A murder defendant awaiting trial for 38 years while involuntarily confined to a mental institution is entitled to a hearing to determine the likelihood that he will attain the competency to proceed to trial in the foreseeable future, a judge has held.

In an order Friday, Supreme Court Justice James Pagones (See Profile), sitting as acting Dutchess County judge, ordered a hearing on Oct. 2 where the prosecution will have the burden of establishing "by a preponderance of the evidence" that Louis Acevedo "will be competent to stand trial in the future for the crimes for which he is accused."

Acevedo was indicted on charges of first-degree assault, attempted second-degree murder and second-degree murder in connection with attacks on Marist College student Shelly Sperling, who was gunned down in the school cafeteria on Feb. 18, 1975.

After a competency hearing, Acevedo was deemed incapable of proceeding to trial and unable to assist in his defense. He was briefly found fit for trial in March 1979, but that determination was reversed within two weeks.

Acevedo was originally confined under Criminal Procedure Law Article 730, which allows for the commitment of criminal defendants who are unfit for trial as a result of mental disease or defect. In 1979, a judge in Orange County converted that status to civil confinement under Jackson v. Indiana, 406 U.S. 715 (1972), but it was converted back to criminal confinement in 1993. Consequently, Acevedo remains committed under CPL 730.

In Jackson, the U.S. Supreme Court limited the period of time that a mentally incapacitated criminal defendant can be confined to "the reasonable period of time necessary to determine whether there is a substantial probability that he will attain capacity in the foreseeable future."

The New York Court of Appeals addressed Jackson in 1995 when, in People v. Schaffer, 86 NY2d 460, it held that absent a substantial probability that the defendant will become fit for trial, the state must either release the individual or initiate civil commitment proceedings.

Mental Hygiene Legal Services, representing Acevedo, brought a motion before Pagones arguing that the state cannot continue to hold the defendant under the Criminal Procedure Law and must afford him a Jackson hearing. Pagones agreed and scheduled that hearing for early October.

"The sole issue at this hearing is whether or not there is a substantial probability that Mr. Acevedo will attain the capacity to proceed to trial in the foreseeable future," Pagones wrote in Matter of Acevedo, 1349/75.

Pagones stressed that if Acevedo prevails at the Jackson hearing, it does not necessarily mean that he will go free or that the charges will be dropped.

"[T]his court notes that in the event that Mr. Acevedo is determined unlikely to achieve competency in the future, such defendant does not have a corollary right to dismissal of the charges given the public's countervailing interest in the court's continuing jurisdiction over the defendant to monitor the defendant's condition and location," Pagones wrote.

Arthur Baer and Lesley Della of Mental Hygiene Legal Services (MHLS) in Mineola represent Acevedo. MHLS declined comment.

Assistant District Attorney Kirsten Rappleyea appeared for the prosecution. She was not immediately available for comment. Also appearing was Assistant Attorney General Vincent Bradley.