
    The People of the State of New York, Plaintiff, v. Thomas Gibbons, Defendant.
    Supreme Court, Trial Term, Bronx County,
    May 28, 1970.
    
      Burton B. Roberts, District Attorney (Bruce H. Goldstone of counsel), for plaintiff. Milton Adler and Albert Wax for defendant.
   Theodore it. Kupperman, J.

A hearing was held on the question of whether the defendant is ‘4 in such state of idiocy, imbecility or insanity as to be incapable of understanding the charge against him, or the proceedings or of making his defense ” (Code Crim. Pro., § 662). See in this connection the recent case of People v. Swallow (60 Misc 2d 171).

After hearing for the People, one of the psychiatrists, who conducted the original examination to the effect that the defendant was competent to stand trial, and another qualified psychiatrist for the defense to the effect that he was not competent, I concluded that the People had sustained the burden of proof by a preponderance of the evidence to the effect that the defendant was not “ in such state of idiocy, imbecility or insanity as to be incapable of understanding the charge against him, or the proceedings or of making his defense ”. However, I indicated that this was not so “ beyond a reasonable doubt ”,

Accordingly, the question became one of which standard should apply. A recent article on the front page of the New York Law Journal under “Notes and Views” is entitled ‘ ‘ Illegal Search, Seizure: Burden of Proof and Burden of Going Forward ” by Salvatore F. Quagliata (May 19, 1970).

This article analyzes various of the problems involved in connection with criminal trials. In the case of illegal search and seizure, the burden is on the defendant by a preponderance. Where the question is one of a voluntary confession, the burden is on the People beyond a reasonable doubt.

Where the problem is one of a tainted identification, the burden is on the People beyond a reasonable doubt to show that the confession is not tainted.

What should be the rule in a hearing to determine competency to stand trial?

It would seem to me that the rationale on confession and identification requiring proof beyond a reasonable doubt is, because this goes to the question of guilt or innocence on the specific charge. However, in the ordinary situation, preponderance should be sufficient where the question is collateral to the charge and accordingly that is the standard that should be set here.  