Full Opinion (html_with_citations)

State of New York                                                        OPINION
Court of Appeals                                          This opinion is uncorrected and subject to revision
                                                            before publication in the New York Reports.




 No. 94
 The People &c. ex rel. Sara
 Molinaro, on behalf of Wei Li,
         Respondent,
      v.
 Warden, Rikers Island, &c.,
         Appellant.




 Julian Joiris, for appellant.
 Alexandra Ferlise, for respondent.




 RIVERA, J.:

        On this appeal we resolve an open question in this Court and hold that, in accordance

 with CPL article 730, when a defendant is not in custody, a court only has the authority to

 either order a competency examination on an out-patient basis or to direct that the


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defendant be confined in a hospital pending completion of the examination upon proper

medical recommendation that such confinement is necessary. The court may not remand a

defendant into custody solely because an examination has been ordered.



                                            I.

       Wei Li was charged by misdemeanor complaint with several offenses, none of

which were “qualifying offenses” under the bail laws (see CPL 510.10 [4]; 530.20 [1] [b]),

meaning that Criminal Court was required to release Wei Li on his own recognizance or

set particular conditions in a securing order to ensure his return to court (see CPL 500.10

[3-a]-[3-b]; 510.10 [3]; 530.20 [1] [a]). However, at arraignment, the court ordered a CPL

article 730 competency examination and remanded Wei Li into the custody of respondent,

the Warden of Rikers Island, pending completion of the examination.

       Relator filed the underlying petition for writ of habeas corpus on Wei Li’s behalf,

requesting his release. As relevant here, relator argued that the remand order was unlawful

on the grounds that Wei Li could not be held under the bail laws because he had not been

charged with a bail-eligible offense under CPL 510.10, and CPL 730.20 (2) did not

separately authorize the court to order defendant held in jail pending the examination.

Instead, under CPL 730.20 (2), the court could only order an examination on an out-patient




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basis or, upon recommendation by the appropriate medical official, by hospital

confinement. Respondent opposed release.1

      Supreme Court denied the petition, relying on People v Suero (
67 Misc 3d 229
, 236

[Sup Ct, Kings County 2020]), which held that CPL article 730 provided Criminal Court

the authority to hold defendant to “ensure that a potentially incapacitated person appears

at the competency examination.” The Appellate Division reversed and ordered Wei Li’s

immediate release, holding that CPL article 730 did not authorize Criminal Court to

remand Wei Li (
195 AD3d 885
 [2d Dept 2021]). Thereafter, the psychiatric evaluators

concluded that Wei Li was unfit to stand trial and the criminal charges against him were

dismissed pursuant to CPL 730.40 (2). We granted respondent leave to appeal (
37 NY3d 915
 [2021]).



                                            II.

      The appeal is moot because Wei Li is no longer in custody (see e.g. People ex rel.

McManus v Horn,
18 NY3d 660, 663
 [2012]), but both parties urge us to invoke the

mootness exception. We agree that the exception applies here because the question

presented is significant and novel (see Matter of LaBelle,
79 NY2d 350, 361
 [1992]), there



1
  Relator further asserted that the court did not make any inquiry or determination as to
whether Wei Li posed a flight risk. Apart from the statutory arguments, relator also urged
release because Wei Li was at high risk of contracting COVID-19 based on his age and the
conditions at Rikers Island where he was being held (see e.g. People ex rel. Stoughton v
Brann,
67 Misc 3d 629
, 632-634 [Sup Ct, NY County 2020]). The New York City
Department of Correction separately opposed release on that ground. These issues are not
before the Court on this appeal.
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                                             -4-                                        No. 94

is a likelihood of repetition, and the issue is likely to evade review because CPL article 730

examinations are usually conducted before the appellate process is completed (see e.g.

People ex rel. McManus,
18 NY3d at 663-664
; City of New York v Maul
14 NY3d 499, 507
 [2010]; Mental Hygiene Legal Servs. v Ford,
92 NY2d 500, 506
 [1998]; see generally

Matter of Hearst Corp. v Clyne,
50 NY2d 707, 713-714
 [1980]).2



                                              III.

       Turning to whether the arraignment court had discretion to remand Wei Li for the

sole purpose of conducting the competency examination, we now decide the question left

open in Matter of LaBelle (
79 NY2d at 361
) regarding the scope of the court’s discretionary

authority under CPL 730.20. For the reasons discussed, we hold that the court has no

authority beyond that expressly granted by CPL article 730.



                                              A.

       The starting point of our analysis is the statutory text because the words of the statute

are the best indicator of the legislature’s intent (see People v Galindo,
38 NY3d 199
, 203

[2022]; Riley v County of Broome,
95 NY2d 455, 463
 [2000]; Majewski v Broadalbin-

Perth Cent. School Dist.,
91 NY2d 577, 583
 [1998]). Where the language of the statute is




2
  Given that Wei Li is no longer in respondent’s custody, the competency hearing has been
held, and the criminal charges against him have since been dismissed, habeas relief is no
longer available and, thus, this proceeding should be converted into a declaratory judgment
action (see People ex rel. McManus,
18 NY3d at 664
 n 2).
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                                              -5-                                  No. 94

unambiguous, we apply its plain meaning (see Columbia Mem. Hosp. v Hinds,
38 NY3d 253
, 271 [2022]; Kuzmich v 50 Murray St. Acquisition LLC,
34 NY3d 84
, 91 [2019];

Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York,
41 NY2d 205
, 208

[1976]).

         Subdivisions (2) and (3) of CPL 730.20 provide, in relevant part:

                “When the defendant is not in custody at the time a court issues
                an order of examination, because [the defendant] was
                theretofore released on bail or on [their] 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” (CPL 730.20 [2]).

                “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 [the defendant] in custody therein, under
                sufficient guard, until the examination is completed” (CPL
                730.20 [3]).3


3
    For the purposes of CPL article 730, the term “director” is defined as:

                “(a) the director of a state hospital operated by the office of
                mental health or the director of a developmental center
                operated by the office for people with developmental
                disabilities, or (b) the director of a hospital operated by any
                local government of the state that has been certified by the
                commissioner as having adequate facilities to examine a
                defendant to determine if he is an incapacitated person, or (c)


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                                             B.

       As a threshold matter, we conclude that Wei Li was not “in custody” during his

arraignment for the purposes of subdivision (3) because he was not charged with a

qualifying offense under the bail laws and the court was required to order his release at

arraignment (see CPL 510.10 [3]; 530.20 [1] [a]). As its plain text makes clear,

subdivision (3) mandates the location for the examination as either (1) the place where the

defendant is in custody at the time the court orders the examination, or (2) at a hospital

facility, as might be necessary for an effective examination. The statute’s use of the phrase

“in custody,” like the phrase “hospital confinement,” refers, as a practical matter, to where

a defendant may be properly examined by psychiatric personnel. Thus, “in custody,” as

used in subdivision (3), does not broadly refer to custodial control over a defendant at a

courthouse.

       Notably, a different reading would mandate a remand or hospital confinement in

every case where the court at arraignment directs a competency examination. This

interpretation would, in turn, render subdivision (2) meaningless, in contravention of our

established rules of construction that require we give meaning to all the words of a statute

(see Majewski,
91 NY2d at 587
; Matter of OnBank & Trust Co.,
90 NY2d 725, 731
 [1997];

McKinney’s Cons Laws of NY, Book 1, Statutes § 98 [a]) and read the statute as a whole,




              the director of community mental health services” (CPL
              730.10 [4]).
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harmonizing all of its provisions (see Columbia Mem. Hosp., 38 NY3d at 271). Our

interpretation gives meaning to the entirety of CPL 730.20 and avoids undermining the

legislative intent reflected in the bail laws entitling Wei Li—and all other similarly situated

defendants charged with nonqualifying offenses—to release.

       Respondent contends that, even if Wei Li was not in custody before and during

arraignment, subdivision (2) authorized the court to order jail confinement for the purpose

of a competency examination. This argument proceeds along two lines: the legislature

intended “may” to be read as permissive, thus allowing the court to exercise its discretion

and remand a defendant, or that the word is not mandatory here because, as illustrated by

subdivision (3), when the legislature intended to limit judicial discretion it did so expressly

by use of the word “must.” This argument is unpersuasive.

       Permissive and discretionary terms are interpreted in context (see People v

Schonfeld,
74 NY2d 324, 328
 [1989]). “[M]andatory words have been interpreted in a

merely permissive sense and vice versa” and “the word ‘may’ in some instances imposes

a positive duty, not a discretion” (McKinney’s Cons Laws of NY, Book 1, Statutes § 177

[a], Comment at 344 [1971 ed]). Contrary to respondent’s claim, there is no dichotomous

reading of CPL 730.20 (2) and (3). Both subdivisions are mandatory directives on the

exercise of the court’s authority; subdivision (2) instructs the court on how to order a

competency examination when the defendant is in the community, and subdivision (3)

mandates where the examination shall be conducted when a defendant is already in

custody. Therefore, the legislative choice of the word “may” in subdivision (2) cabins the

court’s power and sets forth the only options that the court is authorized to apply when it

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                                           -8-                                      No. 94

orders a competency examination for a defendant charged with a nonqualifying offense

and who is thus entitled to release. A court issuing an order for a competency examination

in that case (1) may direct an examination on an outpatient basis or, (2) upon a medical

recommendation of the director, the court may, but need not, order hospital confinement

until completion of the examination.



                                            C.

      The legislative history supports our interpretation of subdivision (2). Section 730.20

was adopted in 1970 and remains unchanged today. Its addition was part of the innovations

included in the Criminal Procedure Law, which replaced the Code of Criminal Procedure

(see L 1970, ch 996, § 1). The Bartlett Commission Staff Comment explains that

subdivision (2) was modeled after a recommendation made by a committee of the Judicial

Conference of the District of Columbia Circuit (see Staff Comment of Temp St Commn on

Rev of Penal Law and Crim Code, 1967 Proposed NY CPL 405.20 at 461-462; see also

Richard G. Denzer, 1971 Practice Commentary, McKinney’s Cons Laws of NY, Book

11A, CPL 730.20 at 336). The committee had recommended limits on incarcerating

defendants who had otherwise been released from custody:

             “The status of the accused who has been enlarged on bail
             should not be changed because of a [pretrial] mental
             examination being ordered for [them], and an accused who is
             otherwise eligible for bail should not be denied bail because a
             [pretrial] mental examination is ordered for [them]; if,
             however, the examining psychiatrists report that the accused’s
             confinement is necessary for an effective examination the court
             should be empowered to commit to a mental hospital” (Judicial
             Conference of the District of Columbia Circuit, Report of the

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                                             -9-                                       No. 94

              Committee on Problems Connected with Mental Examination
              of the Accused in Criminal Cases, Before Trial,
              Recommendation 7 at 93 [1964]).

This history suggests that, in adopting subdivision (2), the legislature intended to replace

New York’s prior mandatory confinement regime (see Code Crim Pro § 660) with

outpatient services while still allowing a court, in its discretion, to order hospital

confinement if requested by the director.

       The Bartlett Commission also explained that “[m]ost of the provisions in [a]rticle

730 [we]re based upon the recommendations” of a comprehensive report by a special

committee of the Association of the Bar of the City of New York (Mem of Temp St Commn

on Rev of Penal Law and Crim Code at 9, Bill Jacket, L 1970, ch 996). That committee

noted that psychiatric hospitals in New York were overcrowded, in part, because courts

were required to order 60-day examination periods for criminal defendants alleged to be

incompetent, placing strain on hospitals and their staff (see Association of the Bar of the

City of New York, Special Committee on the Study of Commitment Procedures and the

Law Relating to Incompetents, Mental Illness, Due Process and the Criminal Defendant:

A Second Report and Additional Recommendations at 72-73, 86-89 [1968]). According to

the committee, “defendant[s] who might otherwise have been released on bail [were]

denied [their] freedom,” confined under restrictive conditions in a jail or hospital, and at

risk of “los[ing] [their] income” or “[their] jobs” (id. at 89). Thus, the committee

recommended that the legislature “expressly . . . authorize . . . examination[s] in appropriate

cases to be conducted on an out-patient basis without mandatory incarceration or

hospitalization” (id. [footnote omitted]). In other cases, the committee recommended that

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                                            - 10 -                                    No. 94

bail could be revoked for failure to comply with a court order or that defendants who

present risks to themselves or others could be held under other authority (see id. at 90).4




                                             IV.

       As relator notes, there are other measures available to ensure completion of a

defendant’s competency examination. For example, the court may order supervised release

with non-monetary conditions (see CPL 510.10 [3]; 530.20 [1] [a]), revoke the defendant’s

release status if they fail to appear for a scheduled examination and fail to appear in court

(see CPL 530.60 [1]), and, in appropriate cases, order a psychiatric evaluation to determine

whether civil confinement is necessary (see Mental Hygiene Law § 9.43; see also CPL

500.10 [3-c] [a]-[b]). Courts retain the authority to craft orders necessary to the specific




4
  Respondent’s reliance on lower court decisions (see People v Bruni,
67 Misc 3d 254
[Albany County Ct 2020]; Suero,
67 Misc 3d 229
; see also People v Wilboiner,
35 Misc 3d 193
 [Crim Ct, Kings County 2012]; People v Giannelli,
189 Misc 2d 366
 [Tuckahoe
Just Ct 2001]) that had interpreted CPL 730.20 as permitting a court to order remand of a
defendant charged with nonqualifying offenses is misplaced. We left this question open in
Matter of LaBelle until a proper case and parties squarely presented it (see
79 NY2d at 361
). This is that case and we now definitively resolve that question against the reading
adopted by those courts. To the extent respondent argues that the legislature could have
implicitly adopted the lower courts’ understanding of the statute, we note that this issue
was not as well-settled as respondent claims. This Court, as the final arbiter of the law, had
not decided the issue, nor had a panel of the Appellate Division. Moreover, other authorities
have promoted the interpretation we now adopt or declined to follow those lower courts
decisions (see e.g. Hon. Lawrence K. Marks et al., New York Pretrial Criminal Procedure
§ 4:4 at 239 [7 West’s NY Prac Series 2007]; Hon. Daniel Conviser, New York’s Bail
Reform Law: A Bench Book for Judges at 9-10 [rev July 11, 2019], available at
https://ocgov.net/oneida/sites/default/files/pdcriminal/CriminalAcademy/2019/New%20
York%27s%20Bail%20Reform%20Law%20-
%20A%20Bench%20Book%20for%20Judges.pdf).
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                                          - 11 -                                    No. 94

factual circumstances of each case. What the law does not permit is what occurred here:

remanding a defendant otherwise entitled to release under the law, solely because the court

ordered a CPL article 730 competency examination.

       Accordingly, the order of the Appellate Division should be modified, without costs,

by converting the proceeding to a declaratory judgment action and granting judgment in

accordance with this opinion and, as so modified, affirmed.


Order modified, without costs, by converting the proceeding to a declaratory judgment
action and granting judgment declaring in accordance with the opinion herein and, as so
modified, affirmed. Opinion by Judge Rivera. Acting Chief Judge Cannataro and Judges
Garcia, Wilson, Singas and Troutman concur.


Decided December 15, 2022




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