46 A.D.2d 999 | N.Y. App. Div. | 1974
Judgment unanimously modified in accordance with memorandum and as modified affirmed, without costs. Memorandum: Acting under CPL 330.20 (subd. 2) the State Commissioner of Mental Hygiene petitioned Special Term for the release of Rufus Lee from Buffalo State Hospital and his return to the community. Lee had been tried for the murder in 1964 of two women, was found guilty and was sentenced to life imprisonment therefor in January, 1966. His conviction was reversed, and on retrial in April, 1972 he was found not guilty by reason of insanity, and since May, 1972 he has been at the Buffalo State Hospital. Petitioner asserts that Lee has responded so well to treatment that he is “ neither dangerous nor abnormal ”; that he has “ a most excellent trial attorney * * * who has advanced his interests skillfully and he has shown the capacity to work to a plan developed by his attorney ”; that the “ hospital has been actively working with his trial attorney * # * " and we are now in agreement that there is every reason * 6 * to secure permission from the Courts to return Mr. Lee to the community”. Pursuant to CPL 330.20 (subd. 2), notice of the application for Lee’s release was given to the Erie County District Attorney who thereupon sought to appear in behalf of the People at a hearing which was authorized under CPL 330.20 (subd. 3). Through his attorney Lee opposed any participation by the District Attorney at such hearing, other than as an observer, and Special Term agreed with him. The District Attorney appeals from the judgment entered so limiting his right of appearance at such hearing. He points out that in April, 1973 the-Buffalo State Hospital petitioned the court to transfer Lee to Matteawan State Hospital because his behavior indicated that he presented a danger to persons in the community and to the hospital staff; and that less than three months later the instant petition for Lee’s release to the community was made. Because of such apparent inconsistent petitions, Special Term in September, 1973 ordered