Groundbreaking Ruling In Parole Revocation Case Recognizes That Parolees Have The Fundamental Right To Have The Capacity To Assist In Their Own Defense
WEDNESDAY, JANUARY 02, 2013

Elon Harpaz, a Staff Attorney in The Legal Aid Society's Criminal Appeals Bureau and Parole Revocation Defense Unit, scored a major victory for the fundamental rights of parolees when the Appellate Division, First Department held for the first time that a parolee who is found mentally incompetent to stand trial on a new charge is also unfit to proceed with a parole revocation hearing.

Harpaz told the New York Law Journal that the ruling is legally significant because it marks the first time a New York appellate court "recognized that just as a criminal defendant has a fundamental right to have the capacity to assist in his or her defense before the state may deprive him or her of liberty, the same protections apply to parolees." Courts in numerous other states, including Indiana, Ohio, Michigan, Florida, Tennessee, Wisconsin and Illinois have come to the same conclusion regarding the due process rights of mentally unfit parolees and probationers, according to the Lopez decision.




The New York Law Journal
Parole Revocation Barred for Defendant Unfit to Stand Trial
By John Caher
01-02-2013

Breaking with their colleagues upstate and referencing courts in several other states, the Appellate Division, First Department, has held for the first time that a parolee found mentally incompetent to stand trial on new charges is also unfit to proceed with a parole revocation hearing.

In Matter of Lopez v. Evans, 2012 NY Slip Op 09188, the justices agreed that a defendant who cannot defend himself at a criminal proceeding is equally unfit to defend himself at a parole revocation hearing. But in a decision with a lengthy concurrence, they differed on whether a parole board has any authority to determine the competency of an alleged parole violator.

Lopez arose from the Bronx and centers on Edwin Lopez, who was sentenced to a 15-year-to-life term in the 1970s for second-degree murder before he was released in 1994 to lifetime parole. In 2008, when he was a resident of a mental health facility, Lopez allegedly assaulted another patient and was charged with third-degree assault, a misdemeanor, and two lesser offenses. The charges were dismissed after Lopez was found mentally incompetent.

Based on the same conduct that led to the charges, Lopez's parole was revoked by an administrative panel that found "mental illness is not an excuse for a parole violation."

Bronx Supreme Court Justice Mark Friedlander (See Profile) affirmed, finding himself bound by Third and Fourth department holdings (see People ex rel. Newcomb v. Metz, 64 AD2d 219 [Third Department, 1978], People ex rel. Porter v. Smith, 71 AD2d 1056 [Fourth Department 1979], and Newcomb v. New York State Board of Parole, 88 AD2d 1098 [Third Department, 1982]). The First Department had not previously addressed the issue.

"We agree with petitioner 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 assist his counsel in doing so," the court said in a main opinion by Justice David Friedman (See Profile). "We respectfully decline to follow the contrary holdings on this issue of certain older decisions of other departments of the Appellate Division."

The court rejected the parole board's assertion that the lower standard of proof necessary for a parole revocation—preponderance of the evidence—distinguishes it from a criminal trial and diminishes the subject's due process interests.

Courts in numerous other states, including Indiana, Ohio, Michigan, Florida, Tennessee, Wisconsin and Illinois have come to the same conclusion regarding the due process rights of mentally unfit parolees and probationers, according to the Lopez decision.

While all five judges on the panel agreed that Lopez could not be subjected to a revocation hearing if he was unable to understand the proceeding, they debated whether the parole board has any authority to evaluate a parolee's competency—a debate that four of the justices thought unnecessary.

In a lengthy concurrence, Justice James Catterson (See Profile) urged the court to address two questions that were not before it—whether the parole board has the authority to evaluate a parolee's competence and, if not, what it should do when a parolee charged with violating the conditions of his or her release appears to be incompetent. Those issues were not present in Lopez because he was found incompetent at a criminal proceeding and returned civilly to a mental institution.

Catterson said the lack of any "statutory provision for modifying parole in any fashion unless the parolee is found guilty of a violation" cries out for legislative action.

"The majority agrees that the Legislature must act, but would find that, in the interim, the Parole Board has the authority to 'receiv[e] evidence on the parolee's mental condition and rul[e] on his or her competence at the outset of a revocation hearing,'" Catterson wrote. "Here I must respectfully part company with the majority since in my opinion, the [Third Department's] holdings…are still good law as to the lack of the Parole Board's statutory authority to determine mental competency."

In response, Friedman disputed Catterson's assertion that the majority agreed that the legislature "must" act and said that until the legislature specifically outlines procedures to govern competency issues in parole revocation matters, there is nothing barring the board from considering competency, subject to judicial review.

"The concurrence professes to believe that the absence of the statute expressly authorizing the board to determine the competence of an alleged parole violator means that, until the statutory scheme is amended, a revocation proceeding must come to a halt whenever it reasonably appears that the alleged violator may be incompetent," Friedman wrote. "We disagree." Justices Angela Mazzarelli (See Profile), Dianne Renwick (See Profile) and Helen Freedman (See Profile) were also on the panel.

Lopez was represented by Elon Harpaz of the Legal Aid Society.

Harpaz said the ruling is legally significant because it marks the first time a New York appellate court "recognized that just as a criminal defendant has a fundamental right to have the capacity to assist in his or her defense before the state may deprive him or her of liberty, the same protections apply to parolees. It amazes me that no appeals court in New York has said this before."

The parole board was represented by assistant attorneys general Simon Heller and Alison Nathan, who now is a Southern District judge. The attorney general's office declined comment. Peter Cutler, a spokesman for the parole board, said attorneys will "study the decision and determine what the next steps should be."

The appeal was argued in December 2011.