completed” (emphasis added).

In our view, the references in CPL 730.20(2) and (3) to the defendant either having been theretofore released on bail or on his or her own recognizance, or being in custody, respectively, at the time a court issues an order of examination presuppose that a securing order has been issued upon arraignment as required by law (see CPL 170.10[7];  210.15[6];  510.10[1] ).  As such, a defendant's previously determined, or statutorily mandated, liberty status—either release or in custody—cannot be changed because a CPL article 730 examination is ordered:  if the defendant has been ordered released (or, as in the case of non-qualifying offenses, is required to be released), then the court is authorized (“may ”) only to direct that the examination be conducted on an outpatient basis or, under certain circumstances, that the defendant be confined in a hospital until the examination is completed (see CPL 730.20[2] );  if the defendant has been committed to custody, then he or she must remain in custody for the examination, even if he or she must be taken to a hospital for purposes of conducting same (see id. § 730.20[3] ).  A defendant who has been ordered released, or, as in Wei Li's case, was statutorily entitled to release (see CPL 510.10[3];  530.20[1] ), cannot be jailed because the court ordered a CPL article 730 examination.

Thus, contrary to the Supreme Court's determination, we conclude that the criminal court lacked the authority under CPL 730.20 to remand Wei Li, who otherwise was entitled to release, pending a CPL article 730 examination.  As such, currently Wei Li is being illegally detained and must be discharged forthwith.

In light of our determination, we need not reach the petitioner's remaining contention.

RIVERA, J.P., HINDS–RADIX, CONNOLLY and WOOTEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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