Opinion
Argued September 27, 1999
November 1, 1999
In a proceeding pursuant to CPL 330.20(9) for a subsequent retention order, John Palmer, the Executive Director of Kingsboro Psychiatric Center, appeals, by permission, from an order of the Supreme Court, Kings County (Lewis, J.), dated November 16, 1998, which, upon rehearing and review pursuant to CPL 330.20(16) and Mental Hygiene Law § 9.35, in effect, denied the petition and directed the release of Leon R. under appropriate conditions.
Eliot L. Spitzer, Attorney-General, New York, N.Y. (Michael S. Belohlavek, Susan B. Eisner, and Mary Lynn Nicolas of counsel), for appellant.
Sidney Hirschfeld, Mineola, N.Y. (Valdi Licul and Dennis B. Feld of counsel), for respondent.
CORNELIUS J. O'BRIEN, J.P., FRED T. SANTUCCI, WILLIAM C. THOMPSON, MYRIAM J. ALTMAN, JJ.
DECISION ORDER
ORDERED that the order is affirmed, without costs or disbursements.
In 1988, Leon R. was committed to a secure psychiatric facility pursuant to CPL 330.20 after he was found not responsible due to mental disease or defect for the death of a fellow prison inmate. In or about December 1989 he was transferred to Kingsboro Psychiatric Center (hereinafter Kingsboro), a nonsecure facility, where, pursuant to multiple retention orders, he has remained. After the appellant obtained the most recent retention order, Leon R. sought and obtained a rehearing and review pursuant to CPL 330.20(16) and Mental Hygiene Law § 9.35. After hearing testimony from Leon R.'s treating psychiatrist and a psychiatrist who testified on his behalf, the hearing court found that Leon R. is neither mentally ill nor suffering from a dangerous mental condition and ordered his release subject to various conditions ( see, CPL 330.20).
The undisputed evidence established that Leon R. has exhibited no symptoms of mental illness during the nine years between his transfer to Kingsboro and the instant rehearing. Moreover, he did not suffer any relapse during a sixteen-month period when his treatment protocol did not include medication. Giving the determination of the hearing court the deference to which it is entitled ( see, Matter of George L., 85 N.Y.2d 295, 305), the hearing court properly found that the appellant failed to prove by a preponderance of the evidence that Leon R. has a dangerous mental disorder or that he is mentally ill ( see, CPL 330.20; Matter of George L., supra; People v. Escobar, 61 N.Y.2d 431; Matter of Richard W, 250 A.D.2d 695; People v. Buthy, 168 A.D.2d 1000). Accordingly, the order, inter alia, directing his release upon appropriate conditions is affirmed.
O'BRIEN, J.P., SANTUCCI, THOMPSON, and ALTMAN, JJ., concur.