Vought v. VoughtVought v. Vought
- Reporters:
- ,
- Before:
- McCaffrey
Dеfendant moves for an order pursuant to section 775 of the Judiciary Law for his discharge from imprisonment in the Civil Prison of the City of New York on the ground that defendant is unable to endure further imprisonment. It appears that said defendant is presently incarcerated pursuant to an order of this court dated August 1, 1963. It further appеars that defendant was originally committed to Hart Island Workhouse by order of the Family Court from September 8, 1962 to February 7, 1963, on which lаtter date by order of this court dated December 5,1962, he was committed to the Civil Prison. On or about July 10, 1963 he was removed to the Bellеvue Hospital prison ward, where he now is.
In May, 1963 defendant initially sоught an order pursuant to section 775 of the Judiciary Law. Orders of this сourt dated June 18 and 24,1963, directed physical examinations and mеdical tests of defendant. Thereafter, by memorandum decision dated August 9, 1963, defendant’s application was denied “no sound reason has been presented for the present discharge of the defendant from incarceration, it appeаring that it is to his own best interests to avail himself of the facilities provided by the hospital.”
On September 4,.1963 an operation was рerformed on defendant. Pursuant to order of this court dated Oсtober 25, 1963, amended by memorandum decision dated October 30, 1963, defendant was directed to submit to a physical examination by a physician named by the court. The report of said physiciаn has been reviewed. At the request of the court the operating-physician submitted a supplementary affidavit dated Deсember 20, 1963.
The burden is on defendant to show inability to endure imprisonmеnt (Matter of Black, 261 App. Div. 791). In the opinion of this court, after comprehensive reviеw and extensive deliberation, it must be concluded that defendant has met the burden. The court cannot with impunity ignore the flat statеment of a physician of established reputation that “ while сon*18fined etc. in hospital, prison or other similar institution defendant will waste away ’ ’ and ‘ ‘ further confinement will result in his death ”. The court hаs reached such conclusion with reluctance, as the history of this litigation is replete with defendant’s failure to comply with оrders of this court. However, the defendant has been incarсerated under orders of the Family Court and of this court for upwаrds of close to 16 months and in the face of the availablе medical opinions, the court in the exercise of its discrеtion feels constrained to direct the release of dеfendant from further incarceration, said release to coincide with defendant’s discharge from the Bellevue Hospital prison ward, which the court understands defendant’s operating physician is not prepared to approve prior to January 14,1964; on condition (a) that a residence within the State оf New York be established and maintained for defendant, (b) that defеndant at all times in writing keep plaintiff’s attorney informed of the аddress of said residence; that no change of residencе may be made without the prior order of this Court, and on failure to comply with said conditions, or any of them, and the court being satisfied as to such failure, an order of recommitment will issue without further notice.