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July 1, 1997

TREVIS JOHNSON, Petitioner, against JOHN KEANE, Superintendent of Sing Sing Correctional Facility, Respondent.

The opinion of the court was delivered by: PRESKA


 LORETTA A. PRESKA, United States District Judge:

 Petitioner Trevis Johnson ("Johnson") petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Magistrate Judge Peck filed a Report and Recommendation recommending that Johnson's habeas corpus petition be granted. After reviewing the report de novo, pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1)(c), I adopt the Report and Recommendation in its entirety and grant the petition.


 The Evidence at Trial as to the Robberies

 On February 20, 1990, Johnson, wielding a knife, (Tr. 50-54), *fn1" approached Ramesh Dwivedi in the Times Square subway station and asked for a dollar. (Tr. 48-51, 55.) Dwivedi was too slow in producing the money, so Johnson reached into Dwivedi's wallet and removed $ 240. (Tr. 50, 55.) Six days later, on February 26, Dwivedi saw Johnson being arrested in the same station (Tr. 59, 61-63), and reported to the police that Johnson was the man who had robbed him. (Tr. 63-64.)

 Johnson's second victim was Vijaypraksh Hasare. Hasare testified that on February 26, 1990, Johnson approached him and demanded a dollar. (Tr. 24-25, 27-29.) Johnson did not succeed in obtaining any money, however, because other people came down the ramp where the two were standing. (Tr. 24-26, 30, 39-40.) Johnson attempted to escape, but was apprehended by the police, (Tr. 32-33, 42), after Hasare reported the incident. (Tr. 30-32.)

 At trial, defense counsel argued that the Hasare incident was merely an "aggressive panhandle," (Tr. 167-68), and that Dwivedi misidentified Johnson as his assailant. (Tr. 169-70.) On October 19, 1990, a New York Supreme Court jury found Johnson guilty of robbery in the first degree and attempted robbery in the first degree. (Tr. 237-38.) The trial court sentenced Johnson as a predicate offender to concurrent terms of 12 1/2 to 25 years and one and a half to three years imprisonment. (Sentencing Tr., 1/14/91, at 7-8; see also Petition PP 2-3.)

 Mental Incompetence Hearings and Motions

 In June, 1990, Johnson was examined by two psychiatrists to determine his competency to stand trial, pursuant to New York Criminal Procedure Law § 730. (Petition Ex. B: 7/11/90 Examination Reports of Dr. Melvin Weiderlight and Dr. P. Kennedy Walsh.) While both doctors agreed that Johnson appeared competent, Dr. Walsh warned that Johnson "has a chronic history of psychiatric illness which could deteriorate at any time." (Petition Ex. B: Walsh Report at 3.)

 On August 6, 1990, Johnson's counsel moved to have Johnson re-examined (Petition Ex. A: 8/6/90 Hearing Tr. at 3), despite Johnson's vehement protests that no examination was necessary. (Id.) The court did not rule on the motion, but held a conference two days later, on August 8. At that conference, Johnson's new counsel, Robin Frankel, opined that Johnson was competent to stand trial. (Petition Ex. A: 8/8/90 Hearing Tr. at 3-4.) She did note that she would like to meet with an outside expert and perhaps have her client re-examined, but then commented that such a re-examination would not be necessary for the purposes of CPL § 730. (Id. at 4.) Trial was scheduled for September 11, 1990 (Id. at 5), but the case was adjourned until October after being transferred to Justice Clifford Scott. (Petition Ex. A: 9/25/90 Hearing Tr. at 1-3.)

 Johnson's counsel came to believe that Johnson was no longer able to assist in his defense, and on October 16, 1990, requested a further CPL 730 examination. (Petition Ex. A: 10/16/90 Hearing Tr. at 84-85.) Legal Aid's mental hygiene unit, which had met with Johnson, agreed with counsel's assessment. (Id. at 84.) Counsel also pointed out that Johnson had refused to be examined by Dr. Goldstein, a psychiatrist retained by the defense. (Id.) The trial court denied the request for the CPL 730 examination, stating that Johnson had already been found competent the previous June. (Id. at 85.) The court set trial for the following day. (Id.)

 Defense counsel again requested a CPL examination on October 17, 1990, stating that Johnson "lacked the ability to cooperate with counsel" and "has been found unfit in the past" because of his tendency to "shut down" when questioned by counsel. (Petition Ex. A: 10/17/90 Hearing Tr. at 2.) The court did not allow defense counsel an opportunity to explain Johnson's history of psychiatric hospitalization, and refused to comply with counsel's request that the court question Johnson to evaluate his competency. (Id. at 3-4.) Johnson's August 6 claim that he was competent apparently was used by the court to justify the denial of defense counsel's request. (Id. at 5.) The court stated, however, that its ruling would not change, even if Johnson were to consent to an examination. (Id.) Evidently, the trial court was unaware of its power to order a re-examination once the defendant has been found competent. *fn2"

 Defense counsel informed the court on October 18, 1990, that Johnson intended to wear to trial the black striped shirt which was identified by the witnesses and police officers as belonging to the perpetrator. (Petition Ex. A: 10/18/90 Hearing Tr. at 2-3.) Johnson realized that wearing the shirt would likely result in a conviction. (Id. at 3.) Defense counsel tried to persuade the court that this demonstrated Johnson's inability to assist in his own defense; however, the court again refused to hold an examination, and brought the jury in. (Id.)

 On October 19, 1990, at the close of the People's case, defense counsel stated, outside the presence of the jury, that Johnson "cannot assist me in his defense. He is speaking irrationally about having me obtain the folder for his mental psychiatric record. He does not understand what is going on. . . . He is not responsive in any rational way." (Tr. 136-67.) The court did not respond beyond stating "All right, noted." (Tr. 137.)

 Dr. Goldstein examined Johnson on October 22, 1990. He found Johnson to be "delusional," and was prepared to testify as to his findings. (Tr. 138-39.) The report, which was not reviewed by the court, stated that Johnson was not fit to stand trial. (Petition Ex. C: 10/29/90 Report of Dr. Robert L. Goldstein, at 5.) The report noted Johnson's "longstanding history of psychiatric illness dating back to adolescence," id. at 2, and that Johnson was convinced that the complaining witnesses, who are Indian, were conspiring with Indian psychiatrists against whom Johnson allegedly has a malpractice case. (Id. at 3; see also Tr. 140.) Dr. Goldstein concluded that Johnson's


communications with his attorney reflect these paranoid delusional ideas and interfere with any rational or effective collaboration with counsel in the preparation or implementation of a defense. He is unable to consider his alternatives or options in a rational light or to make realistic decisions. His judgment and grasp of reality are severely compromised.

 (Petition Ex. C: Goldstein Report at 3-4.)

 The same day, before the jury was brought in, defense counsel moved again for a CPL 730 examination. (Tr. 138.) Once again, the court denied the motion, holding that it was "too late" and that "we all are" delusional. (Id.) The court did not accept defense counsel's argument that CPL 730 provides for an examination at any point during the proceedings. (Id.) Rather, the court stated that "we have had him submitted for 730 before, and at some point this has to end. We cannot go on ad infinitum." (Tr. 139.)

 Defense counsel again sought a psychiatric examination after the jury found Johnson guilty, and the court again denied the request. (Tr. 239.) The court did, however, state that it would recommend treatment and examination "through the Department of Corrections, if they deem it necessary." (Id.)

 On November 19, 1990, defense counsel made a written motion to set aside the verdict pursuant to CPL § 330.30, *fn3" because of the court's repeated denials of the 730 examinations. (Petition Ex. C: Notice of Motion and Frankel Affirmation.) Dr. Goldstein's report finding Johnson unfit to stand trial was submitted as part of the motion. (Id.) The motion also included the recommendation of the Probation Department's psychiatric clinic that Johnson receive "closely monitored psychiatric treatment." (Id.: Frankel Affirmation P11.) On December 19, 1990, the trial judge denied the motion, holding that Johnson "does not have the medical evidence to support defense counsel's theory." (Petition Ex. D.)

 On January 4, 1991, Johnson was sentenced to 12 1/2 to 25 years as a predicate felon. (Sentencing Tr. at 7.) Defense counsel, in an effort to have the sentence reduced, again brought to the court's attention Johnson's "obvious mental incapacity to aid and assist [counsel] in his defense." (Id. at 2.) The court still refused to consider Johnson's competency, but did recommend that Johnson receive psychiatric treatment while serving his sentence. (Id. at 8.)

 Johnson's State Court Appeal

 The First Department denied Johnson's appeal. People v. Johnson, 208 A.D.2d 456, 617 N.Y.S.2d 313 (1st Dep't 1994). The appellate court held that the trial judge properly exercised his discretion in not granting a second competency hearing, in light of the June report finding Johnson fit to stand trial. (Id.) The New York Court of Appeals denied leave to appeal. People v. Johnson, 85 N.Y.2d 863, 624 N.Y.S.2d 382, 648 N.E.2d 802 (1995).

 Johnson's Present Federal Habeas Petition

 On April 19, 1996, the Office of the Appellate Defender filed the instant habeas petition on Johnson's behalf. (See Petition.) The Petition asserts that the conviction of a legally incompetent person violates the right to due process guaranteed by the Fifth and Fourteenth Amendments to the Constitution. (Petition P 11.) Furthermore, the petition asserts, Johnson's right to due process was violated when the state court refused to hold a second competency hearing, despite the fact that a sufficient doubt was raised as to Johnson's fitness to stand trial. (Id.)



 A. The Applicable Law

 Subjecting an incompetent person to trial is a violation of that person's constitutional right to due process. Pate v. Robinson, 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836 (1966). Therefore, failure to hold a competency hearing when the evidence warrants one is unconstitutional. See Nicks v. United States, 955 F.2d 161, 167 (2d Cir. 1992). Federal courts have granted habeas corpus petitions when trial courts failed to hold competency hearings despite evidence in the record sufficient to trigger the court's obligation to examine the defendant's fitness to stand trial. See Pate, 383 U.S. at 386; Silverstein v. Henderson, 706 F.2d 361, 369 (2d Cir. 1983), cert. denied, 464 U.S. 864, 78 L. Ed. 2d 171, 104 S. Ct. 195 (1983).

 New York law defines an incompetent person as one who "as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense." N.Y. CPL § 730.30(1). The inquiry is similar under federal law: "Whether the [defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 (1960).

 New York Criminal Procedure Law § 730, which establishes the procedure for determining competency, provides that:


1. At any time after a defendant is arraigned upon an accusatory instrument other than a felony complaint and before the imposition of sentence, or at any time after a defendant is arraigned upon a felony complaint and before he is held for the action of the grand jury, the court wherein the criminal action is pending must issue an order of examination when it is of the opinion that the defendant may be an incapacitated person. *fn4"


2. When the examination reports submitted to the court show that each psychiatric examiner is of the opinion that the defendant is not an incapacitated person, the court may, on its own motion, conduct a hearing to determine the issue of capacity, and it must conduct a hearing upon motion therefor by the defendant or by the district attorney. *fn5"

 The New York Court of Appeals has maintained that it is the trial court's duty to hold a hearing, even in the absence of a request from the defendant, when the "demeanor of the defendant or other evidence raises doubts as to his competence to stand trial." Silverstein v. Henderson, 706 F.2d at 367 (citing People v. Gonzalez, 20 N.Y.2d 289, 293, 282 N.Y.S.2d 538, 229 N.E.2d 220 (1967)). A trial judge must order a hearing when evidence of incompetence creates a reasonable basis for believing that the defendant is not fit to stand trial. See 706 F.2d at 369; United States v. Nichols, 56 F.3d 403, 414 (2d Cir. 1995) ("[A] hearing is only required if the court has 'reasonable cause' to believe that the defendant has a mental defect rendering him incompetent."). *fn6"

 The refusal to hold a competency hearing when the evidence suggests that such a hearing is necessary is a violation not only of state and federal statutes, but of the Due Process Clause as well. See Nichols, 56 F.3d at 416; Nicks v. United States, 955 F.2d 161, 168 (2d Cir. 1992); Hernandez, 930 F.2d 714 at 716; United States v. Auen, 846 F.2d 872, 877 (2d Cir. 1988). Absent a reasonable doubt of competency, however, a hearing is not required. See, e.g., United States v. Kirsh, 54 F.3d 1062, 1070 (2d Cir. 1995).

 The determination of whether there is reasonable cause to believe that the defendant is not fit to stand trial rests within the discretion of the trial judge. See, e.g., Nichols, 56 F.3d at 414. When the evidence clearly warrants such an inquiry, however, the trial court "must necessarily exercise its discretion and make findings on the record concerning the defendant's competency." Auen, 846 F.2d at 877-88.

 The Supreme Court has not established firm guidelines for determining when a hearing is necessary. See Drope v. Missouri, 420 U.S. 162, 180, 43 L. Ed. 2d 103, 95 S. Ct. 896 (1975). The Court has, however, delineated several factors which should be considered by the trial court: any evidence of the defendant's irrational behavior, the defendant's demeanor at trial, medical opinions, and the opinion of defense counsel. See, e.g., id. at 177 n.13, 180. Upon review, an appellate court owes deference to the trial court's determinations, in recognition of the trial court's superior opportunity to observe "the defendant during the [pretrial and trial] proceedings." United States v. Vamos, 797 F.2d 1146, 1150 (2d Cir. 1986); see Nichols, 56 F.3d at 414; Kirsh, 54 F.3d at 1070; United States v. Oliver, 626 F.2d 254, 259 (2d Cir. 1980).

 Defense counsel, of course, may be in an even better position than the trial judge to evaluate a defendant's capacity. Therefore, courts have repeatedly emphasized the importance of defense counsel's opinion in determining when circumstances call for a hearing. The Court of Appeals explained that "since competency involves an inability to assist in the preparation of a defense or rationally to comprehend the nature of the proceedings, failure by trial counsel to indicate the presence of such difficulties provides substantial evidence of the defendant's competence." Vamos, 797 F.2d at 1150; see also Drope, 420 U.S. at 177 n.3 ("Although we do not, of course, suggest that courts must accept without question a lawyer's representation concerning the competence of his client . . . an expressed doubt in that regard by one with 'the closest contact with the defendant' . . . is unquestionably a factor which should be considered."); United States v. Day, 949 F.2d 973, 982 (8th Cir. 1991); Griffin v. Lockhart ; 935 F.2d 926, 930, 931 (8th Cir. 1991); Hernandez v. Ylst, 930 F.2d at 718; accord People v. Morgan, 87 N.Y.2d 878, 880, 638 N.Y.S.2d 942, 662 N.E.2d 260 (1995); People v. Gelikkaya, 84 N.Y.2d 456, 460, 618 N.Y.S.2d 895, 643 N.E.2d 517 (1994).

 The Supreme Court has determined that holding one competency hearing at the beginning of the proceedings may not satisfy the constitutional requirement that courts establish that the defendant is fit to stand trial. Drope, 420 U.S. at 182 ("Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial."); see also United States v. Mason, 52 F.3d 1286, 1292-93 (4th Cir. 1995) (finding that defendant's suicide attempt after first phase of defendant's trial required court to hold competency hearing not only as to defendant's competence to continue trial but also as to his competence at already concluded first part of trial); Auen, 846 F.2d at 878; United States v. Renfroe, 825 F.2d 763, 766 (3d Cir. 1987); accord People v. Colon, 128 A.D.2d 422, 512 N.Y.S.2d 809, 810 (1st Dep't 1987).

 B. Application of the Law to Johnson's Facts

 Applying the factors delineated by the Supreme Court to Johnson's case leads to the conclusion that the trial court should have ordered a second competency hearing. Defense counsel made crystal clear her opinion that Johnson was not fit to stand trial, by repeatedly requesting that the trial court order an examination. Counsel requested a CPL § 730 competency hearing on October 16, 1990, again on October 17, 1990, and for a third time on October 18, 1990, immediately prior to trial. (See pages 3-5, above.) During trial, counsel renewed the request for a fourth time at the close of the People's case on October 19, 1990, and made a fifth request on October 22, 1990; after the verdict, defense counsel made a sixth motion orally and a seventh motion (written) on November 19, 1990. (See pages 5-7, above.) Defense counsel made an eighth and final motion at sentencing on January 4, 1991. (See page 7, above.) The trial judge disregarded defense counsel's strongly held opinion, and summarily denied each request.

 Additionally, the need for a competency hearing was indicated by medical evaluations of Johnson. The June 1990 evaluation warned that "Johnson had a history of psychiatric illness which could deteriorate at any time." (Petition Ex. B: Walsh Report at 3.) By October 16, 1990, defense counsel determined that Johnson's condition had in fact deteriorated, and Legal Aid's mental hygiene unit concurred in this opinion. (Petition Ex. A: 10/16/90 Hearing Tr. at 84-85.) The court prevented defense counsel from describing Johnson's prior psychiatric hospitalization, and refused to question Johnson. (Id. at 3-4.) When defense counsel attempted to support the requests for a hearing with Dr. Goldstein's psychiatric report (which found him "delusional"), the court would not accept it, on the grounds that it was "too late" and that "we all are" delusional. (Tr. 137-40; see also Petition Ex. C.) After trial, defense counsel's written motion included Dr. Goldstein's report, and noted that the Probation Department's psychiatric clinic recommended "closely monitored psychiatric treatment for" Johnson. (Petition Ex. C: Notice of Motion & Frankel Affirmation.) The court denied the motion in a one sentence opinion. (Petition Ex. D.)

 Finally, the trial court refused to consider evidence of Johnson's irrational behavior and his demeanor at trial. Johnson insisted on wearing to trial the shirt he wore on the day of his arrest, even though he realized that doing so would be severely prejudicial to his defense. (Petition Ex. A: 10/18/90 Hearing Tr. at 2-3.) Furthermore, during trial, defense counsel twice informed the court that Johnson was "speaking irrationally" and was not able to follow the proceedings. (Tr. 136-37.)

 In addition to this evidence, the trial judge himself appeared to believe that Johnson was suffering from psychiatric troubles. He stated that he would recommend treatment and examination "through the Department of Correctional Services, if they deem it necessary." (Tr. 239.) At sentencing, the judge recommended "that this defendant be given some kind of psychiatric treatment if possible while he is incarcerated." (Sentencing Tr. at 8.) While there is a difference between mental illness and incompetence, strong evidence of the former certainly serves as reasonable grounds for evaluating the latter.

 Unquestionably, "it is within the discretion of the trial court to determine competency." (Gov't Br. at 8.) However, such a statement presupposes that the trial judge in fact exercises discretion (and understands that ordering a second hearing is within the scope of his authority). A trial court "must necessarily exercise its discretion and make findings on the record concerning the defendant's competency when the facts presented to the court warrant such an inquiry." Auen, 846 F.2d at 877-78 (emphasis added).

 The evidence put forth by defense counsel provided the court with a "reasonable ground" for believing that Johnson may not have been fit to stand trial. The trial judge, however, declined even to question Johnson briefly. (Petition Ex. A: 10/17/90 Hearing Tr. at 3-4.) The trial judge never indicated that he was basing his decision on his observation of Johnson during trial. (See Johnson Br. at 8.) Furthermore, this is not a case where the judge has expressed a belief that the defendant's request for a hearing is a sham. See, e.g., Maggio v. Fulford, 462 U.S. 111, 116-17, 76 L. Ed. 2d 794, 103 S. Ct. 2261 (1983). In sum, the record discloses no evidence that the trial judge ever exercised his discretion at all (See Johnson Br. at 13-17; Johnson Reply Br. at 2), or that he explicitly found Johnson competent to stand trial. (See Johnson Br. at 13 & n.4.)

 The trial judge denied all of counsel's requests, apparently based on his belief that the June 1990 competency determination precluded any reevaluation of Johnson's fitness. (See Petition Ex. A: 10/17/90 Hearing Tr. at 3-5 ("Why should I submit him to another one when he has been found fit? . . . What are you going to do, change the law of the State of New York?)) Contrary to this misinterpretation, both the case law and the New York Criminal Procedure Law state that a trial judge has the power to order a competency hearing at any point in the proceedings, and direct the judge to do so whenever the evidence raises a reasonable doubt as to the defendant's competency, regardless of whether a hearing has been held previously. See Drope, 420 U.S. at 181; Mason, 52 F.3d at 1292-93; Silverstein, 706 F.2d at 367 (citing People v. Gonzalez, 20 N.Y.2d 289, 282 N.Y.S.2d 538, 229 N.E.2d 220 (1967); People v. Armlin, 37 N.Y.2d 167, 371 N.Y.S.2d 691, 332 N.E.2d 870 (1975); People v. Smyth, 3 N.Y.2d 184, 164 N.Y.S.2d 737, 143 N.E.2d 922 (1957)).

 Under all of these circumstances, the state trial judge committed constitutional error in refusing Johnson's counsel's requests for a second competency examination or hearing.

 C. The Appropriate Relief

 Johnson's trial took place in October 1990, almost seven years ago. The Supreme Court and the Court of Appeals have recognized the "inherent difficulties of . . . a nunc pro tunc [psychiatric] determination" after a long passage of time. See Drope, 420 U.S. at 183; Pate, 383 U.S. at 387; Griffin, 935 F.2d at 931; Silverstein, 706 F.2d at 369. New York, however, "is free to retry petitioner, assuming, of course, that at the time of such trial he is competent to be tried." Drope, 420 U.S. at 183.


 For the reasons set forth above, Johnson's petition for a writ of habeas corpus is granted.


 Dated: New York, New York

 July 1, 1997

 Loretta A. Preska, U.S.D.J.

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