Based upon the latter psychiatric evaluations, the court on January 24, 2000 entered a second order of commitment, this time to OMRDD for a period of not in excess of one year to expire with the initial order of July 28, 1999. On January 26, 2000, the Office of Mental Retardation and Developmental Disabilities reported that since defendant was not diagnosed as mentally retarded, they would not be able to take her. The matter has languished since then, and the defendant remains in the custody of the Commissioner of OMRDD. On April 11, 2000, the County Attorney of St. Lawrence County wrote to the court, Commissioners of OMH and OMRDD, St. Lawrence County Director of Community Services, counsel for the People and defendant, the County Sheriff and the County Administrator, citing the County of St. Lawrence paying $80,000 per year for the defendant's commitment at the Central New York Psychiatric Center; the inability of the holding facility to provide treatment; the lack of a diagnosis, and requesting the court to conduct further proceedings based upon Jackson v Indiana (406 US 715 [1972]).
STATUTORY SCHEME
CPL article 730 provides a procedure for determining whether or not a defendant in a criminal case is incapacitated, as defined in CPL 730.10 (1), meaning that she lacks capacity to understand the proceedings against her or to assist in her defense. This is not a determination of mental illness, and is also completely unrelated to issues associated with the insanity defense and its concern with the defendant's mental capacity at the time of commission of the crime. (See, Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 730.10, at 442.) CPL 730.20 covers the mechanics of obtaining the first set of evaluations and reports. CPL 730.30 concerns what it takes to trigger the need for evaluations, and calls for a hearing either when the reports are not unanimous or where the court itself feels that one is necessary. CPL 730.50 governs the issue of fitness to proceed in the context of an indicted defendant. Under CPL 730.50 (1) this court has made a determination (in two different, differently dated orders) that defendant is an incapacitated person. This requires the court to "issue a final order of observation [misdemeanor may only be held for a reasonable period of time to determine whether she is likely to become fit to proceed. Since the treatment professionals have already expressed doubt about this likelihood, though only informally, the court finds that Jackson's protections have been called into play, requiring a hearing. People v Betances (176 Misc 2d 66 [Sup Ct, NY County 1998]), which denied Jackson relief in the context of an article 730 continuation of evaluative custody, does not compel a different result. In that case, unlike the one here, the court was not presented with a situation where the treatment professionals expressed doubt that defendant would ever meet the CPL standard of fitness to proceed. Based upon the foregoing, it is determined: (1) that since defendant has not as yet been arraigned on the indictment, that the District Attorney prepare an order to produce, so that defendant (even if not fit to proceed) may be arraigned; and (2) that counsel for the defendant move on notice to the prosecution, the Commissioners of OMH and OMRDD, the Director of Community Health Services for St. Lawrence County, Mental Hygiene Legal Service, and the St. Lawrence County Sheriff for a hearing under the requirements of the Jackson v Indiana case (supra), which must be read into the requirements of CPL article 730.