By Daniel Wiessner
NEW YORK, Dec 28 (Reuters) - A New York appeals court has
ruled that a parole revocation proceeding against a paroled
murderer should not have gone forward after the man was found
mentally incompetent to face criminal charges.
In a unanimous decision, the Appellate Division, First
Department, on Thursday reversed a lower court and the state
parole board, which voted in 2008 to revoke Edwin Lopez's parole
after he allegedly assaulted a fellow patient at a mental health
The parole board made its decision after Lopez was found
unfit to stand trial for assault and the criminal charges were
"Without competency, the minimal due process rights
guaranteed to (parolees) at revocation hearings would be
rendered useless," Justice David Friedman wrote for the court.
Lopez was convicted of second-degree murder in the 1970s and
sentenced to 15 years to life, the court said. He was released
to lifetime parole supervision in 1994, and in 2004 he was
admitted to a state-run mental health facility.
In 2008, Lopez allegedly grabbed another patient by the neck
and scratched him and was charged with assault.
A court-appointed psychologist examined Lopez and found that
he suffered from dementia and was "not able to demonstrate
either a rational or a factual understanding of the proceedings
against him," according to the First Department.
Lopez was deemed unfit for trial, and the charges were
dropped. Two days later, the parole board initiated revocation
proceedings against Lopez.
Over the objections of Lopez's attorney, who argued that his
client was unfit for the proceedings, an administrative law
judge recommended two years of imprisonment, which the parole
An appeals board denied Lopez's bid to overturn the
decision, finding that "mental illness is not an excuse for a
parole violation," the First Department said.
Lopez in 2010 filed a petition seeking a court order
overturning the revocation of his parole.
Bronx Supreme Court Justice Mark Friedlander in 2011 denied
the petition. The First Department on Thursday reversed that
Friedman said that the state legislature should consider
passing a law that creates a framework for the parole board to
gauge a parolee's competency prior to revocation proceedings. In
the meantime, he said, the board should determine competency on
a case-by-case basis.
Friedman was joined by Justices Angela Mazzarelli, Dianne
Renwick and Helen Freedman.
Concurring in a separate opinion, Justice James Catterson
said that the revocation of Lopez's parole was "wholly
inexplicable." But he disagreed with Friedman on the role of the
parole board, finding that the panel has no statutory authority
to make determinations of competency. Only courts, such as the
trial court in Lopez's case, can make those determinations, he
"The standard suggested by the majority -- that the Parole
Board should render a competency determination 'when it
reasonably appears that the (parolee) may be incompetent' -- is
too vague to be workable," Catterson wrote.
Lopez's attorney, Elon Harpaz of the Legal Aid Society, said
on Friday that the decision was "long overdue." The court
"simply recognized that parolees have the same fundamental due
process rights as criminal defendants."
The attorney general's office declined to comment, and the
Department of Corrections did not return calls seeking comment.
The case is Edwin Lopez v. Andrea Evans, New York State
Supreme Court, Appellate Division, First Department, No. 6426.
For Lopez: Elon Harpaz of the Legal Aid Society.
For the state: Simon Heller and Alison Nathan of the
attorney general's office.
Follow us on Twitter @ReutersLegal | Like us on Facebook