The horrendous killing and dismemberment of Leiby Kletzky and subsequent arrest of Levi Aron has shocked New York. In light of recent reports which suggest that Aron has been hallucinating and hearing voices, the question arises, “Will Aron actually be tried or be subject to normal criminal procedures for this murder?” The arraignment judge apparently ordered Aron to undergo psychiatric testing. What this means is that his lawyer most likely asked for a psychiatric examination under Article 730 of the Criminal Procedure Law.
§ 730.10 Fitness to proceed; definitions. As used in this article, the following terms have the following meanings: 1. "Incapacitated person" means a defendant who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense. 2. "Order of examination" means an order issued to an appropriate director by a criminal court wherein a criminal action is pending against a defendant, or by a family court pursuant to section 322.1 of the family court act wherein a juvenile delinquency proceeding is pending against a juvenile, directing that such person be examined for the purpose of determining if he is an incapacitated person.
Thus, the issue that must be determined by the examination is whether Aron is an “incapacitated person.” If Aron is, in fact, an incapacitated person, then he may be subject to procedures under section 730.50, under which he could be committed to the custody of the commissioner of mental health. He would be entitled to hearings to determine whether he is still an incapacitated person a year after the initial order, and then one every two years or so following the first hearing. If, on the other hand, he is not committed, then the prosecution would continue and the criminal action against him “must proceed.”
The question of whether or not Aron is “730” is different from the question of whether he would attempt to mount a defense of “Mental Disease or Defect” should his case go to trial. Remember that it would only get to this point if a psychologist had already determined that he was not an incapacitated person under the Criminal Procedure Law at the time the motion is made in court. Rather, Mental Disease or Defect is an affirmative defense found in the Penal Law which essentially requires a showing of incapacity at the time of the killing:
§ 40.15 Mental disease or defect. In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong.
Note that this is a time-specific standard. In other words, a person could be capable of proceeding to trial under CPL 730, but ultimately be found not guilty by reason of insanity by successfully convincing a jury of the mental disease or defect at the time of the criminal conduct.
It is unclear whether this defense will realistically be available to Aron, given that the statement he purportedly gave to the police suggests some level of rational thought at the time he allegedly decided to murder Kletzky.