618 N.Y.S.2d 660 | N.Y. App. Div. | 1994
Lead Opinion
OPINION OF THE COURT
The central issue on this appeal is whether an acquittee by reason of mental disease or defect, who has repeatedly violated the order of conditions upon which he gained release, and who is still mentally ill and a polysubstance abuser given to acts of violence, may still be found to be not suffering from a dangerous mental disorder because at the time of the hearing on recommitment pursuant to CPL 330.20 (14) the acquittee, under the structured environment of a psychiatric hospital, is not presently exhibiting dangerous behavior.
After lengthy hearings, the Supreme Court found that the acquittee, respondent Francis S., is mentally ill, and suffers from alcoholic dependence and polysubstance abuse; has an antisocial personality disorder; has a narcissistic personality disorder; has an attention deficit hyperactivity disorder; is a master of manipulation; uses the criminal justice system to his benefit; is highly likely to get into trouble again upon release from the hospital because he refuses to take medication or to attend Alcoholics Anonymous meetings; and cannot control himself to refrain from escalating incidents leading to numerous arrests. Nevertheless, the court felt constrained to release S. and not to grant the application for recommitment upon the authority of Matter of Torres (People), (166 AD2d 228, affd for reasons stated 78 NY2d 1085) because S. was not, at the time of the hearing, suffering from a dangerous mental disorder even though the reason for this improved condition was the fact that he had been hospitalized for some six months, and on a regimen of medication and separation from polysubstance abuse. We find that the court’s reliance on Matter of Torres (supra) was misplaced; that the appellants established, by a fair preponderance of the evi
This recommitment proceeding has its genesis in a 1983 incident. At that time, S. was at the scene of a drug raid for the purposes of purchasing marihuana. He refused the order of a police officer to leave and was arrested for disorderly conduct. As he was being placed under arrest, S. pulled out a six-inch hunting knife and attempted to stab the officer. As a result, S. was also charged with attempted assault in the first degree and criminal possession of a weapon in the third degree. Following arraignment on these charges, he was released on his own recognizance and then engaged in various criminal acts in New Jersey, which resulted in his arrest and confinement at Greystone Psychiatric Center. During his confinement, which lasted from May 17, 1984 until April 29, 1986, S. reported aural and visual hallucinations, claiming in one instance that he was seeing snakes, bugs and images of Satan and was hearing voices telling him to get a gun and blow his brains out. S. also claimed that he communicated with God, worked for God, was God, that he feared that Satan would kill him because he was an archangel, and that he was depressed and wanted to die.
As a result of the observations as well as examinations of respondent, S. was diagnosed as a chronic undifferentiated schizophrenic with acute exacerbation. His treating psychiatrist prescribed a high dosage of antipsychotic medication. Greystone’s doctors agreed that S. presented a danger to himself and others and thus, despite the medication’s beneficial effects, required continued hospitalization on a closed ward until he was stabilized on it. On August 21, 1984, S. escaped from Greystone using a spoon he had fashioned into a key that could open a security lock. He was quickly apprehended, returned to Greystone, and ultimately stabilized on Prolixin.
On April 29, 1986, S. was discharged from Greystone and extradited to New York to face prosecution on the 1983 attempted assault and weapon charges. The discharge diagnosis reported that he remained a chronic undifferentiated schizophrenic but was in remission because of his hospitalization and treatment at Greystone, and was no longer hostile or violent. The doctor who discharged S. recommended that he
Upon being returned to New York, S. was released on his own recognizance. In February 1987, while drunk and without a driver’s license, S. drove his car into a parked car in Manhattan, causing a multivehicle accident. As a result, S. was charged with reckless endangerment of property, reckless driving, and driving while intoxicated. One month later, S. was found in possession of three glassine envelopes of heroin and was charged with criminal possession of a controlled substance in the seventh degree, to which he pleaded guilty, and served a short prison sentence.
On August 7, 1987, before Justice Kleiman, respondent pleaded not guilty by reason of mental disease or defect in satisfaction of the 1983 indictment for attempted assault of the police officer and weapon possession, and following a hearing pursuant to CPL 330.20 (7), was found to be mentally ill, but not suffering from a dangerous mental disorder, as those terms are defined in CPL 330.20 (1) (c) and (d). Accordingly, S. was remanded to a nonsecure facility for four months under the custody of the New York State Office of Mental Health. In addition, Justice Kleiman issued a five-year order of conditions, which required that S. comply with the terms of the treatment plan prescribed by the Office of Mental Health. As a result of the plea before Justice Kleiman, the charges relating to the car accident noted above were dismissed.
In May of 1988, the Commissioner of the New York State Office of Mental Health brought a recommitment application pursuant to CPL 330.20 (14). In support of the application, Dr. Maurice Masse stated that S. was not compliant with his treatment. During the pendency of that application, S. continued his substance-induced violent behavior. On June 4, 1988, he was arrested and charged in New Jersey for shoplifting and aggravated assault on a police officer. On July 27, 1988, he was arrested for driving while intoxicated. Then, at around midnight on November 2, 1989, S. threatened a bartender and patrons at Canastel’s restaurant, on the corner of 19th Street and Park Avenue South in Manhattan, with a 10-inch-long metal pipe wrapped in leather. Police Officer Daniel Pusateri encountered S. outside of the restaurant after he had been ejected but then tried to get back inside. Officer Pusateri asked S. to leave the area, but he refused and swung his arms around and yelled. As S. was being placed under arrest for disorderly conduct, he bit the officer on the hand. As a result,
On December 3, 1989, immediately after his release from custody on those charges, S. visited the Coastal Restaurant on Amsterdam Avenue in Manhattan. When he was asked to leave the restaurant, he kicked in a glass panel door. When police officers arrived to arrest S., he threatened the officers, "I will kill you. I will find out where you live. I will cut you up.” S. was charged with criminal trespass and several counts of criminal mischief, but was apparently released on his own recognizance.
On December 13, 1989, S. again became involved in an altercation with a bartender, this time at Bamboo Bernies Cocktail Lounge in Manhattan. S. threatened to hit the bartender with a metal pipe, shouting at the bartender, "I’m going to get you.” He pounded the metal pipe on the counter of the bar, damaged the bar and broke several glasses. Once again, when the police arrived to arrest S., he threatened the officers, exclaiming "I am going to sneak up behind you and your partner when I get out and blow you two away; when I get out I’m going back there [Bamboo Bernies] and blow those guys away. Mark my words, I’m gonna do it. They are going to be dead and so are you. You’re gonna be dead and I’m gonna laugh and spit in your face.” S. was charged with criminal possession of a weapon, two counts of criminal mischief, and menacing. On January 10, 1990, S. pleaded guilty to criminal mischief and was sentenced to 90 days in jail, apparently covering charges arising out of the December 3, 1989 incident also.
In January of 1990, S. was arrested and brought into the custody of the Commissioner of Mental Health and committed to the Kirby Forensic Psychiatric Center. Based on this commitment and examination by doctors, S. was deemed to suffer from a dangerous mental disorder. However, following a hearing and after S. had been in a hospital for some time, he was found to be mentally ill by Justice Shorter, but not suffering from a dangerous mental disorder. As a result, Justice Shorter ordered S.’s commitment in a nonsecure facility. Justice Shorter also altered the conditions and specifically required that S. refrain from the use of alcohol, nonprescribed controlled substances and illegal drugs.
On June 17, 1991, S. was arrested in New Jersey for weapons possession and driving while intoxicated. The disposition of that arrest was unknown at the time of the hearing. On July 13, 1991, S. and his girlfriend Colleen Bruck were observed in Southampton, Long Island shouting obscenities at a police officer who had issued Ms. Bruck a parking summons. Officer Stephen O’Brien placed the two under arrest for disorderly conduct, but S. resisted violently, kicking and pushing the officers who had arrived on the scene. S. kicked the doors and windows of the police car taking him to the station house, and at the station house head-butted Officer O’Brien and kicked him in the groin. S. was charged with assault, resisting arrest and disorderly conduct, which charges were still pending at the time of the hearing. On July 6, 1992, S. got into an argument with his girlfriend, Ms. Bruck, in the course of which he broke the windshield and one of the door windows of her automobile. S. was charged with criminal mischief arising out of this incident.
On August 4, 1992, the Office of Mental Health (OMH) brought a recommitment application pursuant to CPL 330.20 (14) based upon its review of S.’s psychiatric records, his arrests in 1991 and 1992, and his persistent noncompliance with the order of conditions. OMH asserted that S. suffered from a dangerous mental disorder. However, OMH was not able to locate S.
On September 8, 1992, S. swung a pair of three-foot sticks at a young couple in Central Park and, when others tried to take the sticks away from him, S. brandished a knife and swung it twice at the young man. S. was arrested on the complaints of the persons he had threatened, whereupon the police found, in addition to the knife, six hypodermic needles and drug paraphernalia in S.’s backpack. One of the arresting officers testified that following his arrest as a result of this incident S. continued to act in a bizarre manner, "howl[ed] like an animal”, and ridiculed other inmates. The officer also testified that following fingerprinting, S. washed his hands in the
On September 10, 1992 James Gilbride, chief of security at Kirby Forensic Psychiatric Center, went to Manhattan Criminal Court to execute the outstanding arrest warrant issued by OMH in connection with the recommitment application. All criminal charges pending in Manhattan against S. were dismissed, and S. was placed in the custody of OMH. S. demanded that the Judge ignore the warrant, and when the Judge refused to do so, he called her "a stupid bitch” and threatened to kill her. He then attempted to escape but was subdued. At Kirby, on September 22, 1992, S. appeared before a Supreme Court Justice, and a 30-day examination order was issued. Pursuant to that order, S. was sent to South Beach Psychiatric Center to be evaluated by two doctors to determine whether he suffered from a dangerous mental disorder.
On October 7, 1992, Doctor Delfín G.C. Ibanez, a psychiatrist, examined S. Based on that examination, the doctor’s observations of S.’s conduct and a review of his history, both psychiatric and criminal, Dr. Ibanez found that S. had a long history of mental illness and drug abuse. S.’s history of psychiatric illness and behavioral problems had begun manifesting themselves when he was five years old when he experienced hyperactivity and temper tantrums. He had psychiatric help when he was seven years old and was diagnosed as suffering from attention deficit disorder.
In 1982, S. had been hospitalized in a psychiatric institution in Pennsylvania where lithium had been prescribed, but the drug did not work because S. did not take it as ordered. He had also been hospitalized in a psychiatric institution in New Jersey. The records demonstrated that S. was a long-time abuser of drugs and alcohol. As Dr. Ibanez testified, S. admitted that he had begun sniffing glue at the age of 13 and later experimented with LSD. He had also used PCP, intravenous heroin and other opiates.
During his observation of S., Dr. Ibanez noted that he was irritable and had mood swings, his speech was loud, pressured and rapid, he had a restricted affect, and he was hyperactive. Dr. Ibanez described S.’s thinking as circumstantial, tangen
S.’s delusions of grandeur were exemplified by his discussion with Dr. Ibanez about a "Pan Am Project” involving construction of a theater on the roof of the Pan Am building at which he would promote international concerts via satellite and would sell photos and posters of John Lennon and Yoko Ono. S. expressed no concern about the owner’s view of the project and continued discussing it as if it were an ongoing project. Dr. Ibanez noted that even if S. had designed such a plan it still demonstrated that he was delusional because of the manner in which he discussed it—"the grandiosity, the flavor, the mood that is being presented” that demonstrates the symptom of mania. Similar delusions were S.’s claims that he has multi-million dollar business deals with people in Southampton, Long Island and references to famous people as if he knew them personally.
On October 6, 1992, Doctor Erazmo R. Cruz, a psychiatrist, also examined S., reviewed his psychiatric and criminal history and observed his conduct. He concurred with Dr. Ibanez’s descriptions of the length of S.’s psychiatric history, his history of drug abuse, his irritable, moody conduct and the delusional nature of his thinking.
Based on the information available and their observations, Drs. Cruz and Ibanez diagnosed S. as suffering from bipolar disorder, manic and recurrent, polysubstance abuse and antisocial personality disorder. They explained that bipolar disorder could be treated with prescribed antipsychotic medication —Prolixin and lithium—but Dr. Ibanez added that S. often refused to take it and that his failure to take the prescribed medication would result in his descending into a paranoid psychotic episode. During one session, S. told Dr. Ibanez that he did not need medication, and when the medication was ordered in the form of tablets he pretended to take them by "cheeking” and not swallowing them. When the medication was changed to concentrate form, S. refused to take it. Both doctors agreed that S.’s violent conduct outside of the facility, and his numerous arrests, all indicate his descent into a paranoid psychotic state, characterized by a total loss of control, lack of insight and impairment of judgment.
Drs. Cruz and Ibanez agreed that S.’s paranoid symptoms were aggravated by his use of drugs and alcohol, and opined
Both doctors acknowledged that S. exhibited no symptoms of a dangerous mental disorder and was not psychotic when he was in a psychiatric institution. They both testified, however, that this was not unusual since an individual committed against his will would be given medication and forced to comply with a treatment plan. Moreover, an individual such as S. would try to be on good behavior to ensure his release. In short, compliance or lack of dangerousness in a facility does not necessarily mean that an individual does not suffer from a dangerous mental disorder. Noting S.’s history, his impaired judgment, loss of control, psychotic and manic symptoms, and recurrent antisocial behavior, both opined that once S. was released and consequently not monitored in the controlled environment, he would fail to be compliant with any outpatient treatment plan that prescribed medication or required him to attend clinic follow-up appointments.
Based on the conclusions of Drs. Ibanez and Cruz that S. suffered from a dangerous mental disorder, he was transferred to Kirby Forensic Psychiatric Center, a secure psychiatric facility. There Dr. Robert B. Poundstone, a board certified psychiatrist, began treating S. Based on his review of S.’s psychiatric records, observations and conversations with S. and talks with S.’s mother, he diagnosed S. as having a major affective disorder, manic type, and manic bipolar disorder. He added that S. also suffered from other diagnoses including attention deficit disorder (Dr. Cruz disagreed with this particular diagnosis), antisocial personality, alcoholism and drug abuse.
Like Drs. Ibanez and Cruz, Dr. Poundstone, in arriving at his diagnosis, relied on S.’s pressured, rapid-fire speech, signs of grandiosity, paranoid and persecutory delusions, his nonsensical verbal production, and his tangential thought pro
Dr. Poundstone also explained that S. had repeatedly denied that he was mentally ill, that he needed inpatient care or had a current problem with drugs and alcohol. These denials, according to Dr. Poundstone, substantially interfered with adequate treatment. He agreed with Drs. Cruz and Ibanez that S.’s behavior demonstrated a desire to achieve freedom, not to achieve health. Thus, according to Dr. Poundstone, while in the hospital, S. would "behave” to try to convince the court that he should not be in the hospital. Dr. Poundstone characterized S. as a very clever man, able to fool people to attain certain ends by putting "his best face forward,” in order to conceal what might be behind his goal-oriented behavior. Indeed, Dr. Poundstone testified that such manipulative behavior is symptomatic of bipolar disorder.
Finally, Dr. Poundstone was of the opinion that S.’s 26 arrests were symptomatic of S.’s mental illness in that they show his bad judgment and inability to appreciate the consequences of an act, which is a common feature of a manic person. As a result of his evaluation, Dr. Poundstone agreed that S.’s illness required care and treatment in an inpatient facility and that S. was not suitable for discharge because, outside of a psychiatric institution, he reverted to his previous behavior, which included drug and alcohol use, and that S. would be a danger to himself or others.
S. testified at the hearing that the crime for which he entered a not responsible plea resulted from a misunderstanding with a police officer. The police officer wanted a "payoff” to let him walk away but S. refused. S. did not take out a knife and swing it at the police officer. Although he entered a not responsible plea, he was not in fact mentally ill, but rather entered the plea because he did not want to go to jail and "be someone’s bitch.”
S. conceded that he had been arrested on November 2, December 3, and December 13, 1989, arising from altercations with bartenders at different restaurants in Manhattan; on June 17, 1991, for driving while intoxicated and possession of a weapon; on July 6, 1992, for fighting with his girlfriend Colleen Bruck; and on September 8, 1992, for an incident in
Similarly, on December 13, 1989, when the bartender at Bamboo Bernies slapped S.’s girlfriend for no reason, S., who had been drinking that day and had a "brash” attitude, confronted the bartender, hit his "drumstick” on the bar and caused the glasses to fall down and break. Once again, when the police arrived, S. tried to explain what happened; however, since the bartender was friends with the police, S. was arrested. S. denied threatening to kill the police officers and made similar denials as to the December 3, 1989 incident.
S. testified that the June 17, 1991 driving while intoxicated charge was falsified, and denied becoming violent and screaming while at the precinct. With respect to the September 8, 1992 incident, S. said it was he who was the victim of an assault. He was in Central Park talking to a girl and before S. knew it, a man grabbed him by the neck and knocked him down, causing him to fall on his binoculars and break them. In response, S. ran over to his backpack, picked up a pair of "drumsticks,” gave himself a "safe zone,” waved the sticks in the air and called police officers over for assistance.
S. admitted to having had a "bad attitude” towards the police that day, and he insisted that they arrest the people that had attacked him. The police, however, not liking S.’s "big mouth,” arrested him instead. At the precinct, S. might have sang and said he felt like a baboon and did "goofy things” in the cell, but he did not howl, and did not wash his hands in the toilet. S. denied drinking or taking drugs on that day, denied having possession of a knife or pulling a knife, and denied being in possession of hypodermic needles.
S. admitted that on July 6, 1992, he broke the window of his girlfriend’s car, and she bit him on the arm and hit him with a steering wheel lock. However, as to the charges brought in Southampton, arising from the July 13, 1991 incident, S. refused to testify about the details of the events that transpired because the criminal action was still pending and he had a $5 million lawsuit pending against the police department. However, he testified that the police officers from Southampton had lied.
On November 6, 1992, Doctor Azariah Eshkenazi, a board-certified, court-appointed psychiatrist, examined S. for one hour. Based on that interview, as well as his review of S.’s medical records and talks with the current treating psychiatrist, Dr. Poundstone, Dr. Eshkenazi concluded that S. suffered from a mental illness, but as long as he did not use drugs or alcohol he was not dangerous. Dr. Eshkenazi diagnosed S. as suffering from bipolar disorder and drug and alcohol abuse. According to the doctor, at the time of the evaluation the only current signs and symptoms of S.’s mental illness were fast speech and slight elation, and he concluded that S.’s bipolar disorder was in remission. He added, however, that with bipolar disorder there will be a period of time, three or four months, where the person appears "normal”, i.e., not elated or depressed. Dr. Eshkenazi also noted that the substance abuse was in remission, but conceded that S.’s confinement in the hospital most probably accounted for this condition.
On October 13, 1992, Doctor Neis K. Langsten, a private psychiatrist affiliated with the outpatient psychiatric clinic at Metropolitan Hospital, and an assistant professor of psychiatry at New York Medical College, who was hired by S.’s girlfriend, Colleen Bruck, interviewed S. for an hour and a half for the purpose of testifying in this matter. Dr. Langsten had first met S. in February of 1991, when he was working at the walk-in clinic at Metropolitan Hospital, and saw him three times during a period of one and one-half years. During that period, the respondent missed appointments, cancelled rescheduled appointments, and was "not compliant.” The doctor did not review any of S.’s medical records in making his evaluation, and did not talk to Dr. Cruz or Dr. Ibanez. In addition, the doctor did not know the extent or the details of S.’s criminal record.
Dr. Langsten noted, in connection with his evaluation, that S. displayed restless, pressured, rapid speech, and a hypo-manic mood, i.e., a mild mania. He conceded that S. could suffer from more severe manic episodes while under the influence of alcohol. Dr. Langsten concluded that S. suffered
Doctor Michael Weiner, an attending physician at Bellevue, also hired by Ms. Bruck, interviewed S. for 90 minutes on December 8, 1992. Dr. Weiner concluded that S. suffered from attention deficit hyperactivity disorder, alcohol dependence, polysubstance abuse and narcissistic and antisocial personality disorders, but not bipolar disorder because of S.’s history of persistent overactivity, persistent high level of energy and the fact that there was no evidence of a manic pole or depressed pole. Dr. Weiner viewed S.’s problem solely as diminished attention in that he had an inability to complete tasks because he is distracted by external stimuli.
All three doctors agreed that S. did not exhibit any signs of psychotic behavior, namely, hallucinations, delusions, looseness of association or flight of ideas; and all noted that his judgment and insight were good. While all three doctors found that S. suffered from long-standing mental illnesses of various types, and the abuse of drugs and alcohol, which caused him to commit crimes, all agreed that if S. were to refrain from using drugs and alcohol he would not be dangerous to himself or others. Not surprisingly, none of the doctors could predict S.’s compliance with such abstention; according to Dr. Eshkenazi, one needed to "hope and pray” that S. followed the rules.
At the conclusion of the hearing, Justice Miller found that S. was mentally ill and had violated his order of conditions as he had repeatedly done in the past. Based on his history, the Court found that it was "highly likely” that when released, S. would continue his uncontrollable behavior outside of a hospital setting and would simply not comply with any treatment plan, but rather would relapse into drug and alcohol abuse. Justice Miller acknowledged that S.’s behavior had been controlled during his hospital stay, but she explained:
"Mr. S. is a master of manipulation. He uses the criminal system to his benefit, so he has spent relatively little time in jail in spite of his 26 arrests. In the hospital, because he wants to get out, and also because he is in a structured environment, his behavior is more controlled. * * * Based on his history,
"His outbursts in the courtroom diminished because of the structured hospital setting, and because he is regularly taking Cylert. But when he’s outside the hospital, the patient does not take medication regularly. Reasonable requests to have him move on have resulted in him defying police officers, bartenders, restaurant employees, etc. Although the patient stated that alcohol and drugs plagued him for years, he is not consistent in his treatment. Based on his past history, he will not commit himself to the A.A. program totally and with sufficient regularity for success.
"The patient is verbally provocative, even with his fiance. He cannot control himself to refrain from escalating incidents. Such behavior has led to his numerous arrests. He never learns from his past experience. As I indicated, the patient has violated his order of conditions. He has constantly moved from program to program. This is what he has done in the past. He never stays at any one program and complies with it 100 percent, so that progress can be made. He never moves from square one. And if he’s released from the hospital he probably will continue that same behavior. However, the law does not permit me to confine Mr. S. to a secure hospital, because he is not currently dangerous.
"Yet based on his limitations and his past history, it is highly likely that if he is released he will not attend A.A. regularly, he will not continue to take Cylert, even though he’s benefited by it, he will not stop provoking people, he will not accept lawful authority, he will not respect the rights of others; because he considers that he alone is the ultimate judge of what is proper and reasonable behavior.”
Nevertheless, relying on Matter of Torres (People) (166 AD2d 228, affd for reasons stated 78 NY2d 1085, supra) the court "reluctantly” held that the Commissioner failed to demonstrate that S. suffered from a dangerous mental disorder. Justice Miller’s ruling was incorrect, in our view, since there was ample evidence that S. suffered from such a disorder. Consequently, the order appealed from should be reversed, the application granted and S. confined to a secure psychiatric institution.
Medical support for Justice Miller’s conclusion that S. would revert to drug and alcohol use outside of the facility was offered by three psychiatrists who testified on behalf of the State. All agreed that until respondent acknowledges his mental illness and abstains from drug and alcohol abuse he will continue to have a dangerous mental disorder. Moreover, while S.’s psychiatrists disagreed that he would revert to his prior behavior, they agreed that if he began abusing drugs and alcohol again he would revert to his dangerous behavior. Notably, S. acknowledged that his criminal record was due to his dependency on drugs and alcohol, and that he "slipped” several times since his release from South Beach in 1990, i.e., he began drinking on those occasions. In short, Justice Miller had little doubt on this record that S. would revert to the very behavior that the State’s psychiatrists characterized as demonstrating a dangerous mental disorder.
Despite the absence of any support in the record for the conclusion that respondent was merely mentally ill, and Justice Miller’s finding a strong probability of his reversion to a dangerous state, she nevertheless denied the recommitment application. In doing so, she interpreted Matter of Torres (supra) to mean that when a CPL 330.20 defendant’s external behavior improves because of the structured setting in which he is confined, he is not dangerously mentally ill under CPL 330.20 (1) (c) even though it is "highly likely” that he will revert to his dangerous behavior outside the structured environment. That is not the holding of Torres.
In Torres (supra), the defendant had been found not respon
Recently, the Appellate Division, Second Department, was confronted with a similar situation in the context of a civil commitment hearing (Mental Hygiene Law § 9.31) which required a finding of dangerous mental disorder by clear and convincing evidence (Matter of Seltzer v Hogue, 187 AD2d 230). Hogue, like S., had a history of polysubstance abuse and mental illness. Invariably, following release from psychiatric hospitals, Hogue would recommence his use of alcohol and illegal drugs, stop taking medication and engage in violent and uncontrollable behavior. Whenever he was recommitted, just like S., his behavior would become nonviolent, and thus the trial court denied Hogue’s involuntary commitment because at the time of the hearing, he was no longer a danger to himself or to others. However, the Second Department unanimously reversed and granted the application for retention, specifically finding that "although Hogue’s external behavior has improved somewhat in Creedmoor (a structured setting in which he takes certain seizure medication), he has a history of noncompliance with any treatment program upon his release
We find no merit to S.’s argument that since he was originally found to be mentally ill but not suffering from a dangerous mental disorder, following his plea of not responsible by reason of mental disease or defect, he may not be recommitted pursuant to CPL 330.20 (14) which requires a finding of dangerous mental disorder by a preponderance of the evidence, but, instead should be treated like a civil committee which requires a finding of dangerousness by clear and convincing evidence. That argument was specifically rejected by the Court of Appeals as a matter of statutory construction (People v Stone, 73 NY2d 296, 299-300) and by the Appellate Division, Second Department, under constitutional due process and equal protection standards (Matter of Zamichow [New York State Commr. of Mental Health], 176 AD2d 807, appeal dismissed sub nom. Matter of Lloyd Z., 79 NY2d 851). In any event, even if the clear and convincing evidence test were deemed applicable to the instant proceeding, we would find that the evidence at the hearing met that more stringent test.
Foucha v Louisiana (504 US —, 112 S Ct 1780) does not support the dissenter’s contention that S.’s due process rights were violated. In Foucha, the State retained the defendant in a psychiatric facility merely because he was dangerous; but clearly, confinement in a psychiatric facility is unjustifiable once the acquittee regains his sanity. As the Supreme Court observed (504 US, supra, at —, 112 S Ct, supra, at 1784): "In this case, Louisiana does not contend that Foucha was mentally ill at the time of the trial court’s hearing. Thus, the basis for holding Foucha in a psychiatric facility as an insanity acquittee has disappeared, and the State is no longer entitled to hold him on that basis.” In the case at bar, the court stated: "The Court finds that the defendant is mentally ill. All the psychiatrists have testified that he is mentally ill.” Foucha is thus readily distinguishable on its facts.
Nor do we find merit to S.’s claim that the proceeding to recommit him was untimely. The application for recommit
CPL 330.20 (14) provides that "[a]t any time during the period covered by an order of conditions an application may be made by the commissioner or the district attorney to the court that issued such order * * * for a recommitment order when the applicant is of the view that the defendant has a dangerous mental disorder.” The order of conditions did not expire until August 7, 1992, and the present application was filed on August 4, 1992. Therefore, it was timely. While CPL 330.20 (14) requires service of the application for recommitment on the defendant, it does not require that service on the defendant be made simultaneously and within the five-year term of the order of conditions. The failure to serve the recommitment application on S. within the five-year period was not a jurisdictional defect, and the State was properly permitted to hold the statutorily mandated hearing, especially where the recommitment application was made to the court within the period governing the order of conditions (see, People ex rel. Thorpe v Von Holden, 63 NY2d 546).
Finally, S. argues that the affidavit submitted in support of the recommitment application was insufficient and, therefore, the application should be dismissed. Specifically, S. argues that Dr. Castillo’s clinical evaluation from 1990 was not representative of his clinical diagnosis at the time of the recommitment application, and that the basis for the doctor’s determination that S. was dangerous was not based on personal knowledge. We disagree. CPL 330.20 (20) requires that all applications pursuant to CPL 330.20 be supported with an affidavit of at least one psychiatrist which sets forth the defendant’s clinical diagnosis, a detailed analysis of the defendant’s mental condition and the opinion of the psychiatric examiner.
In his affidavit, Dr. Castillo stated that S.’s clinical diagnosis
In any event, the alleged insufficiency of the allegations in the affidavit submitted in support of the recommitment application are not jurisdictional defects, but rather would be pertinent only to a motion to dismiss the proceeding or a habeas corpus petition prior to hearings (see, CPL 330.20 [20]). We perceive this as analogous to a motion to dismiss an indictment on the ground that the "evidence before the grand jury was not legally sufficient to establish the offense charged.” (CPL 210.20 [1] [b].) The Criminal Procedure Law provides in this respect: "The validity of an order denying any motion made pursuant to this section [to dismiss an indictment for insufficiency] is not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence” (CPL 210.30 [6]). By analogy, there seems little point in concentrating our attention upon the technical sufficiency of the affidavit, upon which the recommitment proceeding was commenced, after extensive hearings generating over 1,500 pages of mostly psychiatric testimony, in the course of which 1,800 pages of S.’s psychiatric records were admitted into evidence, explored and tested. The question before us is whether or not the evidence at the hearing established that S. had a dangerous mental disorder (CPL 330.20 [14]) as defined by CPL 330.20 (1) (c). We have concluded that the evidence at the hearing established that S. did suffer from a dangerous mental disorder.
The order of the Supreme Court, New York County (Edith Miller, J.), entered February 1, 1993, which denied the appellants’ application seeking recommitment of respondent Francis S., also known as Francis S., pursuant to CPL 330.20 (14), should be reversed, on the law and on the facts, and the application should be granted.
Dissenting Opinion
Appellants, the New York
As I believe all three of respondent’s principal points possess merit, I find it necessary to dissent from the majority’s determination to reverse the appealed order and grant the application for recommitment.
While I believe that the facts relevant to the proper disposition of this matter are relatively simple, the possibility that this matter will ultimately be decided on the basis of the hearing evidence requires a more extended factual exposition.
The present recommitment proceeding arises out of events dating back to October of 1983. At that time, respondent was arrested and charged with attempted assault in the first degree and criminal possession of a weapon in the third degree. After being arraigned on the charges, respondent was released on his own recognizance and some seven months later, in May 1984, while the New York charges were still pending, was arrested for larceny-related offenses in New Jersey. He was subsequently psychiatrically hospitalized in New Jersey, having been found incompetent to stand trial on the New Jersey charges, and remained in New Jersey at Greystone Psychiatric Center for nearly two years. While at Greystone, respondent was diagnosed as a schizophrenic and accordingly treated with large doses of antipsychotic medication.
In June of 1987, respondent pleaded not guilty to the New York charges, premising his claim of innocence on grounds of mental disease or defect. He was, thereafter, remanded to Kirby Forensic Psychiatric Center where he was examined by two forensic psychiatric experts. These doctors diagnosed respondent as suffering from bipolar disorder and indicated that he should be treated with lithium. The doctors agreed that although respondent was mentally ill he did not suffer from a dangerous mental disorder.
On August 7, 1987, respondent’s not responsible plea was accepted and the charges were dismissed. On the same date a hearing was held pursuant to CPL 330.20 (6) to determine respondent’s disposition as an insanity acquittee. Following the hearing, the court, in accordance with the aforementioned opinions of the two examining psychiatrists, found respondent mentally ill, but not dangerously so, and remanded respondent to the custody of the State Commissioner of Mental Health pursuant to CPL 330.20 (7) to be committed as a civil patient (ibid.) for a period of four months. Issued along with the civil commitment order was an order of conditions (see, CPL 330.20 [7]), valid for a five-year period (see, CPL 330.20 [1] [o]), requiring simply that the respondent comply with his treatment plan and that he not leave any facility to which he was confined while in the Commissioner’s custody without authorization (ibid.).*
Pursuant to the civil commitment order, respondent was hospitalized at South Beach Psychiatric Center. He was discharged from South Beach in December 1987 with plans to receive follow-up care at the Coney Island/Sheepshead Bay outpatient clinic.
In May of 1988, the Commissioner filed a recommitment application, alleging that respondent had not been compliant with treatment. The application, however, appears to have been withdrawn notwithstanding the June and July 1988
Following the arrests of June and July 1988, there is no record of any proven or for that matter alleged illegal conduct by respondent until the Canastel’s incident some 17 months later. That incident, in November of 1989 (see, majority opn, at 8), resulted in a plea by respondent to assault in the third degree and a jail term of 30 days. Shortly after the Canastel’s incident, on December 3, 1989 and December 13, 1989, respectively, there occurred two additional incidents, also at bars (see, majority opn, at 9), for which respondent was convicted, upon his plea
A second application to recommit respondent pursuant to CPL 330.20 (14) as dangerously mentally ill was filed by the Commissioner in January 1990. In July 1990, however, after a hearing, the application was denied, the court finding on the basis of the psychiatric testimony that although respondent was mentally ill he did not suffer from a dangerous mental disorder.
From July until November 1990, respondent was rehospitalized as a civil patient at South Beach Psychiatric Center. As in his previous hospitalization there, he was diagnosed as a bipolar and treated with lithium. Upon his discharge, respondent went upstate where it was understood that he would live with family members in LeRoy, New York, and receive outpatient treatment at the Genesee Mental Health Center in Batavia. The record is uncontradicted that on November 16, 1990, just four days after his November 12 discharge from South Beach Psychiatric Center, respondent attended the Genesee Mental Health Center and that he kept two subse
On returning to New York City, respondent initially attended the Coney Island/Sheepshead Bay Outpatient Clinic but, dissatisfied with the treatment there, in February 1991 consulted Dr. Neis K. Langsten, the Associate Director of the Metropolitan Hospital outpatient department. Respondent informed Dr. Langsten of the outstanding order of conditions and Dr. Langsten, in turn, ascertained that it would be consistent with the order of conditions for respondent to be treated at the Metropolitan outpatient clinic. Thereafter, respondent was seen by Dr. Langsten and another psychiatrist associated with the Metropolitan clinic at varying intervals over the 17-month period preceding his hospitalization in connection with the within recommitment proceeding. Langsten testified at the hearing held upon the instant application, that when respondent first consulted him in February of 1991, he was taking Tegretol, a medication for the treatment of bipolar illness; the medication, however, had been prescribed by the Genesee clinic in a subtherapeutic dosage, and, in any case, was not in Dr. Langsten’s opinion indicated as respondent did not fit the diagnostic criteria for bipolar illness. Langsten, accordingly, told respondent to discontinue the Tegretol. In Langsten’s view, respondent suffered from attention deficit disorder and cyclothymia, an affective psychiatric disorder, but one of a significantly more mild sort than bipolar illness.
It was not until some six months after respondent’s return to New York City and fully seven months after respondent’s
On August 4, 1992, just three days short of the expiration of the five-year order of conditions which had been in effect since August 7, 1987, the Commissioner purported to apply, yet again, for respondent’s recommitment pursuant to CPL 330.20 (14). The boilerplate recommitment application was accompanied by a cover letter written by Harry C. Huguley, Mental Health Program Specialist, in which Huguley stated that respondent "is currently a patient of South Beach Psychiatric Center”. Appended to the application as well was an affidavit of service executed by Huguley in which he averred that "[o]n the 4th day of August, 1992 [he] served [notice of the recommitment application] upon Francis S., c/o South Beach Psychiatric Center, 777 Seaview Avenue, Staten Island, New York.” Remarkably, the application was also accompanied by an affidavit sworn to by Aristeo Castillo, M.D., a South Beach Psychiatric Center staff psychiatrist, in which Castillo averred that respondent’s "last known address was 510 Harvard Avenue, Baldwin, New York.” Castillo, of course, had supervised respondent’s treatment during his last South Beach Psychiatric Center hospitalization which, as Castillo knew and the Commissioner should have known, ended in November 1990.
Castillo, in the balance of his affidavit, stated that he was familiar with respondent because he had last treated him a year and a half previously. He then set forth the following in support of the recommitment application:
"It is my opinion that the defendant’s clinical diagnosis at that time [November 1990] was bi-polar disorder, manic type.
"5.[sic] It is further my opinion, based on information and belief, that MR. S. (aka S., S.) may presently be suffering from*29 a dangerous mental disorder. I base this opinion on Mr. S.’S (aka S., S.):
"1) History of inpatient psychiatric care which dates to July 1, 1987 and includes admissions to Kirby Forensic, South Beach, and Buffalo Psychiatric Centers.
“2) Arrest on October 22, 1983 in New York City for Attempted Assault 1st Degree which resulted in a Plea of Not Responsible due to Mental Disease or Defect under NY County Indictment #8307-83.
”3) History of persistent non-compliance with the CPL 330.20 Order of Conditions issued subsequent to the above mentioned finding of Not Responsible Due to Mental Disease or Defect on August 7,1987, and revised on July 5, 1990.
"4) Arrest on July 13, 1991 in South Hampton, New York. Annexed to this Affidavit entitled exhibit i is a correspondence from Suffolk County Assistant District attorney Guy Arcidiacono attesting to the above mentioned outstanding criminal proceeding.
”5) Recent arrest on July 6, 1992 in New York, New York. Annexed to this affidavit entitled exhibit ii is a correspondence from New York County Assistant District Attorney Jennifer May Parker attesting to the above mentioned outstanding criminal proceeding.
”6) For the above stated reasons and based on information and belief it is my opinion that MR. S. (aka S., S.) presently constitutes a danger to himself or others and that he requires evaluation and treatment in a secure psychiatric center.” (Emphasis supplied.)
When respondent, never having been served with notice of the recommitment application or with notice of Justice Parness’s order dated August 7, 1992, directing him to appear in response to the application, failed to appear as directed, the Commissioner on August 26, 1992, requested issuance of a bench warrant. Justice Stecher, before whom the warrant application was brought, however, refused issuance of the warrant; as he noted, and as the Assistant Attorney-General was forced to concede, respondent had not been given the statutorily required notice either of the recommitment application or of the hearing scheduled to be held thereon.
The revised recommitment application was made returnable on September 9, 1992, and notice of the application and the need to appear in connection therewith was mailed to respondent’s last known address which, as Castillo had noted in his affidavit accompanying the original application, was 510 Harvard Avenue, Baldwin, New York. On September 8, 1992, however, respondent was arrested in connection with the Central Park incident recounted at some length by the majority (see, majority opn, supra, at 10-11) and when he did not appear on the September 9 return date, Judge Tompkins signed a warrant for his arrest. The warrant was executed the following day in Criminal Court immediately following the dismissal, on the People’s motion, of the criminal charges relating to the July 6 and September 8 incidents. One week later, on September 17, respondent was produced pursuant to the warrant before Judge Lobis who signed an examination order specifically directing that respondent be psychiatrically evaluated at a nonsecure facility. Respondent was accordingly admitted, yet again, to South Beach Psychiatric Center. On October 21, 1992, however, respondent was transported to Kirby Forensic Psychiatric Center, a secure facility, purportedly to attend the recommitment hearing, and simply left there. Although a writ of habeas corpus was filed on November 2, 1992, challenging the transfer as violative of CPL 330.20 (14)
The recommitment hearing commenced before Judge Miller on November 18, 1992, and continued for six additional days over the course of December 1992 and January 1993. In all, 16 witnesses testified and their testimony is now spread out upon a record of over 1,400 pages. Although the length of the hearing was, in part, due to the fact that six psychiatric experts testified, it was also due to the circumstance that the focus of the hearing, purportedly held to determine whether respondent then had a dangerous mental disorder,
The relevance of the evidence of respondent’s prior bad acts depended in the final analysis upon the extent to which there was psychiatric testimony establishing that respondent’s antisocial behavior had, in fact, been caused by a persisting and clinically manifest mental illness.*
Dr. Delfín Ibanez, a staff psychiatrist at South Beach Psychiatric Center, was the first psychiatric expert to testify in support of the Commissioner’s recommitment application.
Dr. Robert Poundstone, a staff psychiatrist at Kirby Foren
Poundstone, whose initial testimony took place on December 16, 1992, was recalled on January 15, 1993, this time as respondent’s witness.
Although Poundstone acknowledged that it would be unusual to commit someone involuntarily to a secure facility for the treatment of attention deficit disorder,
Dr. Erazmo Cruz, director of the Structured Treatment Unit at South Beach Psychiatric Center,
Notwithstanding these rather significant lacunae in his knowledge of respondent, his past treatment and response thereto, Cruz in September of 1992, diagnosed respondent as suffering from "bipolar disorder, manic type, psychotic”. When asked to describe the signs and symptoms of the diagnosed illness, Cruz referred to respondent’s sense of "exaggerated omnipotence”. Also considered diagnostically relevant by Cruz was respondent’s refusal to accept Cruz’s diagnosis, his belief that he did not need to be in the hospital, and his unwillingness to accept antipsychotic medication.
Having so diagnosed respondent, Cruz proceeded, without reference to any even relatively contemporaneous clinical assessments,
"Q. Its your position that in every one of these arrests Mr. S. was in a psychotic manic episode.
"A [Cruz]. I give him the benefit of the doubt as a clinician.
"Q. As a psychiatrist, without having examined him at that time and without having any other psychiatrist examine him at that time you can within a reasonable degree of psychiatric certainty state that he was in a prolonged psychotic manic episode at the time of all those arrests?
"A. Yes. Because I’m on the side of the patient.
"Q. Could you explain that for me?
"A. That I feel for the patient, that he has an illness, that I’m going to determine as much as I can if this is due to a physical problem. If he committed a crime, I would give that credit to him.”
Cruz’s certitude as to the bipolar diagnosis was accompanied by a complete rejection of the attention deficit disorder diagnosis which Dr. Poundstone and each of the three psychiatrists testifying on respondent’s behalf had deemed, at the very least, the more probably correct primary diagnosis. In this connection, Cruz apparently attached no importance to the fact that respondent had been consistently diagnosed since childhood as suffering from attention deficit disorder. Indeed, he stated that the pediatric diagnosis must have been wrong because respondent was too intelligent to have been afflicted since youth with that disorder. He explained:
"A. The hallmark of attention deficit disorder is attention span, meaning the patient is not able to maintain a sufficient amount of attention span to be able to make decisions on school, activities of daily living, etc.
"So this results in the patient not being able to be educated, and because of his attention deficit, being not intelligent or not being able to have average intelligence skills.
"Q. Doctor, again, why is this not applicable to this patient?
"A. Based on the history again, Mr. S. has been involved— to have a project published in Architectural Digest that includes a lot of mathematics, including calculus—a patient with attention deficit disorder will not be able to do that.”25
Cruz’s testimony as to the inefficacy, indeed potential harmfulness, of Cylert is hard enough to understand in light of the contrary clinical evidence available to him at the time he took the witness stand; it is, however, all but incomprehensible in light of the fact that even as Cruz testified, adamantly rejecting the attention deficit disorder diagnosis and criticizing the prescription of Cylert for respondent as contraindicated, respondent, while a patient on Cruz’s own service, continued to
Upon the centrally relevant issue of respondent’s dangerousness, Cruz in his report to the court wrote, and in his testimony affirmed in substance, that "patient’s degree of impulsivity continues to be extremely high. His current level of control is highly volatile, very unpredictable and definitely extremely lacking. Because of this, he is a constant danger to himself and others.” He also stated that respondent required hospitalization in a secure facility because he was a "strong escape risk”. Again, however, Cruz’s views appear to have had little factual much less clinical basis. Dr. Cruz, like Dr. Ibanez before him, was unable to point to even one instance during respondent’s South Beach hospitalization in which the "constantly dangerous” respondent had, in fact, engaged in any kind of dangerous activity. Indeed, as respondent’s primary therapist, Mr. Sargeant, would testify, and as is in any case evident from the hospital record, respondent was accorded full unit privileges by the end of his second week at South Beach, and pursuant to that grant of privileges was entitled to visit designated unsupervised and nonsecure parts of the hospital and its grounds. It would be curious to suppose that these privileges, conferred by unanimous vote of the entire treatment team including, of course, Dr. Cruz, were granted to a constantly dangerous and escape-prone individual.
Respondent called as his first witness Dr. Azariah Eshkenazi. Dr. Eshkenazi, a diplómate of the American Board of Psychiatry and Neurology and an assistant professor of psychiatry at Mount Sinai School of Medicine, possessed considerable experience in forensic psychiatry and special expertise in the treatment of psychiatric patients with alcohol and substance abuse problems.
Although Dr. Eshkenazi diagnosed respondent as suffering from bipolar disorder, he, like Poundstone, was by no means certain that that diagnosis was correct. He had not, on the occasion of any of his examinations of respondent, observed manic symptomatology and noted that respondent remained asymptomatic without the benefit of lithium carbonate, the first-line pharmacological treatment for manic-depressive illness. Conversely, a review of respondent’s medical records indicated that when respondent had been tried on lithium carbonate he had not derived much, if any, benefit from it; lithium treatment would likely have been effective had the underlying problem been manic-depressive illness.
In declining to diagnose and treat respondent as a bipolar, Langsten noted that there was no evidence, either from his own examination or in respondent’s history, that respondent had ever experienced a prolonged manic episode. Rather, Langsten believed respondent suffered from a much more mild affective disorder and from attention deficit hyperactivity disorder. Neither of those relatively benign disorders, however, could in Langsten’s view account for the behavior leading to respondent’s numerous legal entanglements. As had
"I think he’s responsible for his behavior and if he does things that are illegal he should be held responsible for that behavior, and I think it’s compounded the problem that that hasn’t happened, that he has been tangled up with the mental health system, so that somehow that is the alternative to him —if somebody harasses somebody or threatens somebody, that’s illegal and they should be given whatever punishment.
"And that probably is as effective as anything else in eventually having somebody stop doing that. I think it makes it more of a problem that somebody gets sent to mental health and gets put in a hospital, not only that they have indeterminate lengths of stay that aren’t necessarily determined by the offense, but also that in effect it puts him in a position where he is being told he is not responsible for the behavior.”
The last of the psychiatric experts to testify in respondent’s behalf was Dr. Michael Weiner. At the time of his testimony, Weiner, a specialist in forensic psychiatry, was an attending physician on one of Bellevue Hospital’s prison wards and a member of the full-time faculty at the New York University School of Medicine. Citing the lack of any clinical evidence that respondent had ever suffered from prolonged manic episodes
Regarding the conduct which had precipitated respondent’s numerous arrests, Weiner expressed the view that there was no basis to suppose that it was principally attributable to any underlying mental illness, particularly an illness as relatively innocuous as ADHD. There was, on the other hand, substantial evidence indicating that on the occasion of each cited incident respondent had been intoxicated. Weiner stressed that respondent’s intoxication was itself sufficient to account for his antisocial and on some occasions reportedly bizarre behavior and that there had been no connection shown between respondent’s tendency toward drunken unruliness and any psychiatric illness. In this regard Weiner testified: "I have no guarantee that if I’m intoxicated that I’m not dangerous, and I don’t have attention deficit disorder, and I believe that’s of significance. I think if anyone is intoxicated it’s unrelated to a diagnosis of attention deficit disorder and they may or may not be dangerous.”
As to the clinical propriety of an involuntary psychiatric hospitalization for intoxication, much less as a means of avoiding the possibly dangerous consequences of an intoxication whose occurrence was yet a hypothesis, Weiner stated, "[Persons] are not hospitalized for alcohol abuse. Not only alcohol abuse, but not for alcohol dependence, let alone intoxication * * * it is a frequent occurrence in every emergency room across the country, including those in New York, that when someone is intoxicated and demonstrates the behavioral changes of intoxication, until the hospital treating personnel figure exactly whats going on, an individual is often brought
On January 25, 1993, more than two months after the hearing had commenced and some five and one-half months after the filing of the application to recommit respondent for a period of six months, the hearing finally concluded with the court, citing the absence of the statutorily required proof that respondent was currently dangerous (see, GPL 330.20 [14]; [1] [c]), denying the recommitment application. In reaching this determination, the court relied on this Court’s decision in Matter of Torres (People) (166 AD2d 228, affd for reasons stated 78 NY2d 1085), in which we had occasion to stress that within the context of GPL 330.20 a defendant may not be found to suffer from a "dangerous mental disorder” unless there is proof by a preponderance that he " rcurrently constitutes a physical danger to himself or others’ (GPL 330.20 [1] [c])” (Matter of Torres [People], supra, at 230; emphasis added).
Having ruled upon the legal question before her, the court went on with evident frustration to ventilate the opinion that "it is highly likely that whenever Mr. S. is released from the hospital, he will get into trouble again”. Urging, in essence, that this expression of pessimism as to respondent’s prospects as a free man was tantamount to the finding of current dangerousness expressly required by the statute, appellants now contend that they met their burden and that the recommitment application ought to have been granted. Before considering, however, whether the statute’s apparently rigorous substantive standard for recommitment may be read so laxly as to be satisfied by reservations of the sort expressed by the hearing court, it would be well to address respondent’s jurisdictional and constitutional objections to the maintenance of the proceeding; plainly, there would exist no call for interpretation of the statute’s substantive recommitment standards if their invocation was in the first instance either jurisidictionally or constitutionally invalid.
Respondent contends that the Commissioner’s failure to serve him with written notice of the recommitment application within the period of the underlying order of conditions constituted a jurisdictional defect requiring dismissal of the application. The Commissioner and District Attorney respond that GPL 330.20 (14) requires no more than that the applica
While it is, of course, true that CPL 330.20 (14) does not expressly require that notice of a recommitment application be served upon a defendant within any specified time period, it may be fairly inferred that the Legislature intended that a defendant be afforded notice of a recommitment application either prior to the filing of the application with the court or shortly thereafter and in any case with a degree of expedition appropriate to the nature of the applicant’s underlying claim, namely, that there is a dangerously mentally ill individual at large in immediate need of recommitment at a secure psychiatric facility.
Notwithstanding the inevitable urgency of the claim made by an applicant for recommitment, it is plain as a matter of due process that until a defendant has been served with the required notice of the recommitment application, the court will be powerless to adjudicate whether the application should be granted. The mere filing of the recommitment application, then; unaccompanied by attention to the statutory notice requirements, amounts to little more than an idle gesture; it is by itself meaningless to secure the obvious statutory objective of a prompt determination of whether an individual allegedly dangerous by reason of mental illness should be recommitted. This being the case, it must be supposed that the Legislature, while omitting to specify a time frame within which service on the defendant was to be made, fully intended that it be made in close temporal proximity to the application or at all events with reasonable expedition. Indeed, the statute apparently assumes that service upon the defendant will be practically contemporaneous with the filing of the application for it requires the court "[u]pon receipt of such application” (CPL 330.20 [14]) to order the defendant’s appearance for a hearing thereon. Obviously, it would be useless to order the
The utter inutility of filing a recommitment application with the court without also effecting the reasonably contemporaneous fulfillment of . the statutory notice requirements was, of course, not lost upon the Commissioner, who despite his present arguments to the effect that it was entirely appropriate to serve the respondent at a time remote from the application’s filing, did, in fact, represent to the court at the time of the instant recommitment application’s filing that respondent had already been served. Of course, as was subsequently conceded, the Commissioner’s representations that respondent had been served, and more particularly that he had been served at South Beach Psychiatric Center where he was a patient, were false; and it was not until August 28, 1992, three weeks after the expiration of respondent’s order of conditions, that notice of the application and of the court order directing respondent’s appearance in response thereto were finally mailed to respondent at his 510 Harvard Avenue address in Baldwin, New York.
The jurisdictional difficulty in this case arises not simply from the fact that the service upon the respondent was inexplicably delayed, but from the additional circumstance that it was delayed beyond the termination of the five-year order of conditions to which respondent was subject. In requiring that an application for recommitment be filed within the period of an outstanding order of conditions (see, CPL 330.20 [14]), the Legislature’s purpose was not merely to place a limitation upon when a recommitment application could be filed but, by that device, effectively to assure that adjudication of the application would not be unreasonably delayed beyond the period covered by the order of conditions. As noted, the statute contemplates that once the application is filed with the court a hearing will be immediately scheduled and thus assumes that neither the scheduling of the hearing nor the statutorily required court order directing the defendant’s appearance therefor will be rendered futile by the applicant’s delay in complying with the statutory notice requirements. As the hearing is intended to follow closely upon the application and the application is to be filed prior to the termination of the applicable order of conditions, it follows that timely filing should, and was obviously intended to have the consequence of assuring that the application’s adjudication would commence either within the five-year duration of the underlying order of
An order of conditions good for an initial period of five years may be extended for good cause shown for an additional five years (CPL 330.20 [1] [o]). However, once the order of conditions, never having been extended, has expired more than five years after an insanity acquittal and an even longer time subsequent to the conduct for which the acquittee was prosecuted, and, as noted, after an intervening finding that the defendant is no longer dangerously mentally ill, the justification for subjecting an insanity acquittee allegedly in need of inpatient psychiatric care to the extraordinary recommitment
Unless we wish to countenance the obviously unacceptable eventuality that months or even years after the expiration of an order of conditions a defendant may be hailed into court to respond to an application seeking recommitment upon the allegation that at some point during the duration of the since expired order he or she suffered from a dangerous mental disorder, it would be well to recognize that the limitations period contained in the statute amounts to more than just a filing deadline; that viewed in the relevant constitutional context and taken in conjunction with the applicant’s undoubted obligation diligently to prosecute its application it should function and be understood to impose some outer limit upon the time within which the power of the court to recommit pursuant to CPL 330.20 may be exercised.
There will, of course, be situations in which the determination of an application timely filed and diligently prosecuted will extend past the expiration of the applicable order of conditions and in such a case it is clear that the court’s authority under the statute to entertain the application ought not to be affected. This, however, is not such a case. The present proceeding, which extended well beyond the expiration of the underlying order of conditions, was significantly and inexcusably delayed by the Commissioner’s repeated failure properly to serve respondent in accordance with the statute. Although the majority insists that the Commissioner "attempted service at S.’s last known address” it is plain from the face of the application itself that nothing of the sort occurred. The recommitment application indicates quite clearly that respondent’s last known address was 510 Harvard Avenue, Baldwin, New York. Indeed, as noted, the affidavit of Dr. Castillo, included as a necessary part of the recommitment application (see, CPL 330.20 [20]), states prominently in its third paragraph, "I submit this affidavit in support of the Commissioner’s application for Recommitment pursuant to CPL 330.20 (14) of frangís s. * * * whose last known address was 510 Harvard Avenue, Baldwin, New York” (emphasis added). The obvious availability of this address notwithstanding, no attempt was made to serve respondent there. Instead, the Commissioner purported to serve respondent at South Beach Psychiatric Center. Yet, as even a cursory examination
Given this record of gross indiligence in the performance of the applicant’s basic notice obligations prerequisite to the
Another ground upon which the court ought to have declined to entertain the application for respondent’s recommitment was the Commissioner’s failure to submit along with his application a legally sufficient psychiatric examiner’s affidavit supportive of the relief requested. CPL 330.20 (20) provides that "[n]o application may be made by the commissioner under this section without an accompanying affidavit from at least one psychiatric examiner supportive of relief requested in the application.” The availability of the relief requested in the instant recommitment application, and indeed in any such application, entails a showing by the applicant that the defendant suffers from a "dangerous mental disorder” (CPL 330.20 [14]), which is to say that the defendant "currently suffers from a 'mental illness’ as that term is defined in subdivision twenty of section 1.03 of the mental hygiene law,[
The affidavit of Dr. Castillo submitted in support of the instant recommitment application (see, supra, at 28-29) was plainly deficient. Completely absent from the affidavit was any reasonably current clinical information, much less any supportive of the applicant’s essential claim that respondent currently suffered from a dangerous mental disorder. As Castillo acknowledged in the affidavit, he had not at the time of the affidavit’s execution in August 1992 examined respondent for more than one and a half years, and thus was able to affirm only that, as of November of 1990, respondent had been diagnosed as suffering from bipolar disorder. Understandably, given his lack of any reasonably recent clinical contact with respondent, Castillo could not and consequently did not provide anything resembling the required "detailed analysis of
In professing deep satisfaction with the Castillo affidavit, the People and majority not only ignore the very explicit requirements of the statute, but display remarkable shortsightedness. A sufficient supporting affidavit by a psychiatric examiner is required for every application made pursuant to CPL 330.20, and not all CPL 330.20 applications seek the imposition of additional restrictions on insanity acquittees. Many seek the transfer of CPL 330.20 defendants from secure to nonsecure facilities and permission to place them in progressively less restrictive circumstances of confinement leading to release and finally discharge. Presumably, the People would be the first to object to and demand the dismissal of a CPL 330.20 release application accompanied by an affidavit devoid of any reasonably current clinical information. Indeed, is it really possible that we would consider the merits of a discharge or release application accompanied by an affidavit made by a psychiatrist who, not having examined the defendant in 21 months, could provide no information respecting the defendant’s current mental status and could state only that there might be clinical grounds for the relief requested? I think my colleagues know what the answer to this query is.
Contrary to the suggestion of appellants that there may be some basis to relax CPL 330.20 (20)’s requirements in the context of a recommitment application where the defendant at the time of the application is at large, the statute makes no such dispensation; it establishes a uniform standard for supporting psychiatric affidavits, requiring, as it should, that any proposed change in an insanity acquittee’s status within the CPL 330.20 framework be clinically supported from the outset. In so doing, it properly declines, at least in this respect, to exalt public safety concerns above the liberty interests of defendants. Both require protection. Neither set of interests, however, will receive the measure of protection which is its due if the majority’s decision as to the sufficiency of the subject affidavit is permitted to stand; for what the majority must be understood to hold is that courts will entertain any CPL 330.20 application, whether for recommitment or release back to the community, regardless of whether the applicant has made the required initial showing of clinical justification. While this may not, in all cases, ultimately result in unwarranted recommitments and releases, it does remove an important check upon such outcomes and has the additional unfor
In light of the foregoing, it should be plain that appellants’ reliance on People ex rel. Thorpe v Von Holden (63 NY2d 546) to excuse the careless and dilatory prosecution of their recommitment application is singularly misplaced. It is true, of course, that in Thorpe, a habeas corpus proceeding, the Court of Appeals only conditionally ordered the petitioner’s release even though the Commissioner had failed to comply with the statutory timetable for the commencement of retention proceedings pursuant to CPL 330.20 (8) (People ex rel. Thorpe v Von Holden, supra, at 555). In making its order of release conditional, however, the Court noted that the psychiatric affidavits filed in support of retention adequately documented the clinical predicate for the relief requested. Thorpe, it appeared, had beaten his first wife to death with a hammer and had assaulted his second wife with a rifle butt, and, following the verdict acquitting him of assault in the second degree by reason of mental disease or defect, had been continuously in the Commissioner’s custody never having been found to have regained his sanity or to have become nondangerous. Indeed, the examining psychiatrists noted in their affidavits that he remained suspicious of, and hostile toward, his second wife and had threatened to " 'get rid of her’ ” (supra, at 550-552). The Court of Appeals, then, based its determination to afford the Commissioner a final opportunity to retain Thorpe, pursuant to CPL 330.20 (8), upon the evident sufficiency of the retention predicate made out in the supporting affidavits. As should be clear, no comparably sufficient clinical predicate was presented in support of the within recommitment application. Indeed, far from constituting a ground upon which the recommitment application might have been saved, the predicate offered in the Castillo affidavit was so palpably deficient as to mandate the application’s dismissal pursuant to CPL 330.20 (20).
Respondent, of course, moved for dismissal of the August 4, 1992 recommitment application on the above-discussed jurisdictional grounds, and that motion ought to have been
This is not the first occasion upon which this Court has addressed the constitutionality of CPL 330.20 (14). In People v Stone (138 AD2d 4), Justice Asch, in a majority opinion to which I subscribed, expressed the view that the subject recommitment statute, if read to permit the recommitment of an insanity acquittee who, since his acquittal, had been adjudged no longer dangerous, would be violative of constitutional due process and equal protection guarantees. "A criminal act”, wrote Justice Asch, "cannot forever after affect and prejudice an acquittee’s right to equal treatment vis-á-vis a person committed in a civil proceeding. Future confinement of the
Whatever the state of the trial record may have been in Stone (supra), it is clear that the constitutional issues have been emphatically preserved in the present trial record and, that they were exhaustively briefed and argued before us and accordingly, that there exists no procedural or, given the majority’s resolution of the jurisdictional issues, prudential impediment to their consideration.
In Addington v Texas (441 US 418, 425), the Supreme Court reiterated the axiomatic proposition that "commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection”; and, having already established in O’Connor v Donaldson (422 US 563, 574), that, substantively, due process entails a "constitutionally adequate purpose for the confinement”, went on to hold that, procedurally, "due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence” (Addington v Texas, supra, at 427). The Addington Court concluded that a proper allocation of the risks of unjustified psychiatric confinement as between the individual whose confinement was sought, and the State required, that the State make out the case for confinement by clear and convincing evidence.
In accordance with these constitutional precedents, we have in this State promulgated a body of civil law designed to assure that no person will be involuntarily committed to a
In People ex rel. Henig v Commissioner of Mental Hygiene (43 NY2d 334), the Court of Appeals had occasion to consider the constitutionality of the automatic postverdict commitment provisions contained in CPL 330.20 prior to its amendment in 1980. In upholding the constitutionality of those provisions permitting the initial postverdict commitment of an insanity acquittee without a hearing and without a prior determination as to whether the acquittee was, at the time of the commitment, dangerously mentally ill, the Court noted its view that there existed in the limited context of a dispositional determination directly following the verdict a rational basis to afford the liberty interests of insanity acquittees a lesser measure of procedural protection than would otherwise be constitutionally acceptable: "An individual who has committed an act of violence, and has thus demonstrated his dangerousness, and who has successfully asserted an insanity defense, may quite properly be treated somewhat differently from other individuals who, although they may in fact be potentially equally dangerous as a result of mental problems, have not yet so vehemently demonstrated their dangerousness by violent antisocial behavior” (supra, at 338). The Court reasoned that the antisocial conduct claimed by the acquittee himself to have been the consequence of insanity raised a presumption of continuing dangerous mental illness itself adequate to sustain commitment directly following a not responsible verdict. Having so held, however, the Court was
In July of 1979, some one and a half years after Henig (supra), the Court of Appeals handed down its decision in Matter of Torsney (47 NY2d 667). Torsney, of course, concerned the adjudication of an application to release an insanity acquittee, Torsney, from the Commissioner’s custody, which application came barely more than half a year after the verdict absolving Torsney of criminal responsibility for the fatal shooting of a teenager. Although the hearing court granted the application to the extent of ordering Torsney conditionally released, the Appellate Division, Second Department, reversed, finding, as is here relevant, that "[a] dangerous detainee [can] be confined even if not mentally ill or in need of immediate treatment, under CPL 330.20” (66 AD2d 281, 288, n 6). The Court of Appeals disagreed, reversed the Appellate Division and reinstated the hearing court’s determination (47 NY2d, supra, at 684). In so doing, the Court held that the presumption upon which the disparate treatment challenged in Henig had been found permissible would not sustain a disparity of the sort the Appellate Division had approved—that insanity acquittees no less than those committed via the civil commitment laws were entitled to release unless their commitment was justified by a showing of both a present mental illness requiring inpatient care and consequent dangerousness (Matter of Torsney, supra, at 675).
Regarding the nature and limits of the presumption relied upon in Henig (supra), the plurality in Torsney
"Of course, the flaw in viewing this principle as a true presumption is readily apparent: namely, the possibility that years may have intervened between commission of the crime charged and the date of acquittal.[37 ] * * *
"Thus, it may be said more accurately that the presumption flowing from an acquittal by reason of mental disease or defect does not presume that a person so acquitted presently suffers from mental disease or defect, but, rather, posits merely that having raised this defense and having previously engaged in antisocial behavior, he has demonstrated sufficient grounds for further examination to determine his present need for treatment and confinement as opposed to immediate release. [Citation omitted.] It is for this purpose only—a prompt examination and report as to sanity—that such a person may be automatically committed to the custody of the Commissioner of Mental Hygiene upon acquittal. [Citations omitted.] * * *
"Beyond automatic commitment of persons found not guilty by reason of mental disease or defect for a reasonable period to determine their present sanity, justification for distinctions in treatment between persons involuntarily committed under the Mental Hygiene Law and persons committed under CPL 330.20
As can be seen, to the extent that Henig (supra) left any question as to the precise significance and duration of the presumption upon which it had relied, the matter was clarified by Torsney (supra), which held unambiguously that the presumption, far from affording an open-ended basis for denying insanity acquittees the procedural and substantive protections of the Mental Hygiene Law, would justify only a brief postverdict confinement for the limited purpose of determining whether the acquittee remained dangerously mentally ill. The unmistakable import of Torsney is that at the conclusion of the prompt postverdict sanity hearing required by Henig, the acquittee must either be committed pursuant to procedures and substantive standards consonant with the Mental Hygiene Law or released; or, in other words, that following the postverdict sanity determination there exists no further predicate justifying the disparate treatment of insanity acquit-tees, even those found to be in need of continued inpatient care and treatment.
Torsney (supra) was, of course, a controversial decision as, legal questions aside, there was a wide public perception that if indeed Torsney’s acquittal for the point-blank shooting of a young person had been justified—and many believed it had not been—the nonpenal consequences stemming from the homicide and the defendant’s claim of insanity in connection therewith were neither sufficiently serious nor prolonged. One year after Torsney, the Legislature enacted the Insanity Defense Reform Act of 1980, comprehensively amending CPL 330.20 (L 1980, ch 548), and while the amendments were in some respects responsive to the constitutional concerns expressed by the Torsney majority, it is clear that the primary purpose of the legislation was to provide within CPL 330.20 a comprehensive postverdict supervisory apparatus which would closely govern the terms of the commitment and release of insanity acquittees for as long as 10 years after the initial postacquittal sanity hearing.
The extent to which the 1980 amendments to CPL 330.20 displaced the Mental Hygiene Law and in so doing prescribed for insanity acquittees a distinct alternative body of law, the over-all effect of which was to make their commitment easier and their release more difficult, only became fully apparent after the Court of Appeals decision in Stone (supra). For what Stone held was that, notwithstanding the statute’s apparent
Appreciation of the full import of the holding in Stone (supra) entails recognition of the fact that a CPL 330.20 (14) recommitment is distinctly different in its procedures and consequences than an involuntary commitment pursuant to the Mental Hygiene Law. Although the substantive commitment standards found in CPL 330.20 (14) are not substantially different from those found in Mental Hygiene Law § 9.39, it is urged, and for present purposes may be conceded (see, infra, n 38), that recommitment pursuant to CPL 330.20 (14) may be obtained upon a less weighty showing than would be required in support of an involuntary civil commitment; the civil commitment due process requirement of clear and convincing evidence that the proposed committee is dangerously mentally ill (see, Addington v Texas, supra, at 425) is, according to the State and the People, relaxed in the CPL 330.20 context to permit recommitment upon a showing of dangerous mental illness by a mere preponderance of the evidence (see, People v Escobar, 61 NY2d 431, 457-458).
Once a finding of dangerous mental illness is made pursuant
As can be seen, CPL 330.20’s recommitment scheme constitutes a dramatic displacement of the civil commitment laws pursuant to which an insanity acquittee may, years after the criminal conduct culminating in his or her insanity acquittal, be committed and retained with an ease altogether alien to the civil commitment laws otherwise governing the involuntary confinement and retention of persons dangerously mentally ill. That such a displacement cannot be reconciled with Torsney (supra) is clear, for with CPL 330.20 we have a marked disparity in the treatment of insanity acquittees not terminating at the initial postacquittal sanity hearing or even at the conclusion of any continuous period of secure psychiatric hospitalization following thereupon, but persisting beyond the finding that the acquittee is no longer dangerous and indeed beyond the acquittee’s release from institutional care, to proceedings for recommitment possibly separated from the original criminal conduct by more than a decade and, conceivably, if the People’s and State’s jurisidictional claims are to be accepted, by an even longer time. To the extent that the Legislature in enacting the Insanity Defense Reform Act of 1980 sought to assure that an insanity acquittal would have substantial and prolonged consequences of a nominally nonpenal sort, it is clear that it succeeded, perhaps beyond its expectations. To the extent, however, that the Legislature attempted to bring about this result without violating the due process and equal protection rights of insanity acquittees, it is clear that it failed. Indeed, given Torsney’s pronouncement that "[b]eyond automatic commitment of persons found not guilty by reason of mental disease or defect for a reasonable period to determine their present sanity, justification for distinctions in treatment between persons involuntarily committed under the Mental Hygiene Law and persons committed under CPL 330.20 draws impermissibly thin” (Matter of Torsney, supra, at 674-675), the recommitment provisions of the Insanity Defense Reform Act of 1980 were at the time of their enactment a virtual invitation to constitutional invalidation.
It is true, of course, as the People and State point out, that since the Court of Appeals decision in Torsney (supra) and the
Having noted what was decided in Jones (supra), it is important, especially in light of appellants’ rather extravagant claims as to its import, to underscore what Jones did not
The due process analysis in Foucha (supra) is of crucial importance to the disposition of the issues before us, for that analysis demonstratés with consummate clarity that the Supreme Court not only viewed the Jones holding (supra) as articulating the minimum constitutional predicate necessary to sustain psychiatric confinement following an insanity acquittal, but also as delineating the furthest extent to which the inference of continuing dangerous insanity, permissibly drawn from the judgment of acquittal, might be taken in justification of any disparity in the treatment of insanity acquittees. The Court observed,
"In this case, Louisiana does not contend that Foucha was mentally ill at the time of the trial court’s hearing. Thus, the basis for holding Foucha in a psychiatric facility as an insanity acquittee has disappeared, and the State is no longer entitled to hold him on that basis. O’Connor, supra, 422 U.S., at 574-575 * * *
*67 "The State, however, seeks to perpetuate Foucha’s confinement at Feliciana on the basis of his antisocial personality which, as evidenced by his conduct at the facility, the court found rendered him a danger to himself or others. There are at least three difficulties with this position. First, even if his continued confinement were constitutionally permissible, keeping Foucha against his will in a mental institution is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness” (Foucha v Louisiana, 504 US, supra, at —, 112 S Ct, supra, at 1784; emphasis added).
This basic point, namely, that an insanity acquittee whose psychiatric confinement is no longer permissible pursuant to the substantive due process standards set forth in Jones (supra), is on the occasion of any subsequent psychiatric hospitalization (except, of course, one resulting from a subsequent insanity acquittal) entitled to be treated in the same manner as a candidate for civil commitment, would be reiterated in the course of the ensuing opinion. Indeed, the Court stated, "if Foucha can no longer be held as an insanity acquittee in a mental hospital, he is entitled to constitutionally adequate procedures to establish the grounds for his confinement” (504 US, supra, at —, 112 S Ct, supra, at 1785), and left no doubt that by "constitutionally adequate procedures” it meant the procedures required by due process to be utilized in civil commitment proceedings. In this connection, the Court indicated that there was no relevant distinction to be drawn between an insanity acquittee no longer confinable as such pursuant to Jones and a defendant incompetent to stand trial already hospitalized long enough to determine whether he or she could be cured or rendered competent, or, for that matter, between either of the aforementioned and a mentally ill convict nearing the end of a penal term. In each case subsequent involuntary psychiatric confinement was permissible only if obtained by means of civil commitment laws complying with the applicable constitutional due process requirements (Foucha v Louisiana, 504 US, supra, at —, 112 S Ct, supra, at 1785, citing Jackson v Indiana, 406 US 715, 724; Baxstrom v Herold, 383 US 107, 111-112). Further underscoring the essential proposition that an insanity acquittee no longer committable as such under Jones could not be subsequently recommitted except as a civil committee, was the Court’s observation that if indeed Foucha was to be recommitted, the State would have to prove by clear and convincing
Plainly then, when the holding in Jones (supra) is viewed through the sharply defining lens of Foucha (supra), the outer boundaries of permissible disparity in the State’s treatment of insanity acquittees are thrown into vivid relief. While the extent of permissible disparate treatment in the period between the judgment of acquittal and the failure of either of the substantive conditions necessary under Jones to justify continued psychiatric commitment of an insanity acquittee remains in some respects less well defined (see, Jones v United States, supra, at 363, n 11), there can be no doubt that subsequent to the failure of one of those conditions disparate treatment of insanity acquittees—even those again dangerously afflicted with psychiatric illness and therefore in need of rehospitalization—must cease. Thus, while Escobar’s relaxation of the clear and convincing evidentiary burden in the context of CPL 330.20 commitment and retention proceedings may be permissible pursuant to Jones,
As can be seen, while Torsney (supra) may have too narrowly defined the range of constitutionally tolerable disparity in the treatment of insanity acquittees, its essential recognition that there was a point beyond which disparate treatment could not extend without violating fundamental principles of due process and equal protection has been amply confirmed. Under the Federal Constitution that point is certainly met once it is determined that an insanity acquittee has either recovered his or her sanity or is no longer dangerous. This being the case, it should be absolutely clear that the recommitment provisions of the Insanity Defense Reform Act of 1980 are unconstitutional. As noted, those provisions perpetuate the disparate treatment of insanity acquittees well beyond the remission of dangerous mental illness and indeed beyond the release of the acquittee back to society, to permit rehospitalization on terms considerably at variance with those governing involuntary civil commitment. Indeed, the effect of the subject recommitment provisions is, in the case of an insanity acquittee afflicted with a recurrence of dangerous mental illness, to require, for as long as 10 years after the constitutionally critical finding of remission, the recapitulation of CPL 330.20’s entire postacquittal commitment scheme which, as we have already had occasion to observe, is specifically designed to make commitment and retention easier, the conditions of hospitalization more restrictive, and release more difficult than would be the case in the civil commitment context. After Foucha (supra) there quite simply is no argument that so massive a displacement of the civil commitment laws at a point subsequent to a finding as to an acquittee’s remission from dangerous mental illness is constitutionally tolerable.
It should be stressed that the constitutionally objectionable disparity here addressed is not neatly confined to the area of evidentiary burdens, and cannot be remedied simply by reallocating those burdens to conform with Addington (supra). Rather, the objectionable disparity pervades the whole of the CPL 330.20 recommitment scheme and can be remedied only by such measures as will assure that the recommitment of an insanity acquittee will be governed by laws substantially identical to those applicable in the civil commitment arena. As Jones (supra) and Foucha (supra) implicitly recognize, there
There has, in fact, never been any particularly persuasive rationale advanced for treating insanity acquittees differently from other candidates for involuntary psychiatric commitment. A judgment of acquittal on any ground, including insanity, removes from the State any justification for imposing punishment (Jones v United States, supra, at 369). If, then, the State after an acquittal seeks to commit the acquittee, it may not do so for reasons of a penal sort but solely to treat the acquittee and protect society. The permissible substantive grounds for involuntary psychiatric hospitalization are thüs no different when the State confines an insanity acquittee than when it confines anyone else. It is only procedurally that the insanity acquittee stands in a somewhat different relation to the State than a candidate for civil commitment. This is because the acquittee in obtaining the judgment of acquittal has himself only recently claimed to have been insane at the time of the otherwise proven offense. Given the provenance of the claim and the fact that the claim was deemed to possess sufficient probative force to relieve the defendant of criminal responsibility for antisocial acts proven beyond a reasonable doubt, it has been held reasonable to relieve the State in the immediate aftermath of the acquittal of the obligation of litigating anew the issues of the acquittee’s sanity and dangerousness. It should be stressed that this dispensation arises not because insanity acquittees are, as a group, clinically different from other dangerously mentally ill persons; for notwithstanding the observation in Henig (supra, at 338) that insanity acquittees more "vehemently demonstrated their dangerousness”, it is clear that anyone duly admitted to a psychiatric unit under the civil commitment laws for emergency observation, care and treatment has in some manner made a most vehement demonstration of his or her dangerousness.
It is only if the within proceeding is not to be dismissed on either jurisdictional or constitutional grounds that appellants’ invitation to this Court to rewrite CPL 330.20 (14) need be considered. The standard for recommitment pursuant to that statute bears repetition: required is (1) a showing by the applicant that the defendant "currently suffers from a 'mental illness’ as that term is defined in subdivision twenty of section 1.03 of the Mental Hygiene Law”, which subdivision defines mental illness as "an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation”; and (2) an additional showing by the applicant "that because of such condition [the defendant] currently constitutes a physical danger to himself or others” (CPL 330.20 [1] [c] [defining "dangerous mental disorder”]; emphasis added). It is virtually conceded on the above-summarized record that at the time of respondent’s hearing he was largely asymptomatic and, in any case, did not constitute a physical danger to anyone. Indeed, the Assistant Attorney-General stated at the hearing that "the state has conceded that in the hospital the doctors testify he [respondent] is in remission, partial remission, and he’s a good patient.” Properly understood then, the State’s contention was not, and given the proof, could not have been that respondent suffered from a current, seriously symptomatic mental illness which rendered him physically dangerous, but that, based on respondent’s history, there was a likelihood that, if released, he would at some future time become dangerous. Appellants thus urge
The defendant in Torres (supra) had killed a man and was thereafter acquitted of second degree murder by reason of insanity. Following the acquittal, he was remanded to the custody of the Commissioner of Mental Health and, in light of findings as to his continuing dangerousness, remained securely hospitalized for some nine years. Toward the end of this period, an application was made by the Commissioner to transfer Torres to a nonsecure facility on the ground that he was no longer dangerously mentally ill. It appears that Torres, who bore the diagnosis of paranoid schizophrenia during his entire postacquittal hospitalization, had gone into remission after being medicated against his will with an antipsychotic agent, and had improved to the point that the Commissioner deemed the transfer application appropriate. During the pendency of the application, however, Torres briefly decompensated leading to the application’s withdrawal. Indeed, Dr. Klebanov, Torres’ treating psychiatrist, would testily at the hearing upon the subsequent application to retain Torres at a secure psychiatric facility, that Torres did not have sufficient insight respecting his illness to be safely transferred to a nonsecure facility. Klebanov predicted that Torres would discontinue his medication and thereafter become dangerously psychotic. In his written report in support of the retention application Klebanov stated that while hospitalized Torres had been involved in a number of violent incidents, one of which was quite recent; that Torres remained extremely paranoid; and that Torres had been poorly compliant with his medication regimen. Notwithstanding all of this, this Court affirmed the decision of the hearing court to transfer Torres, doing so in reliance upon testimony by a court-
Plainly, if it were permissible in ruling upon the propriety of secure psychiatric commitment pursuant to CPL 330.20 to substitute a prognostication of future dangerousness for a finding of current dangerousness, Torres (supra) would have been decided differently. It was, after all, undisputed that Torres had killed another person while psychotic and that he continued to suffer from the same underlying mental illness that had caused him to become psychotic at the time of the homicide. It was, moreover, clear that Torres’ condition had improved only when he was forced to take antipsychotic medication, and that, demonstrably, without the medication he would relapse into psychosis. Nevertheless, this Court held that because Torres was not currently dangerous he could not be retained in a secure psychiatric facility pursuant to CPL 330.20.
The within matter presents, if anything, a very much weaker case for secure psychiatric hospitalization. For here, not only is it conceded that respondent was not at the time of his hearing dangerous, but, in contrast to Torres (supra), where there was compelling and undisputed evidence of a very serious and potentially extremely dangerous underlying psychiatric disorder, there was in the present case little or no proof competently attributing respondent’s relatively petty antisocial behavior to a psychiatric disorder of even remotely comparable dangerousness. Indeed, there remains considerable doubt as to whether respondent was even at the time of the 1983 assault for which he was eventually acquitted by reason of insanity, really insane. The record provides no indication
There is, in any case, apart from the 1983 incident, no other occasion on which respondent’s misbehavior has been even somewhat reliably linked to dangerous mental illness. Notwithstanding the testimony respecting respondent’s histrionics on the occasion of some of his arrests, it is clear that he was never thought an appropriate candidate for psychiatric evaluation and that he was invariably routinely processed through the criminal justice system. He was, moreover, in several of the cited incidents, convicted, albeit of relatively minor crimes, and incarcerated. While the conduct for which respondent was successfully prosecuted and punished was not admirable, neither can it be fairly regarded as indicative of anything but recidivist criminality. As for the remaining incidents, the credible proof at the hearing simply did not establish that the objectionable conduct had been the product of any serious underlying mental disorder. Indeed, based on the evidence adduced at the hearing, the only potentially dangerous psychiatric disorder respondent could have had was manic-depressive illness. But the weight of the evidence was clearly that respondent probably had never suffered from manic-depressive illness and that even if he had, that that disorder was not what had caused him repeatedly to misbehave. Although Dr. Poundstone did in his initial testimony
It is apparent that in the absence of any sound clinical basis for the diagnosis they espoused, Doctors Ibanez and Cruz resorted simply to insisting that their diagnosis was correct
Contrary to the testimony of Cruz and Ibanez, it was quite evident by the conclusion of the hearing that respondent most probably suffered from no more serious an underlying psychiatric disorder than attention deficit hyperactivity disorder. None of the remaining four psychiatric experts had, after careful diagnostic evaluation, found any direct clinical or historical evidence of prolonged manic episodes; all noted that respondent had not been responsive to lithium and that he remained clinically clear of major bipolar symptoms without lithium. And, it had additionally been established through the testimony of Dr. Poundstone that respondent had shown improvement while medicated with Cylert, a drug from which he would not have benefitted and which might in fact have been detrimental to him had the attention deficit hyperactivity diagnosis been incorrect.
Attention deficit disorder, however, is not a dangerous mental disorder. Indeed, not one of the psychiatric experts had ever previously seen a patient hospitalized for its treatment much less confined to a secure psychiatric facility. Nor was there evidence that respondent had suffered from so severe a case of the otherwise relatively benign disorder as to render credible the hypothesis, never seriously pursued, that respondent had committed all of his offensive acts under its sway. Rather, the credible evidence established overwhelmingly that the precipitant of respondent’s antisocial behavior was alcohol and drug abuse.
On the present record, this Court is being asked to sanction the confinement of an individual to a secure psychiatric facility not, as the statute provides, because he is currently mentally ill and physically dangerous by reason of that illness, but because like many other people who tolerate drugs
The prospect, however likely, that a person free of major psychiatric symptomatology may at some point take a drink and become dangerous is not a constitutionally adequate basis for involuntary psychiatric hospitalization much less for confinement to a secure psychiatric hospital. What the majority has done, perhaps unwittingly in this case, in which a vindictive response to a person who has repeatedly acted in a socially irresponsible fashion may seem deeply satisfying and popular, is to embrace with open arms the concept of preventive detention. The use of involuntary psychiatric confinement to protect society from a person who, although in remission from psychiatric illness, remains dangerous has been soundly rejected by the Supreme Court in Foucha (supra) as violative of due process and equal protection. As the Foucha Court reiterated, "[d]ue process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed [citations omitted]” (Foucha v Louisiana, 504 US, supra, at —, 112 S Ct, supra, at 1785). Thus, a person like Foucha or like respondent whose psychiatric illness has gone into remission and who no longer manifests symptoms of a major psychiatric illness the treatment of which in an inpatient setting is either necessary or even medically advisable, cannot be held against his or her will in a psychiatric hospital. This is true even if, like Foucha, the individual remains dangerous. It is all the more true if, as is the case with respondent, the individual is not presently dangerous but there is merely a prospect that he or she will become dangerous. In either case a mere propensity, however well demonstrated, for antisocial conduct is not a sufficient constitutional predicate for forcible psychiatric commitment. As was aptly noted in Torsney (47 NY2d, supra, at 683), "[w]hatever its label, confinement on a showing of mere propensity amounts to nothing more than preventive detention, a concept foreign to our constitutional order [citations omitted].”
While appellants will doubtless protest that Foucha was not mentally ill whereas respondent is, it is clear that neither defendant was mentally ill in a constitutionally significant sense. Plainly, both suffered from some underlying psychiatric and psychological disorders. Neither, however, was shown to suffer from any presently symptomatic major psychiatric disorder for which inpatient treatment was necessary or even
The majority’s determination to trifle with respondent’s constitutionally and, indeed, statutorily protected liberty interest would be most unfortunate in any case but is particularly so in the context of the present litigation, for it should be clear that this case presents no occasion for tinkering with the statute’s very clear substantive standards for commitment to a secure psychiatric facility. It is only by virtually ignoring respondent’s plainly meritorious jurisdictional claims and, in so doing, sanctioning an application of the statute which not even the statute by its terms can be reasonably read to permit, and by similarly ignoring respondent’s plainly meritorious constitutional challenge, that the majority manages to immerse itself directly in the judicial revision of the statute’s commitment standards. Even if the result of this foray was not to render the statute even more violative of due process and equal protection than the Legislature had already made it, it would constitute an extremely imprudent use of judicial power. The revision of this statute or any other is the work of the Legislature, not the courts.
Undoubtedly, it appears to my colleagues that, constitutional and jurisprudential considerations aside, the revision it would effect is most sensible as a matter of public policy; that it will help rid the streets of potentially dangerous substance abusers. The revision of CPL 330.20, however, cannot but have the most miniscule such result since the statute applies only to insanity acquittees who constitute but a tiny fraction of the population of alcohol and substance abusers. But even if, as is suggested, involuntary psychiatric commitment standards may be generally relaxed to commit, without more, those with a demonstrated propensity to drug- and alcohol-induced misbehavior, it would be well to consider carefully whether such a relaxation would pay the societal dividends the majority apparently anticipates. The outcome of such a relaxation would undoubtedly be to turn our psychiatric hospitals into large detention centers for persons who, although suffering from no psychiatric illness requiring inpatient care, had repeatedly committed crimes and other antisocial acts while intoxicated
If respondent commits crimes, he should be prosecuted and penalized; it is, in this connection, nowhere explained why respondent has not been more vigorously prosecuted for the crimes with which he has been intermittently charged. It does no good to complain, as do appellants, that respondent is a "master of manipulation”, a veritable Moriarty, eluding penal sanction at every turn, when respondent’s not responsible plea was accepted, apparently without contest, and criminal charges against him have frequently gone unpursued, more than once at the People’s election. If, on the other hand, respondent is mentally ill and in some measure dangerous, he can be civilly committed. What cannot be done, however, either in accordance with the statute’s terms or the Constitution is to recommit the respondent to a secure psychiatric hospital pursuant to CPL 330.20. More than a decade after the acts leading to respondent’s insanity acquittal, and after an intervening judicial determination that respondent was no longer dangerous, respondent simply cannot be resubjected either pursuant to the statute or the Constitution to the dramatically disparate recommitment provisions of CPL 330.20. But, even if respondent does at this late date fall within the statute’s permissible ambit, it is plain that neither the statute nor the Constitution permit respondent’s detention upon the grossly deficient predicate established at the recommitment hearing.
Accordingly, the order of the Supreme Court, New York County (Edith Miller, J.), entered February 1, 1993, which after a hearing denied the appellants’ application seeking recommitment of respondent pursuant to CPL 330.20, should be reversed, on the law, the determination on the merits
Carro, Wallach and Nardelli, JJ., concur; Murphy, P. J., dissents in a separate opinion.
Order, Supreme Court, New York County, entered on February 1, 1993, which denied the appellants’ application seeking recommitment of the respondent, pursuant to CPL 330.20 (14), reversed, on the law and the facts, and the application granted.
. It should be noted that not one of the six psychiatrists testifying at
. These are the standard conditions required by statute to be included in an order of conditions (CPL 330.20 [1] [o]). These conditions were not at the time supplemented with any additional provisions designed to address respondent’s particular needs and circumstances.
. Both incidents appear to have been covered by this plea.
. The court-appointed independent psychiatric expert, Dr. Azariah Eshkenazi, stated in his report to the court dated March 23, 1990, "once Mr. S. is stabilized on Lithium, he could comfortably be transferred to a less secure facility, since he does not represent any danger to himself or others as a result of his mental condition.” This was a conclusion in which Dr. Ahmed Hakki of the Kirby Forensic Psychiatric Center came to concur. The court’s determination to deny the application was thus well supported.
. Mr. Richard Miraglia, Assistant Director of the OMH Bureau of Forensic Services, in fact, submitted an affidavit in support of the within application for recommitment in which he states: "13. Subsequently, the undersigned was informed by Ms. Rossi that Mr. S. a/k/a S. had relocated to the New York City Metropolitan Area and was reported to be living with his brother Gregory S. at 39 Ocean Avenue in Monmouth, New Jersey.” Miraglia goes on to state that he sent a letter to respondent at his brother’s address, dated February 4, 1991, indicating that respondent should continue his treatment at the Coney Island/Sheepshead" Bay clinic.
. CPL 330.20 (14) requires that a defendant be given written notice of a recommitment application and that he or she be served either personally or at his or her last known address with notice of the hearing to be held upon
. As the Assistant District Attorney stated at the recommitment hearing, "the judge did not sign the warrant, stating that Mr. Castillo’s affidavit was insufficient due to hearsay.”
. CPL 330.20 (14) provides in relevant part, "[i]f the defendant fails to appear in court as directed, the court may issue a warrant to an appropriate peace officer directing him to take the defendant into custody and bring him before the court. In such circumstance, the court may direct that defendant be confined in an appropriate institution located near the place where the court sits” (emphasis added).
. It does not appear that this determination was appealed by the Commissioner.
. CPL 330.20 (1) (c) states: " 'Dangerous mental disorder’ means: (i) that a defendant currently suffers from a 'mental illness’ as that term is defined in subdivision twenty of section 1.03 of the mental hygiene law, and (ii) that because of such condition he currently constitutes a physical danger to himself or others” (emphasis added).
. The applicable definition of "mental illness” is "an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitiation” (Mental Hygiene Law § 1.03 [20]; emphasis supplied).
. Contrary to the District Attorney’s representation, there is no indication in the record that Ibanez was board certified. The only expert qualifications of record are that Ibanez obtained his medical degree from Far Eastern University in the Phillipines and then completed a residency in psychiatry in this country.
. Poundstone stated, "after reviewing some of the material that came in later from other hospitals, it appeared that lithium had never done him [respondent] much good.”
. He stated that it was an exercise of good medical judgment not to administer the drug.
. His testimony on this latter occasion is nowhere even alluded to by the majority.
. It will be recalled that respondent was not returned to South Beach until subsequent to the disposition of his habeas corpus petition on January 5, 1993.
. He acknowledged that no one else on his service had been hospitalized by reason of that disorder.
. Once again, contrary to the District Attorney’s brief, there is no indication in the record that Dr. Cruz was board certified. Like Dr. Ibanez, Dr. Cruz attended medical school in the Philipines and thereafter completed his postgraduate medical training in this country.
. Indeed, even after having been afforded the opportunity to refresh his recollection by referring to the account of the Central Park incident contained in the hospital record, Cruz was still unable to provide even a minimally accurate account of the incident, as reported. When the Assistant Attorney-General in an attempt to rehabilitate Cruz inquired, “Do you have any recollection now of the details of what was alleged that occurred in the park, what this man allegedly did? * * * Do you have the fact or details of what he was doing? If you don’t, tell me you don’t know.” Cruz replied, "No, sir.”
. Dr. Poundstone, respondent’s treating psychiatrist at Kirby Forensic Psychiatric Center, had, by contrast, felt it clinically appropriate to meet with respondent on a daily basis.
. It may be noted that, notwithstanding the fact that Sargeant had apparently been entrusted with considerable responsibility for respondent’s direct care, he was not an expert in psychiatry, psychology or social work and accordingly was not qualified as such.
. He did not even know, for example, that respondent had been hospitalized for a period of two years at Greystone Psychiatric Center.
. Cruz testified: "He [respondent] told me himself that this doctor [Langsten] thought that he did not need medication, that he was not manic depressive, and I disagreed.” Cruz was then asked, "You didn’t think it was important to discuss that with his out-patient doctor?” to which he responded, "That’s correct, because I disagreed with the diagnosis.”
. When asked whether he had reviewed respondent’s hospital records over the preceding decade, Cruz stated, "I don’t have to. As I said, its a phenomenology of an illness.” When further pressed as to the clinical basis for his claim that respondent had been ill with bipolar disorder for at least 10 years, Cruz responded, "Psychiatric certainty tells me that.”
. The reference here is to what is referred to throughout the record as
. This is to say that, although pharmacologically a stimulant, Cylert has been observed actually to have a quieting effect in adults with attention deficit disorder.
. During the Nixon presidency, Dr. Eshkenazi was appointed as a White House consultant on drug and alcohol abuse prevention.
. The response rate to lithium carbonate among those who are afflicted with bipolar illness is about 70 per cent.
. In this regard, Weiner was careful to distinguish evidence gleaned from competent psychiatric examination from the various lay accounts of incidents in which respondent was alleged to have committed crimes. As to the latter sort of evidence, Weiner stressed that it would not be possible to determine from such accounts alone whether the conduct described was attributable to acute psychiatric illness. Absent any relatively contemporaneous clinical evaluations such reports, if accurate, could, in Weiner’s view, be taken as indicative of no more than recidivist criminality, a phenomenon which, while perhaps reflective of serious personality problems, bears no necessary relation to any legally relevant psychiatric disorder.
. Indeed, Weiner testified that even a voluntary psychiatric hospitalization for the treatment of ADHD would not have been appropriate. When asked, "If he [respondent] presented to an admitting room of a psychiatric hospital where you worked and asked to be admitted, would he be admitted, given his diagnosis [ADHD]?”, Weiner responded, "No”.
. The court, of course, directed such service in accordance with CPL 330.20 (14) which provides in relevant part, "[s]uch order [the order directing the defendant’s appearance for a hearing upon the recommitment application] may be in the form of a written notice, specifying the time and place of appearance, served personally upon the defendant, or mailed to his last known address, as the court may direct.”
. The warrant application was made pursuant to CPL 330.20 (14) which provides in relevant part: "If the defendant fails to appear in court as directed, the court may issue a warrant to an appropriate peace officer directing him to take the defendant into custody” (emphasis added).
. "Mental illness” is defined in the referred-to section of the Mental Hygiene Law as "an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation” (emphasis added).
. It should be noted also that, unlike CPL 210.20 which the majority finds pertinent but which expressly is not (see, infra, n 35), the obligation to dismiss an insufficiently supported CPL 330.20 application is placed squarely and exclusively on the court—no motion by the defendant is required. This is quite plainly because at issue is the basic authority of the court to adjudicate. By contrast, pursuant to CPL 210.20 the dismissal of an indictment must be "upon motion of the defendant” (CPL 210.10 [1]).
. There is no basis for the majority’s attempt by "analogy” to equate the scope of appellate review in a criminal appeal with that obtaining in an appeal occurring within the CPL 330.20 framework. An appeal such as the one at bar, taken pursuant to CPL 330.20 (21), is considered civil in nature and is expressly governed by the CPLR, not the CPL (CPL 330.20 [21] [c]); and pursuant to CPLR 5501 (a) (1) respondent is entitled to have reviewed "any non-final judgment or order which necessarily affects the final judgment, including any which was adverse to the respondent on appeal from the final judgment and which, if reversed, would entitle the respondent to prevail in whole or in part on that appeal”. Obviously, the majority’s attempt at analogy notwithstanding, respondent is entitled to have the denial of his motion to dismiss the application as insufficiently supported reviewed.
While it is doubtless true that the majority sees "little point” to focusing upon the sufficiency of the supporting affidavit, "the point”, entirely deserving of appellate vindication, is that the court should not have exceeded its authority under the statute (see, n 34, supra); nor should respondent have had to litigate, or have been committed during the lengthy pendency of, a recommitment application whose essential clinical merit had not been even provisionally documented by an examining psychiatrist.
. Judge Meyer filed a separate concurrence which as Judge Fuchsberg, who concurred in both the plurality opinion and the concurrence, noted was entirely consistent with what had been said in the plurality writing.
. The Court at this juncture went on to note that the difficulty in viewing the Henig presumption as conclusive was "further buttressed” by the circumstance that insanity was a defense to be disproved by the prosecution beyond a reasonable doubt and consequently that an acquittal fairly signified only that the prosecution had failed to meet its burden not that the defendant was in fact insane (supra, at 674). Insanity has since Torsney been redefined in the Penal Law as an affirmative defense (Penal Law § 40.15), so that it may be argued that the Henig presumption is warranted at least to the extent that an insanity acquittal now entails a finding that mental disease or defect at the time of the crime’s commission was established by a preponderance. This, however, does not detract from Torsney’s principal and still valid observation that the existence of a long, or as in the case at bar very long, period between the crime and the acquittal casts considerable doubt on the presumption’s continuing validity.
. Although the holding in Escobar concerns only the burden applicable in proceedings to continue a defendant in the Commissioner’s custody (see, People v Escobar, supra, at 434), and does not address the extent to which relaxation of the Addington burden may be permitted in the context of a recommitment proceeding, I accept for purposes of argument only, appellants’ contention that the applicant’s burden is, pursuant to the statute, uniformly relaxed in CPL 330.20 commitment, retention and recommitment proceedings. Whether such relaxation is in the recommitment context constitutionally permissible, I would stress, remains an open question which Escobar does not even purport to decide.
. The Court held only that the acquittee might be committed upon the strength of the cited inference until "he has regained his sanity or is no longer a danger to himself or society” (Jones v United States, supra, at 370), it did not offer any view as to whether the District of Columbia’s requirement that all insanity acquittees, as a condition of release, demonstrate sanity or nondangerousness by a preponderance comported with due process or equal protection (see, infra, n 40).
. The Court stated:
"It is important to note what issues are not raised in this case. Petitioner has not sought appellate review of the Superior Court’s findings in 1976 and 1977 that he remained mentally ill and dangerous, and, indeed, the record does not indicate that since 1977 he ever has sought a release hearing—a hearing to which he was entitled every six months.
"Nor are we asked to decide whether the District’s procedures for release are constitutional. As noted above * * * the basic standard for release is the same under either civil commitment or commitment following acquittal by reason of insanity: the individual must prove by a preponderance of the evidence that he is no longer dangerous or mentally ill. There is an important difference, however, in the release provisions for these two groups. A patient who is committed civilly is entitled to unconditional release upon certification of his recovery by the hospital chief of service * * * whereas a committed insanity acquittee may be released upon such certification only with court approval * * *. Neither of these provisions is before the Court, as petitioner has challenged neither the adequacy of the release standards generally nor the disparity in treatment of insanity acquit-tees and other committed persons. [Citation omitted.]” (Jones v United States, supra, at 363, n 11; emphasis added).
. I use the word "may” advisedly, for contrary to Escobar (see, People v Escobar, supra, at 439), Jones did not uphold the validity of that portion of the District of Columbia postverdict statute requiring the defendant, as a condition of release, to prove his sanity or nondangerousness by a preponderance. The constitutionality of the procedures employed by the District of Columbia postverdict statute, other than its automatic commitment provision, was simply not before the Court in Jones (see, Jones, v United States, supra, at 363, n 11).
. Section 9.39 of the New York State Mental Hygiene Law, for example, authorizes the civil commitment of a person who has manifested his or her psychiatric illness by ”threats of or attempts at suicide or serious bodily
. As noted above, Cruz claimed it was unnecessary to consult respondent’s medical records since "[psychiatric certainty” confirmed the validity of his diagnosis (see, supra, n 24).
