A New York Criminal Lawyer said that, at that time, respondent was at the scene of a drug raid for the purposes of purchasing marijuana. He refused the order of a police officer to leave and was arrested for disorderly conduct. As he was being placed under arrest, he pulled out a six-inch hunting knife and attempted to stab the officer. As a result, he 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, respondent 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. He 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.
A New York Criminal Lawyer said as a result of the observations as well as examinations of respondent, was diagnosed as a chronic undifferentiated schizophrenic with acute exacerbation. His treating psychiatrist prescribed a high dosage of anti-psychotic medication. Greystone’s doctors agreed that he 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.
A New York Domestic Violence Lawyer said that, 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 receive aftercare at a local New York City mental health center upon release from custody.
A Staten Island Criminal Lawyer said that, upon being returned to New York, respondent was released on his own recognizance. In February 1987, while drunk and without a driver’s license, he drove his car into a parked car in Manhattan, causing a multi-vehicle accident. As a result, he was charged with reckless endangerment of property, reckless driving, and (DWI) driving while intoxicated. One month later, he 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.
A Queens Criminal Lawyer said on August 7, 1987, 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, he was remanded to a non-secure facility for four months under the custody of the New York State Office of Mental Health. In addition, Justice 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, the charges relating to the car accident noted above were dismissed.
A New York Assault Lawyer said that, 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, of the doctor stated that he 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 ten-inch-long metal pipe wrapped in leather. Police Officer encountered respondent outside of the restaurant after he had been ejected but then tried to get back inside. Officer asked him to leave the area, but he refused and swung his arms around and yelled. As he was being placed under arrest for disorderly conduct, he bit the officer on the hand. As a result, he was charged with assault, resisting arrest, menacing and criminal possession of a weapon. On November 5, 1989 he pleaded guilty to assault in the third degree and was sentenced to 30 days in jail.
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 respondent’s psychiatric records, his arrests in 1991 and 1992, and his persistent non-compliance with the order of conditions. OMH asserted that respondent suffered from a dangerous mental disorder. However, OMH was not able to locate him.
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 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 him and not to grant the application for recommitment upon the authority of a previous case decision, because respondent 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 evidence, and in fact by clear and convincing evidence, that respondent suffered from a dangerous mental disorder at the time of the hearing, and accordingly the petition for recommitment pursuant to CPL 330.20(14) should have been granted.
Nevertheless, relying on Matter of Torres the Court “reluctantly” held that the Commissioner failed to demonstrate that respondent suffered from a dangerous mental disorder. The Justice ruling was incorrect, in our view, since there was ample evidence that he suffered from such a disorder. Consequently, the order appealed from should be reversed, the application granted and respondent confined to a secure psychiatric institution.
We find no merit to respondent’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 and by the Appellate Division, Second Department, under constitutional due process and equal protection standards. 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.
Nor do we find merit to respondent’s claim that the proceeding to recommit him was untimely. The application for recommitment was originally filed on August 4, 1992, within the five-year period of the order of conditions which commenced August 7, 1987, the date he pleaded not responsible by reason of mental disease or defect. While these conditions were amended at one point, the amendment was made nunc pro tunc as of August 7, 1987. The application was filed with the court on August 4, 1992, and attempted service at his last known address was made. However, it was later discovered that S. did not receive a copy of the recommitment application, and shortly thereafter a new notice of the recommitment application was sent to him at his fiancée’s residence in Baldwin, New York, where it was actually received by him.
CPL 330.20(14) provides that “at 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 him 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.
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. 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.” 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”. 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 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, entered February 1, 1993, which denied the appellants’ application seeking recommitment of respondent pursuant to CPL 330.20(14), should be reversed, on the law and on the facts, and the application should be granted.
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