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BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, determined defendant did not receive effective assistance of counsel  because counsel, after defendant pled not responsible by reason of mental disease or defect, conceded defendant suffered from a dangerous mental disorder and thereby waived the required “track” hearing pursuant to Criminal Procedure Law (CPL) 330.20 (a “critical stage” of the proceedings):

… [A]fter a court accepts a not responsible plea, it must issue an examination order for the defendant to be examined by two qualified psychiatric examiners … , who must submit to the court a report of their findings and evaluation regarding defendant’s mental condition … .

Critical to this procedure is the requirement that the court conduct an initial hearing within 10 days after receipt of the psychiatric examination reports, in order to classify the defendant as “track one,” “track two,” or “track three” based on the defendant’s mental condition … . …

“The track designation places more dangerous acquittees under the purview of the Criminal Procedure Law, while less dangerous, though still mentally ill, acquittees are committed to the custody of the Commissioner of Mental Health and come under the supervision of the Mental Hygiene Law” … . …

At the initial hearing, the People bear the burden of proving “to the satisfaction of the court,” i.e., by a fair preponderance of the credible evidence, that the defendant has a dangerous mental disorder or is mentally ill … .

The initial hearing under CPL 330.20(6) is “a critical stage” of proceedings at which the defendant is entitled to the effective assistance of counsel … . …

… [C]ounsel rendered ineffective assistance when he conceded at the plea proceeding that defendant was a danger to himself and society, and waived defendant’s right to an initial hearing before reviewing the psychiatric examination reports which had not yet been prepared for the court. Further, at the proceeding that followed the issuance of the reports, counsel simply relied on the psychiatrists’ reports and deferred to the court’s discretion. He did not call any witnesses or seek to cross-examine the psychiatrists who prepared the reports. Nor did counsel consult an expert on defendant’s behalf who might have offered a contrasting opinion. People v Darryl T., 2018 NY Slip Op 02280, First Dept 3-29-18

CRIMINAL LAW (DANGEROUS MENTAL CONDITION, INEFFECTIVE ASSISTANCE, BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DANGEROUS MENTAL CONDITION, BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OR MENTAL DISEASE OF DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DANGEROUS MENTAL CONDITION, INEFFECTIVE ASSISTANCE, BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OR MENTAL DISEASE OF DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT))/DANGEROUS MENTAL CONDITION (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT))/MENTAL HYGIENE LAW (CRIMINAL LAW, DANGEROUS MENTAL CONDITION, INEFFECTIVE ASSISTANCE, BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION DEFENSE COUNSEL EFFECTIVELY WAIVED AN INITIAL ‘TRACK’ HEARING PURSUANT TO CPL 330.20, A ‘CRITICAL STAGE’ OF THE PROCEEDINGS AFTER A NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT PLEA, DEFENSE COUNSEL WAS INEFFECTIVE, CPL 330.20 HEARING ORDERED (FIRST DEPT))

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