Opinion
707/2004
09-06-2011
The People of the State of New York v. D.S.D., DEFENDANT
The defendant was represented at the hearing by Adam Bogin, Esq, of Mental Hygiene Legal Service. The State was represented by Assistant New York State Attorney General Jose Velez and Queens County Assistant District Attorney Michael P. Kavanaugh .
, J.
On November 29, 2005, the defendant, D.S.D., entered a plea of not responsible by reason of mental disease or defect (see, CPL 220.15) to the crime of Criminal Possession of a Weapon in the Second Degree, and to other related offenses. It was alleged that on January 23, 2004, 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 dated October 12, 2006, Aloise, J., the defendant was found, although mentally ill, to no longer have a dangerous mental disorder. The defendant was subsequently transferred to Creedmoor Psychiatric Center, a non-secure facility. Since the defendant has been in the custody of the Commissioner, several orders of retention (see, CPL 330.20[8] and [9]) have issued. The defendant is currently still a patient, and resident, of Creedmoor.
At the time of the crime, the defendant was 55 years old, as his date of birth is September 25, 1948. The defendant is now almost 63 years old.
See, the plea minutes, dated November 29, 2005, Aloise, J. The Court notes that the indictment charges the defendant with possessing a firearm, with the intent to use it unlawfully against another, as well as possessing a knife, with the intent to use that dangerous instrument unlawfully against another. The Court would also note, that although the defendant's sister-in-law is referred to in the plea minutes as the complainant, the People stated on the record that the defendant also had the intent to shoot his father-in-law. It will become apparent throughout the body of this opinion that the defendant's threats towards his father-in-law form a basis for the doctors' opinions regarding this defendant, and are an integral element of the issues underlying this case.
An order of retention, defined in CPL 330.20[1], subdivisions [g],[h], [i], and [j] is a court order authorizing continued custody of a defendant by the Commissioner of Mental Health for a specific period of time.
The Commissioner has filed an application, dated May 20, 2010, for a subsequent two- year retention order. The defendant is opposed to retention and is seeking his conditional release. Since the parties involved in this 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 (see, CPL 330.20[9]). The hearing was conducted over several dates, May 6, 2011, May 13, 2011, and June 10, 2011. Oral argument was conducted on August 12, 2011. The defendant's entire clinical record, as well as many reports written concerning him, were deemed admitted into evidence for each side to use in questioning the witnesses and in making argument to the Court.
After two retention orders have already been issued regarding a defendant, the third or any subsequent retention order is referred to as a "subsequent retention order". See, CPL 330.20[1][i].
A release order is one, "directing the commissioner to terminate a defendant's in-patient status without terminating the commissioner's responsibility for the defendant" (see, CPL 330.20[1][m]). This order may also be referred to as a conditional release order, in that the defendant, if released, must be subject to an order of conditions. See, Matter of Oswald N., 87 NY2d 98 [1995]; see also, CPL 330.20[12]. An order of conditions is "an order directing a defendant to comply with [a] prescribed treatment plan, or any other condition which the court determines to be reasonably necessary or appropriate..." (see, CPL 330.20[1][0]). "Should a defendant fail to comply with the treatment plan specified in the order of conditions and thereafter become[s] dangerous to himself or others, the courts may, upon a hearing, recommit the defendant to a secure psychiatric hospital" (see, Matter of Oswald N., 87 NY2d 98, 102 [1995]).
The defendant is represented by the State of New York Mental Hygiene Legal Service. The State's interests are represented by two different offices. The Queens County District's Attorney's Office represents the People of Queens County, in that the crime charged occurred in their jurisdiction. The Commissioner of Mental Health, and in turn the Office of Mental Health, as well as Creedmoor Psychiatric Center, are represented by the Office of the New York State Attorney General. It is not unusual for these two offices to work together, as they did in this case, in this type of hearing.
Had the parties agreed, a possible settlement to this case may have involved the defendant being granted increased privileges, or perhaps a compromise on the time in which a new retention order would expire.
Many of these reports are contained in the court file.
At the hearing, the State called Dr. Ida Escovar, and the defense called Dr. Allen Reichman. The Court found both of these witnesses to be credible. The defendant, and his wife Mrs. D.S.D (hereafter referred to as Mrs. D.), testified on his behalf. The Court will now summarize the relevant testimony elicited at the hearing.
The first witness called by the State was Dr. Escovar. Dr. Escovar testified that she supervises the doctor, Dr. Soon Oh, who treats the defendant. She testified that she has known the defendant for a little less that a year.
The parties stipulated that Dr. Escovar is an expert in the field of psychiatry, and the Court permitted her to express her opinions in this field.
Dr. Escovar testified that it is her opinion, 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 [sic] 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" (see, the minutes, dated May 6, 2011, at page 7, lines 7- 17).
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. Dr. Escovar explained, that it is "like arthritis, [f]or as long as you take your medication, you are free of pain" (see, the minutes, dated May 6, 2011, at page 9, lines 3- 4).
When Dr. Escovar was asked if there are any symptoms that the defendant is currently exhibiting, the doctor stated that she has concerns about substance abuse issues. She testified that the use of substances can adversely affect the defendant's depression and psychotic features. The Court then asked the doctor how the defendant's seizure condition fits into his mental or physical profile, and Dr. Escovar explained that "after seizure activity can manifest as psychosis such as a hallucinations, delusions, paranoia" [sic] (see, the minutes, dated May 6, 2011, page 9, lines 21- 22). Furthermore, she stated that seizures can be affected by the use of substances, in that alcohol, cocaine, and marijuana can lower the seizure threshold, so that even on medication, an individual may have a relapse of seizures. Dr. Escovar elaborated that seizure medication may interact with psychiatric medications, so that medications for seizures and psychiatric symptoms must be balanced.
Dr. Escovar testified that the defendant's symptoms when he committed the conduct underlying the instant indictment included increased paranoia, and suspicion. The defendant believed that his wife's stepfather, Wally, had been involved in sexual activity with his wife and his wife's sister. The doctor continued that these beliefs caused the defendant to perceive a strange smell that the defendant stated was the smell of sex in the house, that some sexual activity was happening in the home. The doctor elaborated that there are conflicting narratives as to whether there was indeed some degree of sexual contact between the stepfather and the two women. But, Dr. Escovar testified, in any event, the defendant appeared to be paranoid and delusional. Dr. Escovar stated that as a result of whatever the defendant perceived, the defendant threatened to kill Wally, the stepfather, "with a knife, and pointing at him with a gun to his head. I believe the gun was removed but he then proceeded to try to choke him by grabbing his neck" (see, the minutes, dated, May 6, 2011, page 12, lines 13- 15).
In addition to the symptoms the doctor testified to which the defendant was suffering from at the time of the crime, Dr. Escovar indicated that the defendant had been depressed over several physical conditions, including his diagnosis of colon cancer, that he was diabetic, and had suffered a head trauma. Furthermore, Dr. Escovar testified that the defendant had lost his job due to his paranoia, that he had gotten into fights with some clients.
Dr. Escovar testified that before the defendant was charged with the instant crimes, the defendant had a number of psychiatric admissions and periods of outpatient care dating back about eleven years. The doctor continued that prior to the defendant's physical conditions, he suffered from paranoia and hallucinations. Dr. Escovar stated that leading up to the instant offenses, the defendant was agitated, depressed, and suspicious about something going on in the house. He confronted his wife numerous times about whether she had sex with her stepfather. Apparently, the defendant had seen his wife naked in the shower, and she had many bruises and black and blue marks. Dr. Escovar indicated that the defendant's wife had stated that she never saw any bruises on herself and, she denied having been attacked by her stepfather. The doctor said that "there were a number of perceptions that appeared to be inaccurate" (see, the minutes, dated, May 6, 2011, page 14, lines 3- 4).
Dr. Escovar testified that after the defendant was transferred to Creedmoor in 2007, there were very few entries in his chart indicating that he was psychotic or delusional. The entries indicate that there were issues with character, defiance of authority, not following the regulations of the hospital, and having contraband. Dr. Escovar also stated that recently, there was a problem with the defendant testing positive for cocaine use. The doctor said that after the defendant was recommended for furloughs, she had a conversation with the defendant where she advised him to accept that he had a substance abuse problem. Dr. Escovar testified that although the defendant denies that he has a history of drug and alcohol abuse, she is convinced that he does. Dr. Escovar continued that in the defendant's case, any use of chemicals is abuse. Dr. Escovar explained that the hospital has information that in the past, under the influence of alcohol, he isolated himself in a car with quaaludes and cocaine, with the intention of slashing his wrists. The use of substances affects the defendant not only psychologically, but also physically, as he has seizures. Dr. Escovar also stated that the use of narcotics or alcohol, such as Oxycontin, Hydrocodone, Tylenol 3, quualudes, vodka, wine, marijuana, cocaine, or amphetamines, can effect his symptoms, and lead to the symptoms which are presently in remission to resurface.
The Court notes Dr. Siegel's report, dated September 19, 2010, wherein the doctor found, as an independent psychiatric examiner, that the defendant "showed a tendency to be grandiose and minimize responsibility for his actions, lying to present a more favorable self-image and blaming others and circumstances for his actions".
Dr. Escovar testified that it is her opinion that the care and treatment in a hospital is presently essential to the defendant's welfare. The doctor explained that the defendant needs to work harder on his substance abuse issues and needs to develop a deeper understanding of the interaction between illicit substances and his depression with psychotic features, and his complex partial seizures. These issues are interrelated and can adversely affect each other. Dr. Escovar indicated that the defendant either does not appreciate the consequences of using these chemicals and/or is not determined not to use them, and that based on either his failure to appreciate the consequences or his lack of determination, he belongs in a hospital until there has been a change in one or both of these aspects.
Dr. Escovar stated that in order for the defendant to get a progressive increase in privileges, he must accept the fact that he has a substance abuse problem, he must attend substance abuse groups, and he must begin to work on issues of insight and judgment. The doctor opined that it would take at least a year of attending drug counseling sessions, having clean urines, and a sincere manifestation that he recognizes that chemicals represent a threat to him, his mental health, and to others, before the doctors are convinced that the defendant has turned a corner, and that their opinion as to his needing to be hospitalized may change. Dr. Escovar said that in February the defendant was granted unescorted furloughs, level 4 privileges, but within one week, the defendant tested positive for cocaine. The doctor continued that a defendant must go through a progressive approval of privileges, by the hospital's Forensic Committee, the courts, and Albany, and the process takes time. It is not as simple as writing in an individual's chart, give this level or that level of privilege. The defendant went from level 4 unescorted furloughs to level 2A, which is restrictions to escorted and unescorted privileges within his building. Dr. Escovar indicated that the defendant "blew it" (see, the minutes, dated, May 6, 2011, page 21, line 24). Furthermore, the doctor stated, yesterday (May 5, 2011), an impromptu search of the defendant's belongings revealed marijuana in the defendant's possession.
The main office of the New York State Office of Mental Health, which addresses the needs of individuals involved in the criminal justice system who suffer from mental illness, is located in Albany, New York.
Dr. Escovar testified that she has concerns that if the defendant does not follow the step progression that the hospital wants to provide for him, he would fall back into a depressive pattern. The defendant has chronic pain of his cervical spine, he was seen by an orthopedic surgeon, has medications for his neck pain, wears a brace, and his physical health is shaky. The doctor indicated that chronic pain can lead to exacerbations of depression. Additionally, there are periodic relapses in substance abuse. Dr. Escovar explained that this is a problem and she is concerned because even though the defendant has been clinically stable, he still has had positive urines, and marijuana in his possession. The doctor testified that before her opinion would change, the defendant must banish the chemicals from his life and recognize that they pose a great menace to himself and others.
Dr. Escovar indicated that the hospital is concerned that the defendant's present behavior can lead to a relapse and resurfacing of his symptoms. The doctor testified that during her interactions with the defendant, the defendant has always been a perfect gentleman, well-mannered, polite, and well-behaved, as he has behaved in court thus far. The doctor stated that her concerns with the defendant are that he has, not once, admitted that he has a substance abuse disorder, and that he does not have the expectation that he must follow the rules of the hospital. Dr. Escovar continued that every time the defendant is asked to explain himself concerning a transgression of the rules, he blames somebody else, says somebody else did it to him. The defendant externalizes the blame onto others. For example, concerning his recent positive toxicology screen for cocaine, the defendant insisted that it was a lab error.
Dr. Escovar testified that the defendant had progressed at the hospital, that in December he was recommended for unescorted furloughs, but now, unfortunately, he needs to be closely supervised. Furthermore, the doctor stated that the defendant has been behaving in ways that indicate that he does not respond to the regulations of the hospital, in that it was recently discovered that the defendant had other contraband in his room in addition to the marijuana, specifically coffee and cereal.
Dr. Escovar testified that the hospital has been trying to control the defendant's cervical pain without introducing narcotics by mouth because they have a market value and are highly addictive. So to control his pain, the defendant is taking analgesic by mouth, with some relief. If necessary, the defendant may eventually receive steroid injections. Presently, the defendant is taking Venlafaxine , Risperidone, and Carbamazepine for complex partial seizures. Dr. Escovar testified that the combination of these three medications account for why the defendant's symptoms are presently in remission.
Venlafaxine is used to treat depression. See, www.nlm.nih.gov.
Risperidone is an antipsychotic medication. See, www.nlm.nih.gov.
Carbamazepine is used to control certain types of seizures. See, www.nlm.nih.gov.
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. Dr. Escovar indicated that she would like to see the defendant sincerely acknowledge his mental illness, including his substance abuse, and how it affects the qualities [sic] of his life and others. The defendant attends activities outside of his unit, but within his building at Creedmoor. Before his relapse, he was attending activities out of the building, but on the hospital grounds.
MICA stands for mental illness/ chemical addiction, and refers to an individual who suffers from a psychiatric illness as well as a substance abuse problem. See, http://gcmha.org.
Dr. Escovar testified, regarding the defendant's privileges at the hospital, that the defendant now has level 2A privileges, which means he can leave his unit unescorted, but his freedom is limited to within his building, and he can attend any program within his building unescorted. The next level for him would be level 2 privileges, which are privileges where he can go to activities, escorted by staff, on and off Creedmoor's grounds. Level 3 privileges would permit the defendant to be, as he was in December, on Creedmoor grounds, outside of his building, unescorted. Level 4 privileges would be unescorted furloughs to visit his family, go to AA meetings outside of the facility, or to programs outside of the facility. Dr. Escovar testified that the hospital was ready to give him level 4 privileges in February, but then he tested positive for cocaine.
Dr. Escovar testified that it would be at least a year before the hospital would consider the defendant for discharge to the community. The reason for stretching it to a year has to do with the need for forensic committee meetings, for Albany's approval, and for the defendant to remain stable during the process. The doctor stated the reason these steps must be taken, that the defendant must go through the different levels of privileges, is because the hospital is dealing with someone who is not simply mentally ill, but someone who also threatened the life of others when he was sick.
Dr. Escovar testified that she is unaware of any member of the defendant's treatment team who believe that he is presently ready for discharge into the community. Dr. Escovar testified that it is her opinion, with a reasonable degree of clinical certainty, that a release order for the defendant at this time is not consistent with his welfare. The doctor indicated that it would be detrimental to issue a release order without the step progression she testified to. The doctor further testified that it is her opinion, with a reasonable degree of clinical certainty, that the issuance of a release order at this time, concerning the issues of public safety and welfare, would be risky, and could lead to a situation of the defendant's noncompliance, or use of substances and a quick relapse. The doctor pointed out that the defendant had been menacing towards others during his crime, and that even before the crime, the defendant was described as paranoid and had difficulties with some of his clients.
Dr. Escovar testified that the defendant needs to be closely supervised, and that it would be premature and risky to release him to outpatient care. The doctor stated that there is information in the defendant's chart indicating that at least twice in the past he has stopped taking his medications. Dr. Escovar stated that she believes that the proposed treatment plan for the defendant is the least restrictive plan at this time. When Dr. Escovar was asked if she believes that the defendant's judgment is impaired to such a degree that he is unable to understand the need for care and treatment in the hospital under the present course of treatment, she replied that she believes that the defendant's judgment based on his recent actions is impaired to some degree. She added, that it is not terribly impaired, but to the degree it would cause him to be incompetent in the future.
Dr. Escovar testified that the defendant acknowledges that he suffers from depression, but it has been difficult for him to accept that he also suffers from substance abuse, and that his substance abuse interacts with his other two diagnoses. The doctor stated that she believes that the defendant does not believe that he has a potential for dangerousness. She also indicated that it is her opinion that the defendant would be a danger to himself and/or others if he were discharged into the community at this time, and that it is possible that the defendant could suffer from another episode similar to the circumstances of the instant offense. The doctor continued that if the defendant is clinically stable now and free of substances, he is not dangerous. However, Dr. Escovar stated, what she cannot guarantee is given the defendant's insight into his conditions, that he would remain compliant with his medications and not use illicit substances.
At this point in the proceedings, Dr. Escovar stated that she was shocked and mortified that Dr. Reichman, in his report dated April 27, 2011, indicated that the defendant denied ever having psychotic symptoms, in that there are many entries in the defendant's chart indicating that the defendant stated on numerous occasions that he was delusional, hallucinatory, and paranoid in the past.
Upon questioning by the Court, Dr. Escovar indicated that the defendant committed the instant crimes in 2004, about 7 years ago, that he came to Creedmoor in 2007, and before that he had admissions to Long Island Jewish Hospital, and Kirby Forensic Psychiatric Center. When asked by the Court about acts of violence at Creedmoor, the doctor replied that the defendant is not a violent individual, that she has never seen him attack anybody. She stated that while the defendant was at Kirby there were reports of the defendant's paranoia, but she was unaware of the defendant committing any acts of violence. Dr. Escovar indicated that in 2004, during the crime, the defendant had a gun and aimed it at someone. He did not hit the man with it and did not fire it. The gun was taken from him, and then the defendant tried to choke the individual with his hands. The doctor stated that there have been no acts of violence on the part of the defendant at Creedmoor. Dr. Escovar testified that, despite the best scrutiny and monitoring, chemicals, such as cannibas, cocain, and Oxycodone have been found at Creedmoor. Furthermore, the doctor indicated that despite the defendant's access to these chemicals, and his failed urines, he has not manifested any violence toward anybody and has not made any suicide attempt for at least 7 years.
Upon cross-examination, Dr. Escovar testified that it is the hospital's policy that the defendant must progress through each of the levels before he is ready for discharge, and that all the patients must go through this process. The doctor testified that treatments are individualized for each patient, and possession of some contraband may cause a loss of privileges and possession of other contraband, or other infractions, may not cause a loss. Dr. Escovar testified that the marijuana that was recovered from the defendant's possession was taped under the drawers of his belongings [sic].
When asked if the defendant exhibited any inappropriate behavior as a result of the recent cocaine test [sic], Dr. Escovar indicated that the manifestation of cocaine would be exacerbation, perhaps, of psychotic symptoms which were not seen by the hospital staff. The doctor continued that cocaine withdrawal can cause tearfulness and agitation, and there was evidence in the defendant's chart of him being tearful over a number of different things. The doctor indicated that for as long as she has known the defendant, he is very content, calm, and does not burst into tears out of the blue. She has seen no signs of violence in the defendant, although the doctor clarified her statement to say that she has known him for less than a year, and during that period she has not seen him involved in any fights, and has not had any reports of violence.
Dr. Escovar testified that the strongest indication of a possibility of risk of relapse when it comes to mental illness and substance abuse is lack of insight into the condition, even denial. The doctor elaborated that in addition to the defendant denying having a substance abuse issue or being adversely affected by substances, there is a statement in Dr. Reichman's report, dated April 27, 2011, indicating that the defendant denied ever having psychotic symptoms.
Dr. Escovar testified that even though she does not believe that the defendant is ready for discharge, the decision is not up to her. The administration must concur, and if she advocated for the defendant's release, if the administration disagreed she would be overruled. Dr. Escovar testified that the defendant is clinically stable, that concerning his major depressive disorder with psychotic features, she does see any prominence of symptoms. Furthermore, the defendant has been complying with his medications.
The Court presumes that Dr. Escovar is referring to the administration of Creedmoor Psychiatric Center.
Upon re-direct examination, Dr. Escovar testified that if the defendant is out in the community he will not be subjected to the structured environment he presently has in the hospital, he will be on his own, responsible for his own actions, and would have to make determinations based on his own judgements. Dr. Escovar testified that outside in the community, the defendant is going to have free and greater access to any substances whereas in the hospital, although contraband could still be gotten, the hospital does have more control over him. Also, Dr. Escovar noted that if the defendant's symptoms would manifest themselves as a result of substances, staff would notice it if he was on the inside.
The State then rested its case.
The defense called Dr. Allen Reichman. Dr. Reichman testified that he stands by his report, dated April 27, 2011. He testified that, as reflected in his report, the defendant denied ever having psychotic symptoms. The defendant's records reflect that his diagnosis is major depressive disorder with psychotic features. Dr. Reichnman testified that the psychotic features that are sometimes seen with this condition include delusions, hallucinations, and thought disorder. Dr. Reichman testified that the defendant indicated to him that he had never suffered from delusions or hallucinations.
The parties stipulated that Dr. Reichman is an expert in the field of psychiatry.
When Dr. Reichman was asked to summarize his findings and conclusions regarding his examination of the defendant, the doctor testified that the defendant appeared to be emotionally stable and did not have any outward signs of mental illness. The doctor stated that the defendant's mood was not depressed, although the defendant did say to the doctor during the examination that he was somewhat discouraged about being in the hospital for such a long time, but the doctor did not find him to be clinically depressed. The defendant denied suicidal thoughts or urges, did not show outward signs of psychosis, did not appear to be listening to voices or seeing visions, and did not show any evidence of a thought disorder. Dr. Reichman testified that the defendant appeared to be quite stable in terms of depression, and he did not show any evidence of apparent psychosis. The doctor indicated that the defendant's condition appeared to be pretty [sic] stable.
As to Dr. Escovar's concerns about the defendant and substance abuse, Dr. Reichman stated that his concern with regard to this is that the defendant is a man on medications. The defendant did indicate to Dr. Reichman that he intends to continue his medications as long as it is considered necessary. The doctor continued that one thing that substance abuse can do is impair the absorption of medicines like an antidepressant medicine or a psychotropic medicine. If that happens on a continuous basis, less of the medicines would enter the defendant's system. Furthermore, Dr. Reichman testified that drugs like marijuana can aggravate symptoms of mental illness.
Dr. Reichman testified that he is comfortable recommending the defendant's discharge, because at the time he examined him, the defendant denied any history of substance abuse, and in the records there was an indication that the defendant had denied it. The defendant explained to the doctor that he had a number of drug charges that came about as a result of his involvement with a limousine service, where people who hired the limousines asked for drugs, and he got drugs for them as a service. The doctor stated that he had no way of knowing whether or not this is so, but this is what the defendant told him.
Dr. Reichman testified that he was unaware of the defendant's dirty urines, and use of illicit chemicals in the hospital setting, that he did not come across that in the records. Dr. Reichman stated that apparently, based upon the testimony at the hearing that he heard, there were dirty urines that showed up on random testing. Therefore, Dr. Reichman said, he would clarify his position. Dr. Reichman explained that the defendant was discharged from Kirby four years ago at which time it was the expressed opinion of the staff of Kirby that he was not a danger to himself or others. The defendant has now been in Creedmoor for four years during which time he has not shown any evidence that he is a danger to himself or others. The defendant can receive drug counseling on an outpatient basis, and in light of the testimony he heard, it would be necessary for him to do that. With this in mind, Dr. Reichman indicated that he stands by his original report. The doctor stated that he believes that the defendant should receive drug counseling, but that he does not need to be on an impatient unit 24/7 [sic] for that purpose.
When asked by the Court if there is a problem with the defendant getting released on an order of conditions, without completing a gradual progression towards release, and before he completes all of the hospital's steps which would lead up to eventual release, Dr. Reichman stated that he thinks that the defendant has been in the hospital too long. The doctor continued that the defendant has been there 4 years, completely stable, and during that time hospital personnel have had ample opportunity to lead the defendant through the various stages they feel are necessary, and if they have not done so, that is a disservice to the defendant. The doctor testified that 4 years in a hospital for treatment for a major depressive disorder is more than what would ordinarily be considered necessary. Dr. Reichman testified that it is his opinion that whatever danger there might be in the defendant skipping a step before his release is outweighed by the harm caused by continuing to be in the hospital. Dr. Reichman continued that it is a relatively small danger in skipping those steps.
Furthermore, Dr. Reichman explained, if the defendant gets out of the hospital now and has a full program of outpatient services, including drug counseling and random drug testing, if his condition worsens, he could be readmitted. Dr. Riechman testified that he does not think that there is any reason to believe that that would happen, because the defendant has been creating dirty urines for, he does not know how long, and the defendant is not a danger to himself. The only danger is the self- defeating aspect of being involved with medications and drugs at the same time, but the defendant has not shown any periods of bad behavior even with dirty urines. Dr. Reichman testified that he believes the defendant's condition can be treated as an outpatient just as effectively as it is being treated now. The only difference is that he is in a controlled environment, but his psychiatric condition does not require that.When the Court inquired of Dr. Reichman if it is harmful for the defendant to remain in a controlled environment, Dr. Reichman testified that there is a potential for it being harmful, if it has not already been. The doctor continued that it could be harmful because the defendant is surrounded by people who are more mentally ill than he is, and that has some depressive potential. Dr. Reichman indicated that the defendant is in better shape than the average patient at the hospital.
Colloquy between the Court and defense counsel at this point in the proceedings indicates that prior to the offense that brings the defendant before the Court, he had been arrested in the distant past, the last conviction being in 1989. Furthermore, it was stated that the only crime constituting a threat of violence in the defendant's history was a robbery conviction from 44 years ago.
The Court notes that upon review of the defendant's rap sheet, the defendant's last arrest, prior to the instant offense, was in 1989. He was convicted, however, in April of 1990, of Criminal Possession of a Controlled Substance in the Third Degree. The defendant was sentenced to 1- 3 years incarceration.
Upon cross-examination by the Assistant Attorney General, Dr. Reichman testified that he examined the defendant one time, for a bit [sic] over an hour, that he reviewed most of the defendant's hospital records of the past year, and glanced at some prior records. Dr. Reichman testified that he did not talk to any of the defendant's treating doctors. When asked why not, Dr. Reichman replied that the doctors were not on the unit at the time that he examined the defendant at Creedmoor. Dr. Reichman stated that the purpose of examining the defendant was to render an opinion as to the defendant's present psychiatric status and whether he is ready to be discharged from the hospital.
Dr. Reichman testified that he had no reason to dispute the defendant's diagnosis that was reflected in the hospital records, of major depressive disorder. The doctor continued that the defendant seemed to be entirely symptom free. When asked if there are clinical advantages to the defendant, while still being retained at Creedmoor, to be permitted to go on unescorted furloughs into the community and then return to the hospital to be drug tested and be debriefed as to what happened when he was outside, the doctor replied that that situation was more beneficial for the hospital than the patient. Dr. Reichman explained that the hospital could then make judgments as to how well the defendant was functioning on the outside, and would be able to see if he had dirty urines, all for the purpose of deciding whether or not the defendant would function well in the community, a consideration for planning for discharge. The doctor did concede that unescorted furloughs would also benefit the defendant, in that if he felt, while in the community, any kind of stress, or had a problem that might exacerbate his mental condition, he would able to speak to the doctors at Creedmoor. Dr. Reichman stated that the defendant's father-in-law is still alive.
Dr. Reichman testified that he doubts very much that the defendant's comment regarding the instant crime, that he smelled sex in the air, indicates hallucinations. The doctor indicated that alcohol and narcotics can offset the efficacy of the medications the defendant is taking. The doctor continued that the use of narcotics and alcohol has to be frequent and continuous in order for that to happen, and if it is only occasional use, it might not happen and probably would not. Furthermore, if a patient becomes symptomatic, it could increase the chances that he can decompensate further, if he is not getting the medications he needs at the proper blood level. It is a possibility, not a certainty. Dr. Reichman indicated that if the defendant decompensates, if his condition gets worse, then it is possible that he would experience the same symptoms that were in existence at the time of the instant offense.
Upon cross-examination by the Assistant District Attorney, Dr. Reichman agreed that it suggests poor judgment on the part of the defendant for violating rules which have prevented him from attaining unescorted furloughs. The doctor continued that poor judgment is not something you keep somebody in a psychiatric hospital for, when his condition is stable. Poor judgment is part of an individual's personality, and personality is not going to change. Although behavior might change, the doctor testified that he does not believe that these are problems that need to be further addressed on an inpatient basis. Dr. Reichman continued that it indicates poor judgment when the defendant uses illegal substances when he is asked not to, because the substances exacerbate his mental illness. The doctor continued that it is a problem that needs to be treated, but that he does not know to what extent the defendant is receiving drug counseling. The doctor indicated that it was poor judgement and self-defeating when the defendant was on the precipice of unescorted privileges and he dashed it all by having a positive screen for cocaine.
The next witness called on behalf of the defense was Mrs. D., the defendant's wife of nine years. Mrs. D. testified that she and the defendant share a great marriage, that the defendant was admitted to Creedmoor in May of 2007, and before that he was in Kirby. Mrs. D. 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 Mrs. D. 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.
The Court notes that Mrs. D. has referred to the individual the defendant pulled a gun on as her father. Dr. Escovar referred to this individual as the defendant's wife's stepfather. Clearly, the individual is one and the same.
Mrs. D. 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. Mrs. D. 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.
Upon cross-examination by the Assistant Attorney General, Mrs. D. testified that when the defendant pulled the gun on her father, she took the gun away from him. Mrs. D. testified that the defendant got upset and pulled the gun on her father because the defendant saw bruises on her, and she had told the defendant that her father had beaten her. The defendant pulled the gun and made Mrs. D.'s father apologize. The defendant also accused Mrs. D.'s father of sexually touching her. Mrs. D. indicated that her father did molest her, that she had told this to the defendant, and it was not a delusion on the part of the defendant that this had happened. Her father's sexual misbehavior is what Mrs. D. did not want to discuss earlier in her testimony.
Mrs. D. testified that she had discussed with members of the defendant's treatment team at Creedmoor the reasons that the defendant pulled the gun on Mrs. D.'s father, the issue of inappropriate sexual conduct.
Upon cross-examination by the Assistant District Attorney, Mrs. D. testified that her father, who is now 86 years old, lives with her. She stated that she is now 47 years old and that she was an adult when the incidents with her father occurred. Mrs. D. continued that when the defendant pulled a gun on her father, she was living with the defendant, her father, and her sister. The witness stated that the defendant was informed by her sister, who is now 62 years old, that her father was committing the same acts that he was committing against her, against her sister. Mrs. D. indicated that the defendant saw some conduct on the part of the witness' father that he did not like. Mrs. D. stated that her mother has been deceased for many years. She continued that her sister was forced to have sex with her father, and that was conveyed to the defendant.
Mrs. D. testified that she did indicate to Dr. Siegel that at the time the defendant pulled a gun on her father, she was not bruised, that her father had not done anything wrong to her or her sister, and as a result, the doctor concluded that all of this was mental on the part of the defendant, and that there was no grounding in reality. Mrs. D. testified that she loves her husband, the defendant, and loves her father, and at the time she was trying to protect both her husband and her father. Mrs. D. testified that she was scared her family was going to fall apart, that her father would be arrested, and that it would be better to put a little shell around it [sic]. Mrs. D. continued that those things happened, that she did not say it at the time, that she wanted to protect her father, and that the defendant was treated like a mental case, which is not so. Mrs. D. testified that she did indeed convey to Dr. Siegel that nothing happened, that the doctor did not get it wrong, that she did not want those things to come out, but that they happened.
See, the report of Dr. Lawrence Siegel, dated September 19, 2010, who conducted an independent examination of the defendant.
Mrs. D. testified that she also spoke to Dr. Campion, at the time soon after the defendant's crime, who was initially retained by the defendant's criminal defense attorney to put forth the defense of not responsible. Mrs. D. testified that, at the time, she used the same strategy with Dr. Campion that she used with Dr. Siegel, that she did not convey the idea that she had been beaten, or that she and her sister were sexually abused.
Mrs. D. initially testified that she thought that the defendant had a prior psychiatric history, before this gun incident, that he was hospitalized for a psychiatric issue, and was taking psychiatric medication, however, she later testified that she was incorrect, that the defendant was taking medication for, and was hospitalized for, a physical ailment. Mrs. D. then testified that as far as she knew the defendant has never had a psychiatric history before the gun incident, and that when she indicated to Dr. Siegel, as reflected in his report, that the defendant was not taking his medications, she meant medications relating to a physical condition. Mrs. D. testified that she did not convey to Dr. Siegel that the defendant had a history of mental problems.
Mrs. D. conceded that she told the defendant, at a joint meeting at Kirby Forensic Psychiatric Center, in January of 2006, in the presence of others, that her father never sexually abused her. Mrs. D. explained that she stated this to protect her father, and not wanting to say what had happened, but those things did happen. Mrs. D. stated that it is not unreasonable for the doctors to have concluded that the defendant was delusional. She continued that the defendant was willing to stay in a hospital, defined as a mental patient, to help his wife, to try to protect her from her father, and to be supportive of her desire to not see her father go to jail.
When the Court inquired of Mrs. D. if it was true that until this day, there was no way that the doctor or hospital could know that the defendant was not suffering from delusions, Mrs. D. stated that it came out at some point, when the defendant was at Creedmoor or Kirby, that she told the hospital team that it was not delusions the defendant was suffering from. When asked by the Court why would the doctors keep the defendant in the hospital if she had corrected the record, Mrs. D. replied, "for no reason" (see, the minutes, dated May 13, 2011, at page 145, line 24).
Mrs. D. testified that she was aware that her sister reported to the police that the defendant had pulled a gun on her, on January 22, 2004. Mrs. D. also testified that the defendant has been arrested prior to the incident in question, and that she is aware that he was arrested in February 1998 for bank robbery, that he was sentenced in June of 1998 to 18 months to 3 years in prison, and that he had prior felony charges in August of 1989 for drug offenses and was sentenced to 1-3 years in prison, and was released from confinement in August of 1992. Mrs. D. testified that it occurred to her that if the defendant was charged criminally for this gun case, he could get a longer sentence because of his prior criminal cases. Mrs. D. stated she recalls there was discussion concerning her husband copping a plea [sic] before his case proceeded down the psychiatric route, but she can not recall what kind of plea he was offered, or what was the amount of jail time.
The Court notes that the minutes reflect that the witness stated that the defendant was sentenced in 1988, however, this is clearly a typographical error (see, the minutes, dated May 13, 2011, at page 148, line 18).
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" (see, the minutes, dated May 13, 2011, page 154, lines 18-19). 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 [sic] 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.
The defendant continued that when his wife got home that evening, he wanted to find out without being direct [sic]. 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.
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" (see, the minutes, dated May 13, 2011, page 158, line 25), 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 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 defendant testified that when he saw his wife, he believed her father had beaten her, but needed his wife to tell him herself. Later, the defendant's sister-in-law told the defendant that her father had beaten his wife because her father thought the defendant's wife was the one who told him about the sexual abuse, and the defendant's wife did admit this to be true.
The defendant testified that he then went into his father-in-law's room, went into his father-in-law's closet, took out his father-in-law's cowboy pistol, pulled his father-in-law out of bed, and told his father-in-law that he was going to die unless he apologized to the defendant's wife. His father-in-law then apologized to both the defendant's wife and to her sister, and the defendant gave the gun to his wife. The defendant stated that he turned to his wife's sister and said to her that if she ever told him anything about his wife again, he would shoot her. The defendant said he was not really going to shoot his sister-in-law, but that he wanted her to know how serious he was about this stuff [sic]. The defendant testified that a whole week went by and nobody called the police. And one morning, his bedroom door was kicked down by the police, who surrounded him and asked him where the guns were.
The defendant testified that his father-in-law told his sister-in-law to tell the police that the defendant threatened to kill her, and that his father-in-law did this to get the defendant out of the house. The defendant indicated that his father-in-law never told the police anything about the defendant putting the gun to his head or about making him apologize. His father-in-law made it seem as if the defendant only threatened his sister-in-law. The defendant indicated that he turned over the gun, he was arrested, and he reported to the police what had been going on in the house. The defendant indicated that the police said they would arrest his father-in-law if his wife came forward, but that the defendant would have to "go away for a few months for the pistol" (see, the minutes, dated May 13, 2011, page 163, line 12).
When the defendant's wife came to the precinct, and the police asked her about her father, she denied everything. The defendant testified that he knows why she did this, that she was frightened, embarrassed, and ashamed. The defendant continued that he was sent to Rikers Island, to a mental health unit. The defendant testified that the reason he was "taking mental health drugs" (see, the minutes, dated May 13, 2011, page 163, lines 24-25), was because at the same time his neck was broken, he found out that he had colon cancer and diabetes. The defendant stated that he became depressed, was referred by his medical doctor to a psychiatrist, and he was put on Effexor and Risperidone and that these are the same medications he was taking before he was hospitalized, and that he is still taking them today. The defendant testified that when he was at Rikers Island, personnel there took him off the medications, but when he got to Kirby, they put him back on the medications.
Effexor is the brand name for Venlafaxine. See, footnote 12 and www.nlm.nih.gov.
When asked how his case went from a criminal case to a psychiatric case, the defendant explained that he told his wife that he was going to trial, because the People offered him a plea of five years incarceration, and he felt that he did not deserve that sentence. All he did was stick up for his wife, and that any man would do the same under these circumstances. The defendant testified that his wife asked him not to go to trial, as she did not want her father to get locked up [sic] and the neighbors to find out. The defendant stated that then he was sent to the psychiatrists, that he thought about it, and decided to accept the five years. By then the doctors' reports were in, the defendant stated that he was not permitted to go to trial, and he was given the insanity plea. The defendant testified that he agreed to pursue the insanity plea, reluctantly, in order to save his wife from everything that she was afraid would happen.
The defendant stated that he did not tell the doctors things which would assist in an insanity defense. He told them this same story consistently. The defendant stated that he did not get a copy of the doctors' reports and that he was shocked to hear what they came up with. The defendant indicated that he gave the doctors a truthful account of what had happened, but since no one backed him up, not his wife, not his father-in-law, not his sister-in-law, and he was on psychiatric medications, the doctors figured that he was delusional, that he assaulted his father-in-law upon a fixed false belief that the man had beaten and sexually assaulted his wife and sister-in-law.
The defendant testified that he was at Kirby for six months, then went to court for the plea, and then was sent to Creedmoor. The defendant testified that he remembers the proceeding where he pled not responsible by reason of mental disease or defect. The defendant testified that he had no significant problems at Kirby, and that he got to Creedmoor on May 7, 2007. The defendant testified that since he has been at Creedmoor, he has had no fights, he does not disrespect the staff, or do anything against the rules. The defendant testified that he always does what is asked of him and what he is told to do. The defendant testified that he was sent to the MICA ward even though he does not have a substance abuse problem. The defendant stated that when he was granted level two escorted privileges, home visits, he was not permitted to go home. He was only permitted to meet his family at a McDonald's. The defendant indicated that he was upset, because he wanted to go home like other patients with the same level of privileges. The defendant stated that he complained to his lawyer, Mr. Bogin, who wrote a letter on his behalf to the hospital administration, and then the administration got uptight [sic] with the defendant, thinking he was making trouble.
Upon questioning by the Court, the defendant indicated that his home was the home he lived in with his wife, father-in-law, and sister-in-law, and that his father-in-law owns the house. When asked if home visits would have entailed going to the home of his father-in-law who allegedly abused and beat up his wife and sister-in-law, the defendant replied that he has daughters, a sister, and his mother who also live in Queens, in different residences, and he would have been able to go to those homes. The defendant said that should he be released, he would not live in the same house as his father-in-law. Furthermore, the defendant stated that he and his father-in-law have since talked and have made their peace.
The defendant testified that there was a patient at the hospital, who, upon returning to the hospital from his furloughs, would return high. The defendant stated that the hospital staff thought, because the defendant had money and a cell phone, that the defendant was dealing drugs on the unit. The defendant indicated that they just jumped to conclusions.
The defendant testified that there came a time his wife had a meeting with a team of his doctors, and his wife became extremely upset. The next day, the defendant testified, he had a conversation with a Dr. Karp, who indicated to him that the doctors now knew the truth, that he has been telling the truth, and that they would try and get him out of the hospital as quickly as possible, but that he still had to go through the levels. The defendant testified that this occurred in September or October of 2007.
The defendant continued that although he was moving through the levels quickly, his escorted home visits were cut down in frequency due to budget cuts. The defendant was upset by this, because other patients were seeing their families more frequently than he saw his. The defendant felt that the hospital staff had lied to him and were treating him like a troublemaker because he had his lawyer write a letter on his behalf.
The defendant testified that he has questioned the staff about his medications, has complained to them that he had nothing constructive to do on the ward, and that he was in pain from his injury. The defendant continued that, despite this, he does not disrespect the staff or other patients.
The defendant testified, regarding the recent positive urine, that he was told he had to have a urine test every day. One day, he was outside having brandy and smoking cigars with a visitor, and afterwards, was nervous about giving urine. The defendant testified that he decided to buy urine, which turned out to have tested positive for cocaine. The defendant stated that he does not use cocaine and does not drink heavily.
Upon cross-examination by the Assistant Attorney General, the defendant testified that he pled not guilty due to mental disease or defect because his wife begged him not to proceed with a criminal trial because she was afraid of the family's dirty laundry being aired in public. The defendant also indicated that when he decided he wanted to go to trial, he was told that it was too late, the doctors' reports were in, and that he had to take an insanity plea. The defendant testified that his prior felony convictions had nothing to do with his decisions regarding the instant case. The defendant stated that he has only told the truth.
When the defendant was asked what was the mental illness he suffered from, that he based his not responsible plea on, the defendant testified that he did not want to take that plea, that he was forced into it. The defendant stated that he was never mentally ill in his life, that he took the medications because he was feeling so bad about his physical ailments, and that he needed a professional person to talk to about these things. The defendant testified that he does not believe that he has a mental illness, but does believe that he gets depressed. The defendant continued that he gets depressed seeing all the patients at Creedmoor who he can not help.
The defendant testified that he does not believe that he presently suffers from mental illness. When he was asked if he presently suffers from any symptoms related to mental illness, the defendant stated, again, that he sometimes feels depressed because of his situation at Creedmoor, due to the fact that he is around so many other patients that have problems, that it bothers him and makes him depressed.
The defendant testified that the medications he is currently taking, Effexor and Risperidone, are the same medications that he has been taking for many years, that were prescribed for him when he was referred to a psychiatrist by his medical doctor, before he entered Creedmoor, and before the instant offense. The defendant indicated that when he was at Kirby, he was told that taking his medications would look good for forensic [sic] and for Albany. When asked if the medications benefit him, the defendant replied that he did not know if he could answer that question. The defendant explained that when he started taking the medications in 2002, they helped him to relax. The defendant continued that maybe one day he would like not to take them, but as long as the doctors are telling him to take them, he will, because he does not want it to look like he is losing control.
The defendant testified that in 2003 he was hospitalized for having suicidal thoughts, for feeling bad, as if he had no worth. The defendant indicated that Dr. Siegel's report, dated September 19, 2010, which referred to that earlier hospitalization, indicates that the defendant has a history of anxiety and depression, and that at the time of this hospitalization the defendant was hearing voices whispering. However, the defendant stated that he was not hearing voices. The defendant explained that when his neck was healing, he would have blackouts, but before he would blackout, he would hear a whisper sound. That is why he was put on Risperidone, to ease that whisper sound. The defendant testified that he was told that once his neck healed everything would go back to normal. And it did.
The defendant indicated that he checked himself into the hospital.
The defendant testified that during that earlier hospitalization he was treated with medications, Effexor and Risperidone. The defendant indicated that he was also taking Tegretol, not for psychological issues, but for his blackouts. The defendant stated that he took the Effexor and Risperidone because his doctor thought it would take the edge off of how he felt, it would make him more relaxed and more able to handle the various physical problems that he was having. It would be better than sitting around thinking he had no worth.
When he was asked if he sees himself as suffering from mental illness, the defendant replied that he sees himself as missing his five daughters, and his six grandchildren. The defendant stated that he feels like he has been taken away from reality and put in a place where nothing but insaneness [sic] is going on, that he must adjust to it, and act like he fits in, although it is very hard, because he can't fit in. The defendant continued that "any doctor or staff, anyone knows I don't fit into it. But they still try to take the things that was said, or someone else said, and try to take and find some kind of way to make me look like I'm delusional. I'm ready to go home. I've always been ready to go home from day one. Nothing's changed about what I've said. I am still the same person" (see, the minutes, dated May 13, 2011, page 217, lines 5-10).
The defendant testified that he does not know what his present diagnosis is at Creedmoor Psychiatric Center, but he did hear the testimony of Dr. Escovar indicating that his diagnosis is major depressive disorder. The defendant testified that Dr. Escovar does not know him, and that she does not talk to him. The defendant stated that the doctors who know him should have testified, and that many of the things that Dr. Escovar testified to, he does not know where they came from. The defendant said that he was disappointed in her, but will still respect her.
The defendant stated that he was examined by Dr. Siegel in May, 2005, but he has not, as indicated in the doctor's report of September 19, 2005, been hearing voices on and off since the 1960s. The defendant said that he does not suffer from the diagnosis of the hospital, major depressive disorder in remission, but that he does feel depressed sometimes because of his surroundings. When asked if he believes that the medicines have any impact on him, the defendant replied, "Im not sure, because I just feel so nice. I feel so healthy, I feel so sharp. I just feel I need to get out and create a business again. And I don't know if the medicine is helping me or is not helping me. But I do know I'm not going to stop taking it. You know, I will continue when I get out to take the medication and deal with a psychiatrist until that time when the psychiatrist said that I don't need to take it. Then that would be when I will stop taking it" (see, the minutes, dated May 13. 2011, page 222, lines 3-11). The defendant indicated that he will take the advice from the doctor.
Dr. Siegel examined the defendant on two occasions. Once, in May of 2005 for the District Attorney's Office in order to determine the defendant's mental state at the time of the offense, and again in July of 2010 as an independent examiner.
The defendant testified that he does not consider himself to be a dangerous person, although grabbing someone by the throat and pointing a gun at them is a dangerous act. The defendant testified that when he committed that act in 2004, the person that he did it to, who beat up his wife, had to realize how it felt to be helpless. The defendant stated that he wanted that person to feel it, and to apologize to his wife. He was not going to kill him, just make him feel what his wife had been feeling. The defendant said that he felt that he was breaking the law, but he also felt that the incident was over with. He never thought the police were going to come.
Upon cross-examination by the Assistant District Attorney, the defendant was questioned regarding a report by a Dr. Luther at Kirby, dated January 30, 2006, which referenced another report by a Dr. Martin (see, the minutes, dated May 13, 2011, page 225). The defendant testified that, regarding what he told Dr. Martin in 2002, he presented to the doctor with a history of anxiety and depression. The defendant testified, however, that he did not complain to Dr. Martin about auditory hallucinations of whispering voices, but that he heard a whispering sound related to his broken neck. The defendant testified that he did not tell Dr. Martin that he had developed seizures in 1987, that he once found himself in a car in pajamas with keys on his lap awakened by a car horn, that he was paranoid about his customers in his limousine business, or that he had suicidal thoughts in prison in 1997. The defendant testified that Dr. Martin recommended for him the Effexor, Risperidone, and the Tegretol for the blackouts. The defendant continued that in March of 2003, he purchased alcohol and drugs in order to overdose, that he got into his car and fell asleep from the alcohol, and that he then checked himself into the hospital.
A copy of the report by Dr. Charles Luther is located in the court file.
The defendant testified that he did not report to Dr. Luther, at Kirby, hallucinations of hearing voices since his twenties. The defendant stated that he also did not report to Dr. Luther past visual hallucinations of seeing people and furniture the size of a wrist watch, that only sleep helps the hallucinations, and that they started in his twenties. The defendant continued that he did describe to Dr. Luther odors that he would smell around the house, and that he described to the doctor olfactory perceptions of the odor of sex [sic] while living at home; that he would smell the odor of sex after his father-in-law would have sex. The defendant continued that his father-in-law would not own up [sic] to the fact that he was having sex with his daughters, so he told the defendant that he was probably smelling dirty underwear.
The defendant also stated that he told Dr. Luther that on two occasions he found urine on his freshly dry cleaned clothes. The defendant explained that after he confronted his father-in-law about the sex, his father-in-law would urinate on his clothes, and get his sister-in-law to do the same thing. Furthermore, the defendant stated his father-in-law, when confronted with that fact, paid to dry clean the defendant's clothes, which he and the defendant's sister-in-law soiled. The defendant also testified that his father-in-law took a razor or box cutter and cut up many pairs of his new shoes. The defendant testified that when he showed the shoes to his wife, she told him to leave it alone. The defendant stated that he did, until his father-in-law hit his wife. When his father-in-law hit his wife, that is when he did what he did.
The defendant testified that in the beginning of his relationship with his criminal defense attorney, Mr. Gordon, they did not get along very well. The defendant stated that he wanted a trial, wanted his attorney to get his father-in-law to come to court, but his attorney wanted to arrange a plea. The defendant conceded that he used to shout at his attorney to make him understand the truth.
Regarding the defendant's involvement with a bank robbery, the defendant testified that his nephew robbed a bank, and that the defendant put him on a train so he could run away. The defendant stated that he was arrested eight months later, and was charged with obstruction of justice. The authorities told him they would have found his nephew sooner had he not intervened. The defendant testified that he was sentenced to 18 months in federal prison, served ten months, and then served the other eight months in a halfway house. The defendant stated that he did not rob a bank, that his nephew did. The defendant said that he was an accessory after the fact of a bank robbery [sic]. The defendant continued that he was required to pay $25,480 in restitution as part of his plea, and that he is still paying that now. The defendant elaborated that his nephew got killed, but that he is still forced to pay the money every month.
This arrest and conviction is not reflected on the defendant's rap sheet contained in the court file.
The defendant testified that he did not tell Dr. Luther that he made up a substance abuse problem so that he could get into a mentally ill chemical dependent program [sic] so that he could get out of Rikers Island.
The defendant stated that he is currently taking Effexor and Risperidone, but he does not think he needs these medications. The defendant continued that he had been taken off these medications when he was at Rikers Island, but when he was at Kirby, he was put back on them, and has been on them continuously since he was at Kirby. The defendant stated although he has never been taken off them again, it has been cut down somewhat [sic].
The Court presumes that the defendant is referring to his dosage.
Upon re-direct examination, the defendant indicated that he will comply with any order to continue taking the medications if he is released. The defendant acknowledged that the medications do help him with his feelings of depression, and he continued by stating that when he gets out, he will stay on the medications, and will follow the instructions of the therapist he will be seeing, as to what he should do. The defendant stated that he will continue to take any medications until his therapist or psychiatrist feels that he does not have to take them anymore.The defense then rested its case.
The State re- called Dr. Escovar as a rebuttal witness. Dr. Escovar testified that she was present during the entire testimony of the defendant, and his wife. The doctor testified that after hearing the defendant's testimony, and after hearing the testimony of his wife, and after being present during the entire court hearing, she continues to maintain, based on the evidence in the chart, that the defendant does have a mental illness. Furthermore, the doctor indicated that she would question whether someone who absolutely feels that he has no mental illness and, no symptoms, would ever take medication because a physician says so. When the Court commented to the doctor that perhaps an individual would do so to gain his release, the doctor stated that the defendant's symptoms pre-date the instant offense.
Dr. Escovar testified that it is still her opinion that at the time of the instant offense, the defendant was suffering from a mental illness. When the Court asked the doctor if the defendant's belief that his father-in-law was having sex with his wife was a psychotic delusion, Dr. Escovar replied that that was a delusion mentioned by others. The doctor testified that she never heard the defendant say that he was delusional about that or that it was a fixed false belief. The doctor continued that the defendant has had hallucinations in the past, and there is an indication in his chart that there was a period that the defendant felt he did not need to be on medications, and during his admission at Creedmoor, he stopped taking them for a month and became paranoid again.
Dr. Escovar testified that mental illness sometimes has a cyclical quality, so that there are cycles in which an individual may appear to be fine, but there is a very good possibility of a recurrence of symptoms if the person is not maintained on medications throughout the natural course of the illness. The doctor stated that the defendant appears to be fine, but the defendant is on medications. The doctor stated that the defendant's present diagnosis is major depression with psychotic features in remission. Dr. Escovar explained that remission means it is fine now, it is treated, so there are no significant active symptoms that impair his functioning at the present time, however, it could come back.
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, Dr. Escovar commented "for a condition that he doesn't believe he has" (see, the minutes, dated June 10, 2011, page 267, lines 8- 9).
Dr. Escovar testified that the defendant's symptoms of his psychotic condition, the major depressive disorder, are in remission, and those symptoms include irritability; lack of energy; suicidal thoughts; difficulty concentrating, fulfilling his occupational function, running a business, taking care of daily activities, and providing for his wife. The doctor continued that the reason these symptoms are presently in remission is because of his medications. The doctor indicated that the defendant would be required to take his medications should he be discharged, and if he stopped, there is a good possibility that the symptoms would reemerge and a much higher possibility that the symptoms would reemerge with the use of substances.
Dr. Escovar testified that although the facts of the underlying case have a bearing as to the defendant's clinical situation, since the witnesses testified to so many different versions of events, and the reports speak to different events that led to the instant offense, she is not entirely sure what to believe. The doctor stated that her present diagnosis does not just rely on the circumstances of the instant offense, but also on what happened to the defendant while he was hospitalized at Creedmoor, and at other hospitals, as well as the historical data and records from other facilities, doctors, and experts.
Upon questioning by the Assistant District Attorney, when asked if it would be consistent with the public welfare and safety of the community to release the defendant, Dr. Escovar testified that she believes that the defendant still has more work to be done as it pertains to his use of substances and its impact on his depressive condition.
The doctor testified that there has always been some ambiguity surrounding the underlying facts of this case, that hospital personnel have not spoken to the defendant's father- in-law or sister-in-law. Dr. Escovar testified that by talking to these family members the hospital would see how the relationship between the defendant and his father-in-law has evolved, and how the treatment plan might be affected if the defendant returned to live with his wife and her family.
The State then rested its case, and the defense remained rested.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
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 (see, People v. Mooney, 20 Misc 3d 1131(A) [2008]). The defendant would be subject to an order of conditions (see, CPL 330.20[12]), 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 (see, CPL 330.20[1][n] and [13]). Furthermore, a violation of the order of conditions will subject the defendant to recommitment to the hospital and to the custody of the Commissioner (see, CPL 330.20[14]). 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 (see, In the Matter of David B., 97 NY2d 267 [2002]; Leon R. V. Palmer, 266 AD2d 218 [2nd Dept 1999]; In re Jerriell O., 288 AD2d 313 [2nd Dept 2001]).Statutorily, the terms "dangerous mental disorder" and "mentally ill" have their 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, 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 judgement is so impaired that he is unable to understand the need for such care and treatment".
"The term "mental illness" as defined in Mental Hygiene Law [section] 1.03(20) means an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation" (see, Jamie R. v. Consilvio, 6 NY3d 138, 143 [2006]).
Since the defendant was previously adjudicated non-dangerous, the relevant statute in this 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" (see, In the Matter of David B., 97 NY2d 267, 277 [2002].
Furthermore, in In the Matter of David B., the Court of Appeals noted that although "the word dangerousness does not appear in the statute, the constitutionally required element of dangerousness to oneself or others is subsumed in the language of the provision" (see, In the Matter of David B., supra, at 277). Factors relating to dangerousness satisfy due process concerns before an individual may be committed. When considering the above listed characteristics warranting retention of a defendant in a non-secure facility, a defendant's "history of suicidal tendencies and an inability to cope with release" as well as a "history of substance or alcohol abuse" and "the effects of medication" are factors demonstrating dangerousness, which "is not coterminous with violence", and therefore support retention (see, In the Matter of David B., supra, at 278- 279).
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 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" (see, In the Matter of David B., supra, at 278). 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.
Initially, the Court will address the second characteristic of the term mentally ill, as described by the Court of Appeals, to wit, whether care and treatment of the defendant is essential to his welfare. It is not unreasonable to conclude that the defendant does need care and treatment, in that he suffers from a major depressive disorder, with psychotic features, currently in remission. Dr. Escovar contends that the defendant's disorder is in remission due to his current regimen of medications. Dr. Reichman and Dr. Seigel appear to agree that the defendant's medications are important to his mental health. Drs. Escovar, Riechman, and Seigel also appear to agree that without his medications, the defendant would no longer be in remission. Furthermore, the evidence demonstrates that the defendant has a significant history of mental illness, dating back many years. Although the defendant himself downplays his suffering, explaining that he never heard voices, just whispers, and that he had benign feelings of low self-worth which caused him to only need to talk to someone professionally who could help him, the truth of the matter is, and defendant would benefit by realizing this, that he does indeed suffer from mental illness, and has for some time. The defendant has had prior suicidal thoughts, has had a prior psychiatric hospitalization, and has had prior feelings of, among other things, paranoia, suspicion, agitation and depression. By receiving his essential treatment, the defendant will hopefully remain, as far as his mental illness is concerned, symptom free. Accordingly, the State has demonstrated this requirement justifying retention.
It is clear from the record in this case that the defendant also suffers from a slew of physical ailments and substance abuse issues.
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 Dr. Escovar and Dr. Reichman. 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, Dr. Escovar testified that the defendant requires further inpatient care to achieve this goal, while Dr. Reichman testified that the defendant's medication regimen can be successfully maintained upon his release.
The Court is persuaded by Dr. Escovar's conclusion that the defendant should not be released at this time. Despite the testimony that the defendant has indeed been taking his medications consistently, there is a real threat to their continued success, and that threat is the defendant's apparent drug use. The Court finds upon review of the evidence in this case, that the defendant is indeed using illicit substances. The Court of Appeals in In the Matter of David B., 97 NY2d 267 [2002], has held that this fact is relevant to the issue of retention. The evidence suggests that substance use while on the medications taken by the defendant interferes with the medications' effectiveness. And if the medications are no longer effective, the defendant therefore would no longer be stable. If the defendant can not be trusted to refrain from using illegal substances which interfere with the medications sustaining his mental health, while living at Creedmoor, how can this Court be assured that he will refrain from their use when he no longer is so closely supervised?
See, People v. Wood, 251 AD2d 521 [2nd Dept 1998], leave denied, 92 NY2d 1041 [1998], which held that the hearing court is entitled to credit the testimony of one expert over that of another.
The Court notes that Dr. Escovar testified that the use of substances can also have an effect on the defendant physically, in that the use can cause seizures, in that he has a seizure disorder.
Although the defendant does not specifically address the marijuana found in his possession, the defendant does attempt to explain away his most recent dirty urine, by asserting that he bought the urine because he was nervous that the alcohol he was drinking would show up in his drug test. Not only does the Court find the defendant's excessive consumption of alcohol in and of itself troubling, as the testimony indicates that alcohol also interferes with the effectiveness of the defendant's medications, but the fact that the defendant bought urine that just so happens to reflect cocaine use strains credulity. Why would the defendant, who appears by all reports to be an intelligent man, buy urine that would guarantee him a failed drug test? The Court finds that the defendant either did indeed buy urine because he was trying to hide something worse than alcohol in his own urine from the staff at Creedmoor, or that he simply failed the drug test on his own, with cocaine use. Either way, this dirty urine, as well as its explanation, does not support in any way the defendant's application for release. For in any event, the Court is left with a defendant on medications, who needs those medications working at their full potential to maintain his mental health, using alcohol, probably cocaine, and possessing marijuana. How on earth can this individual be ready for release?
The Court notes that Dr. Escovar testified that the defendant insisted that this positive drug test was a result of lab error. See, page 12 of this opinion.
The Court notes the defense position that the defendant has never been violent, despite the dirty urine, implying that even if the defendant were using cocaine, he still is not a violent individual. The Court finds no merit to this argument. See also, footnote 30, referring to In the Matter of David B., supra, in which the Court of Appeals held that dangerousness is not the same as violence.
The defendant's flagrant disregard for the rules of the hospital also troubles the Court. Clearly, despite what may be an ease of access, illegal substances are not permitted on Creedmoor's grounds. Yet, the defendant is in possession of such substances contrary to the rules. Again, if the defendant is not following the rules of the hospital, why should the Court be assured that he will follow the rules once released? The Court notes the defense's assertion that the infractions by the defendant, such as possession of coffee and cereal are not serious, and the Court should not give them much weight. However, if the defendant, while a resident of Creedmoor, believes that it is up to him to determine which rules to follow and which rules to ignore, the Court finds little assurance that the defendant will follow any rules upon release that will help to maintain his remission.
See, this Court's decision, People v. D.W.H., 28 Misc 3d 1238(A).
The Court would also note that it appears that the defendant seems to frequently have an excuse for his actions which get him into trouble. For example, the contraband he possessed, the coffee and cereal, were not really a big deal, and the dirty urine was either not his, or was the result of a lab error. Dr. Escovar testified about the importance of the defendant taking responsibility for his feelings, admitting his drug problem, admitting his mental illness. She explained that the defendant needs to do that so that he may understand his situation and the importance of his taking his medications without illicit substances. The Court finds this testimony to be sound and extremely compelling.
The final factor in determining if retention in this case is warranted is whether, because of impaired judgment, the defendant does not understand the need for care and treatment. The Court finds that to be the case, based on the totality of the circumstances. The defendant's behavior as an in-patient resident of Creedmore demonstrates a lack of insight into his mental illness. By denying that he even has a mental illness, which again, the defendant suffered from prior to the instant offense, and denying that he has substance abuse issues, the defendant has shown the Court that he does not know or understand that he needs treatment. Furthermore, by using illegal drugs and alcohol, it is clear that the defendant does not understand the interaction these substances have with his medications and how they can reduce their effectiveness. As Dr. Escovar testified, this understanding is important to the defendant's safe release into the community, where illegal substances could be more easily obtained.
Nor does the defendant understand how the substances react with and affect his seizure disorder.
In fact, when considering the issue of retention, it must be noted that as the Court of Appeals held in In the Matter of David B., 97 NY2d 267, 279 [2002], retention may find support "by the need to prepare for a safe and stable transition from . . . commitment to release". As Dr. Escovar testified, the hospital wants to retain the defendant to further prepare him for discharge, and it is her opinion that, should the defendant make every effort to accept his illness, and its relation to his substance abuse, as well as demonstrate his commitment by having clean urines while on his medications, his discharge should become a reality in about a year's time. Furthermore, Dr. Seigel, the independent psychiatric examiner, agrees that the defendant requires additional time in the hospital. In this case, the defendant is not yet ready for a safe transition. The defendant has not demonstrated to the hospital, or to the Court, that he would behave appropriately and follow the rules in a less restrictive setting, when he has failed to do so in a more restrictive setting, namely his inpatient situation at Creedmore.
It requires no elaboration that the number of doctors contending for one position or another has been of no importance to the Court, which, obviously, must be governed by the nature and quality of the evidence.
It must also be noted that this is not one of those cases where a defendant has been denied privileges for so long, is stagnant, and is unable to safely transition into the community, because he was never given the opportunity to try. Here, the defendant had an opportunity for level four privileges and, as Dr. Escovar testified, he "blew it". The defendant was at the threshold of release, was granted unescorted furloughs, and lost the privilege because of a dirty urine. Then, there was the subsequent possession of marijuana. These actions demonstrate impaired judgment on the part of the defendant regarding his illness, his treatment, and his ability to be safely released into the community.
Compare, this Court's decisions in People v. D.D.G., 27 Misc 3d 1224(A), and People v. D.I.I, 23 Misc 3d 1118(A), in each of which the hospital was directed to release the defendant on an Order of Conditions.
Despite his impressive credentials, the Court can not say that it was swayed by Dr. Reichman's testimony. Dr. Reichman had only one meeting with the defendant, and it is apparent that that examination was not as thorough as this Court would have hoped. Dr. Reichman testified that he was unaware of the issue of the defendant's substance abuse, his dirty urine, or the possession of marijuana. Clearly, either the defendant did not inform the doctor of these events, or the doctor did not note them from the defendant's chart. In either instance, the doctor's opinion was based upon a lack of very relevant facts.
The Court notes that Dr. Reichman indicated that he did not complete an entire review of all of the defendant's medical records and did not interview the defendant's treating doctors.
The Court notes footnote 15, which reflects that Dr. Escovar was shocked to find that Dr. Reichman did not note the entries in the defendant's chart regarding the defendant's past psychotic symptoms.
Dr. Reichman testified that his opinion of the defendant remained unchanged, despite his learning of the substance abuse issues. He clarified his opinion, however, by stating that the defendant should receive outpatient drug treatment. The Court does not find Dr. Reichman's opinion that the defendant should receive outpatient drug treatment convincing, in light of the fact that the doctor had no detailed information about the defendant's drug use, such as how long the defendant was using substances, what specific substances he was using, or the quantity he was using. The Court finds it difficult to accept that the doctor was able to render such an opinion without interviewing the defendant or his treating doctors on this subject, reviewing the defendant's records on this subject, or learning all of the details of the underlying facts of this subject.
Furthermore, the Court is troubled by Dr. Reichman's testimony that the hospital is doing a disservice to the defendant by forcing him to progress through the levels of privileges, working towards release, for such a long period of time. For the testimony clearly indicates that the hospital is not standing in the way of the defendant's release, but in fact the defendant is doing that all on his own. The defendant, and the defendant alone, caused himself to lose level 4 privileges, and the doctor's gratuitous comment does not sway the Court.
The Court must now address the issue of Mrs. D.'s testimony. Mrs. D. testified that she, as well as her sister, were in fact sexually and physically abused by their father, and when the defendant, her husband, was arrested, out of fear for her father, she lied to the police and the doctors, and insisted that the abuse had not taken place. Thus, the doctors, as well as others in the criminal justice system, concluded that the defendant was delusional. Mrs. D. now asks the Court to believe that that is not true, that her husband is not, and was not, delusional.
Mrs. D.'s testimony has created a unique aspect to this hearing. Essentially, Mrs. D.'s testimony raises questions as to the initial validity of the defendant's "not responsible" plea (see, CPL 220.15), and to the doctors' claims that the defendant's beliefs, regarding his wife and sister-in-law having sex with their father, are delusions.
As Dr. Escovar indicated, we now do not know what to believe. Was the defendant truly suffering from delusions regarding his wife's family at the time of the incident? Is Mrs. D. trying to manipulate the Court now into releasing her husband? The Court finds that in analyzing this situation, it must not lose focus on the true issue at hand, namely, is the defendant presently mentally ill and in need of retention?
Initially, the Court finds that none of the parties, including the defendant himself, are requesting that the Court vacate the defendant's not responsible plea. They are prepared to stand by that plea. Based upon those representations, as well as upon the presumption of regularity, the Court is not prepared, sua sponte, to vacate the defendant's plea. The Court does not find, at this point in time, enough solid evidence to find that the defendant committed a fraud upon the court when he entered his plea.
See and compare, People v. Lockett, 121 Misc 2d 549, 558 [1983], where the Court, Juviler, J., held that "the court was empowered to set aside the defendant's [not responsible] plea on the basis of documentary evidence that he had defrauded the court". The defendant in this case claimed posttraumatic stress disorder caused by his service in the United States Air Force in Vietnam, and yet it was discovered that the defendant was never in Vietnam.
The defendant and Mrs. D. indicate that the defendant was not delusional at the time of the plea, and that the defendant pled not responsible in an effort to spare Mrs. D. the potential trauma of a trial. However, it must be noted that these claims of a married couple are unsupported. Although one would not expect the defendant's father-in-law to substantiate the defendant's and his wife's claims, one would certainly expect the defendant's sister-in-law to be called as a witness. She was not, and the defendant and his wife offered no other proof that convinces the Court that it should be an activist looking for combat and vacate the defendant's plea on its own motion.
See, Mayberry v. Pennsylvania, 400 US 455 [1971].
In the case of fraud, the court has the power to set aside a guilty plea without the defendant's consent. See, People v. Rubendall, 4 AD3d 12 [2nd Dept 2004].
That being said, the Court is concerned that this underlying issue will effect the defendant upon his eventual discharge from Creedmoor. As Dr. Siegel recommends in his report dated September 19, 2010, this Court strongly urges that the defendant and his family sit down with the defendant's doctors at Creedmoor and discuss their issues. For they need to figure out a way to get along with each other upon the defendant's release, and the doctors need to determine how their relationship, as well as the incidents leading up to the defendant's arrest, affect the defendant's mental health.
Furthermore, this Court also strongly recommends that all of the parties in this case, including the District Attorney, the hospital, and the defense team, fully investigate this matter and convince themselves that a fraud was indeed not committed on the court when the defendant entered his plea. For as officers of the court, the attorneys representing each party must honor their "professional responsibility to protect the fairness and integrity of the judicial process" (see, National Broadcasting Co., Inc. v. Cooperman, 116 AD2d 287 [2nd Dept 1986]).
The Court notes that a "defendant's right to effective assistance of counsel includes defense counsel's reasonable investigation and preparation of defense witnesses" (see, People v. Jenkins, 84 AD3d 1403 [2nd Dept 2011]. See also, this Court's decision, People v. D.J.H., 32 Misc 3d 1231(A).
See, Rules of Professional Conduct, Rule 8.4, "A lawyer... shall not... engage in conduct involving dishonesty, fraud, deceit or misrepresentation".
See also, footnote 2 of this Court's decision, People v. Kahn, 26 Misc 3d 1211(A), wherein the Court stated, "lawyers serve not only as representatives of their respective clients but as officers of the court, and have a professional duty to protect the integrity of the court and its processes".
Therefore, the Court finds that the issue of Mrs. D.'s testimony, regarding whether or not she and her sister were in fact physically and sexually abused by their father, is not relevant at this time to the central issue at hand, namely, whether the defendant is presently mentally ill and in need of retention. The Court must answer this question in the affirmative.
Based upon the above discussion, and the entire record of this case, the Court finds that the 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 Dr. Escovar opined that the defendant, hopefully, could be ready for a change from his inpatient status at Creedmoor.
However, that retention period would not preclude a motion, which could be made immediately, to set aside the "not responsible" plea, nunc pro tunc, ab initio, on the ground of fraud or mutual mistake of law or fact. See, footnotes 42 and 44 supra, and accompanying text.
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This constitutes the decision and order of the Court.
The Clerk of the Court is directed to distribute copies of this decision and order to the attorneys representing the parties, and to the defendant himself.
WILLIAM M. ERLBAUM, J.S.C.