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The defense called another Doctor

In November 2005, the defendant entered a plea of not responsible by reason of mental disease or defect to the crime of Criminal Possession of a gun in the Second Degree, and to other related offenses. It was alleged that the defendant displayed a firearm while threatening to use it against the complainant, the defendant’s sister-in-law, and that said actions caused her fear of physical injury. A commitment order, pursuant to CPL 330.20[6], was issued and the defendant was remanded to the care and custody of the State Commissioner of Mental Health. The defendant was confined in a secure facility pursuant to CPL 330.20. After stipulation by the parties, as reflected in an Order, the defendant was found, although mentally ill, to no longer have a dangerous mental disorder. The defendant was subsequently transferred to a Psychiatric Center, a non-secure facility. Since the defendant has been in the custody of the Commissioner, several orders of retention have issued.3 The defendant is currently still a patient, and resident of the center.

A New York Drug Posssession lawyer said that the Commissioner has filed an application for a subsequent two- year retention order. The defendant is opposed to retention and is seeking his conditional release.

Since the parties involved6 in this criminal case were unable to work out a settlement as to this issue, the matter was adjourned for the Court to conduct the instant retention hearing. The hearing was conducted over several dates. The defendant’s entire clinical record, as well as many reports written concerning him, was deemed admitted into evidence for each side to use in questioning the witnesses and in making argument to the Court.

The first witness called by the State was a Doctor, who testified that she supervises the doctor who treats the defendant. She testified that she has known the defendant for a little less that a year. She opines with a reasonable degree of clinical certainty that the defendant is suffering from mental illness. The doctor stated that the defendant suffers from a “major depressive disorder with psychotic features currently in remission” a “substance use disorder”, “a personality disorder not otherwise specified with some significant sociopathic traits”, and regarding his physical condition, the defendant has a “history of colon cancer, status post resection of a portion of the colon. He had history [sic] of head trauma. He has arthritis of the cervical spine. He has minor herniated discs on the cervical spine. He recently was found to have polyps of the colon. And he also has some type of seizure disorder which I believe is complex partial seizures”

To Be Cont…

A New York Criminal attorney said that the doctor indicated that some of the defendant’s mental health symptoms are in remission. The doctor continued that remission means that the symptoms have been controlled with the current treatment that the defendant is receiving. The symptoms in remission are not manifested to a degree that causes impairment in function.

When asked how the defendant is being prepared for transition to the community, the doctor explained that the defendant is being closely monitored regarding his belongings and urines, is encouraged to participate in group therapy, and has been advised to accept the fact that substances are a part of his life and are dangerous, even if only used once or twice a month. The defendant attends some groups, some are MICA or mental-chemical groups.

The defense called another Doctor who testified that the defendant denied ever having psychotic symptoms. The defendant’s records reflect that his diagnosis is major depressive disorder with psychotic features. He testified that the psychotic features that are sometimes seen with this condition include delusions, hallucinations, and thought disorder. He testified that the defendant indicated to him that he had never suffered from delusions or hallucinations.

The next witness called on behalf of the defense was the defendant’s wife of nine years. She testified that she and the forgery defendant share a great marriage, that the defendant was admitted to the center in May of 2007. She testified that the defendant was hospitalized due to an incident that occurred in 2004. The defendant was upset, and pulled a gun on her father, because the wife was beaten by her father. When the Court inquired as to how this became a psychiatric matter, the witness indicated that there was more to the story, but that she did not want to address it.

She testified that she sees the defendant two to three times a week, that she works full time, that she wants the defendant to come home, and that she has never felt threatened by the defendant. She continued that if the defendant came home, she would like him to continue in outpatient treatment, and that if she ever felt threatened, she would take steps to protect herself.

The next witness called by the defense was the defendant himself. The defendant testified that he was in court so it could be determined if he “should get an order of retention or hopefully be discharged”. The defendant testified that should he be released, he would continue to take his medications. He testified that he has no desire to hurt himself or anybody else.

When the defendant was asked to explain the events which led up to his arrest and admission to a psychiatric hospital, the defendant stated that after he broke his neck in a car accident, he was home all the time. Then, his sister-in-law came to him and told him that she wanted him to know that her father was forcing her to have sex with him. The defendant told her that she did not have to do that, but she replied that if she stopped, he would put her out and she would have no place to stay. The defendant stated that he told his wife about this, and that subsequently, his sister-in-law told him that her father was also forcing the defendant’s wife to have sex with her father. The defendant stated he felt like he was shot with a bullet when he heard this and commits a felony.

The defendant continued that when his wife got home that evening, he wanted to find out without being direct. So, he told her he loves her, that he will always be with her, and that there is nothing she could tell him that would make him leave her. The defendant testified that he told his wife that if she is holding a secret, she should tell him, and then when his wife said she did not know what he was talking about, he told her that her sister told him that her father was forcing them both to have sex with him, and he has been doing it since their mother died, when his wife was 14 years old. The defendant stated that his wife was shocked and surprised that he knew. The defendant said that he told his wife they were all going to talk about it, and get some help. The defendant continued that he, his wife, her sister and father all went to sit down together.

To Be Cont…

The defendant testified that he confronted his wife’s father, that his wife was nervous and crying and left the room, and that her sister followed her out. The defendant said that his wife’s father said that the defendant’s wife is not his real daughter, and that her sister does not have a man, so “when she needs it, I give it to her”, as if he were doing her a favor. The defendant testified that the next morning when he went to take his shower, he saw his wife in the shower, and she was all black and blue, and was beaten up. When the defendant asked her what happened, she said that nobody beat her up, and became hysterical. The defendant continued that one day he saw that his wife’s father had his wife’s sister on a wall, and was punching her in the face, and he separated them. The domestic violence defendant indicated that he had told his wife this, and that on another occasion, he saw his wife’s father beating up her sister again. The criminal defendant testified that when he saw his wife, he believed her father had beaten her, but needed his wife to tell him herself.

When asked by the Court when could the defendant ever be expected to be released, when his illness is gone today but could be back tomorrow, the doctor testified that with maintenance medications, the defendant can lead a very productive life out of the hospital. When the Court noted that the defendant stated that he would take his medications, the Doctor commented “for a condition that he doesn’t believe he has”

The ultimate legal issue before the Court is whether the application of the Commissioner of Mental Health seeking a subsequent two- year retention order of the defendant pursuant to CPL 330.20 should be granted. The defendant is opposed to that application and is seeking his conditional release.

At a hearing on an application for retention, CPL 330.20[9] states that “the commissioner must establish to the satisfaction of the court that the defendant has a dangerous mental disorder or is mentally ill”. Furthermore, the statute states that “if the court finds that the defendant does not have a dangerous mental disorder and is not mentally ill, it must issue a release order and an order of conditions pursuant to subdivision 12 of this section”. CPL 330.20[12], entitled “Release order and order of conditions”, delineates the course of action that must be taken before, and during, a defendant’s release, and the responsibilities of the parties involved. It must be noted, that should a defendant be released, the Commissioner’s responsibility for, and his supervision over, the defendant would not be terminated.

The order only ends the defendant’s in-patient status. The defendant would be subject to an order of conditions, which must issue, and which will guarantee that the defendant will be supervised for years to come, unless the time comes, if ever, when the defendant earns the right to absolute discharge. Furthermore, a violation of the order of conditions will subject the defendant to recommitment to the hospital and to the custody of the Commissioner. The burden of proof for the application for retention is on the State, and it must establish that the defendant has a dangerous mental disorder or is mentally ill, by a preponderance of the evidence. Statutorily, the terms “dangerous mental disorder” and “mentally ill” have its own meanings in relation to CPL 330.20. A dangerous mental disorder, defined in CPL 330.20[1][c], “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,29 and (ii) that because of such condition he currently constitutes a physical danger to himself or others”. Mentally ill, defined in CPL 330.20[1][d], “means that a defendant currently suffers from a mental illness for which care and treatment as a patient, in the in-patient services of a psychiatric center under the jurisdiction of the state office of mental health, is essential to such defendant’s welfare and that his judgment is so impaired that he is unable to understand the need for such care and treatment”.

Since the defendant was previously adjudicated non-dangerous, the relevant statute in this criminal case is CPL 330.20[1][d]. The Court must determine if the defendant is mentally ill. The New York State Court of Appeals has held that the term “mentally ill” has three distinguishing characteristics: “(1) illness is of a kind that requires inpatient care and treatment, (2) care and treatment of the illness are essential to the defendant’s welfare, and (3) because of impaired judgment the defendant does not understand the need for such care and treatment”

During the course of this retention hearing, the Court heard testimony from two very competent and very compelling doctors, and from the defendant and his wife. Upon careful review of their testimony, as well as the medical reports, the independent examiner’s report, and the entire record in this criminal case, the Court has concluded that the People have demonstrated “by a preponderance of the evidence that continued care and treatment are essential to the physical or psychological welfare of the defendant and that the defendant is unable to understand the need for such care and treatment”. Therefore, the Court finds that the People have met their burden of proving that the defendant is mentally ill as that term is defined statutorily in CPL 330.20. Assault was not charged.

Although the Court finds that there could be no disagreement between the parties as to the need for the defendant’s continued care and treatment, there certainly is a great deal of disagreement between the parties as to whether or not that care requires the defendant to receive inpatient treatment at Creedmoor. In resolving this issue, the Court has looked to the testimony of the witness doctors. While the doctors have no dispute that the defendant needs to be maintained on his medications in order for his symptoms to remain in remission, the other testified that the defendant requires further inpatient care to achieve this goal, while the other doctor testified that the defendant’s medication regimen can be successfully maintained upon his release.

Defendant is not yet ready for conditional release. Although the Court is granting the State’s application for a subsequent retention order, said subsequent retention order is to be for a period of ONE YEAR ONLY. This is the time period in which the doctor opined that the defendant, hopefully, could be ready for a change from his inpatient status at Creedmoor.

People who are under the condition of mental problems may commit crimes involuntarily. Here in Stephen Bilkis and Associates, our New York Criminal lawyers will give an advice to them as well as to their guardians on how to take care of them. In case a person was found and arrested for possessing illegal substance, you can also consult our New York Cocaine Possession attorneys. We will help you with your predicaments.

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