Opinion
No. 222/2008.
2010-09-17
The PEOPLE of the State of New York v. D.W.H., Defendant.
Bernard Brady, Esq., for Defendant. Assistant Attorney General Nathan Brill, for The State.
Bernard Brady, Esq., for Defendant. Assistant Attorney General Nathan Brill, for The State.
WILLIAM M. ERLBAUM, J.
On November 7, 2004, the defendant was driving his vehicle southbound while in a northbound lane, into oncoming traffic, at speeds of over 100 miles per hour. A police officer was injured during this incident.
The defendant was charged with Reckless Endangerment in the Fourth Degree, Criminal Mischief in the Fourth Degree, and Resisting Arrest.
At the time of the crime, the defendant was 46 years old, as his date of birth is [redacted]. Thus, he is now 52 years old.
The defendant subsequently entered a plea of not responsible by reason of mental disease or defect. 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. He was subsequently confined in a secure facility pursuant to CPL 330.20. After a hearing conducted on a later date, the defendant was found, although mentally ill, to no longer have a dangerous mental disorder, and a transfer order, dated January 10, 2008, was issued by the Supreme Court, Orange County ( see,CPL 330.20[8] and [ 9] ). The defendant was transferred to Creedmoor Psychiatric Center, from Mid–Hudson Psychiatric Center, on January 25, 2008. Since the defendant has been in the custody of the Commissioner, several orders of retention ( see,CPL 330.20[8] and [ 9] ) have issued.
These charges were encompassed in Orange County, N.Y. indictment number 114/2005.
The defendant is currently still a patient, and resident, of Creedmoor.
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 March 5, 2009, for a subsequent two-year retention order.
The defendant is opposed to retention and is seeking his conditional release
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 N.Y.2d 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 N.Y.2d 98, 102 [1995] ).
in this case were unable to work out a settlement as to this issue,
The defendant is represented by private counsel. The State's interests are represented by two different offices. The Orange County District's Attorney's Office represents the People of Orange 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 in this type of hearing. In fact, in this case, the Office of the New York State Attorney General had authority to act on behalf of, and in the stead of, the Orange County District Attorney's Office, which was not present at the instant hearing.
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, August 5, 2009, April 23, 2010, and June 4, 2010. The defendant's entire medical record, including reports written about him, were admitted into evidence for each side to use in questioning the witnesses and in making argument to the Court.
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.
At the hearing, the State called Dr. Roosevelt Clerisme, and the defense called Dr. Frank Dattilio. The reports written by the doctors, discussed throughout this hearing, are contained in the court file. The Court will now summarize the relevant testimony elicited at the hearing.
The first witness called by the State, and questioned by the Assistant New York State Attorney General, was Dr. RooseveltClerisme. Dr. Clerisme testified that he is a psychiatrist at Creedmore Psychiatric Center, and that he has been the defendant's treating psychiatrist since January, 2008.
At this point in the proceeding, the Court read into the record Dr. Clerisme's medical report regarding the defendant, entitled “Clinical Summary for Court Order of Retention”, dated January 5, 2009. Said report was marked in evidence as State's exhibit 1.
Dr. Clerisme testified that it is his opinion, with a reasonable degree of medical certainty, that the defendant suffers from a mental illness, to wit, schizophrenia, paranoid type. The doctor elaborated that now that the defendant is on medication, he does not suffer from florid delusions.
However, the doctor indicated that when the defendant is off of his medication, he becomes very delusional and will act on those delusions. Dr. Clerisme also indicated that he has seen evidence of those delusions of false ideas in his own observations of the defendant. Dr. Clerisme testified that the defendant does not currently suffer from auditory or visual hallucinations, and is unaware of any past hallucinations suffered by the defendant.
Such delusions included wanting to call the president and warn him about impending nuclear attack, and believing that a security officer was a KGB agent.
A delusion is a false idea, such as a belief by the person having one that the police are following him; a hallucination is sensory in nature, and is a false perception of objects or events, such as seeing spiders crawling on one's arm. See, www.healthyplace.com.
Dr. Clerisme testified that hospitalization is essential to the defendant, “considering his history and the dangerousness and considering his fluctuation of mood and the fact that he not only will have false beliefs, he acts on his false beliefs” ( see, the minutes, dated August 5, 2009, page 34, lines 1–4).
He continued that the defendant's judgment is so impaired that he is unable to understand his need to receive care and treatment in the hospital. The doctor explained that the defendant does not feel the need to progress through different steps working towards discharge, that he has misrepresentations [sic] that people are treating him differently because of his color, that he becomes abusive whenever his beliefs are questioned, that he does not cooperate with the regular minimal steps [sic]. For example, Dr. Clerisme continued, before the defendant would be permitted unescorted privileges outside of the building, he needs to prove that he is able to attend different programs. Yet when at those programs, the defendant will challenge the supervisors, stating that they do not know what they are doing, and that he will walk out. Subsequently, the defendant was terminated from different programs because of his attitude.
The Court notes that at this point in the proceeding, the defense objected to Dr. Clerisme qualifying the defendant as dangerous. The defense submitted that the New York State Supreme Court, Orange County, conducted a hearing regarding dangerousness, and the defendant was found to be not dangerous ( see, the minutes, dated August 5, 2009, page 34, lines 5–12; see also, page 11, lines 11–15). The Court overruled the objection, and found that Dr. Clerisme was not speaking of dangerousness in terms of its legal categorization, regarding where a hospital may house a defendant, but in its psychiatric sense. The Court stated that it would not find that the defendant is a dangerous patient as that term is used in the law ( see, for example, dangerous mental disorder, defined in CPL 330.20[1][c] ), and that the State is not seeking to do that either. See, the minutes, dated August 5, 2009, pages 34–35).
Dr. Clerisme testified that he has witnessed the defendant showing his non-cooperativeness on the ward in other ways. The doctor stated that on July 20,
he heard a big commotion, and that the defendant was very loud, cursing the staff, and accusing them of calling him “whitey”, meaning his race. The doctor said that despite intervention by different staff members, the defendant continued the verbal abuse of the staff on the false accusation that the staff called him some racial slurs. The doctor stated that he witnessed that no racial slurs were addressed to the defendant.
The doctor did not indicate the year of the described incident, but from the context of the minutes, the Court presumes that this incident occurred the same year as the doctor's testimony, 2009.
Dr. Clerisme indicated that the defendant, although not imminently a danger to himself or others, would become dangerous without treatment. The doctor testified that if the defendant were discharged from the hospital, he doubts that the defendant would continue to take his medication. Dr. Clerisme elaborated that the defendant may continue for a while, and then stop it, as that has happened in the past. Dr. Clerisme testified that regarding the 2004 incident, which led to his instant hospitalization, the defendant had stopped taking his medication for about five weeks and became increasingly delusional, thinking that the country was being attacked by some foreign troops, and he believed that he had to alert the police. The doctor stated that according to the reports of the defendant's past history, this incident, as well as the defendant's prior psychiatric admissions, were related to the defendant being noncompliant with medication, which makes him a danger to himself.
Regarding the steps towards discharge, Dr. Clerisme testified that the defendant is currently on Level 2–A, that he has building privileges. He is encouraged to attend group discussions on the unit, to go to art therapy, music therapy, and fitness for physical training. The defendant would attend on and off, it would vary from one day to the next. The next level would be for the defendant to be allowed to go outside with staff, and then to go by himself and eventually be considered for discharge. Dr. Clerisme testified that in order to get to the next step, the defendant would need to prove that he could relate well with the other staff members and do as expected of him.
Dr Clerisme noted, at pages 29–30 of the minutes dated August 5, 2009, that if the defendant were to be cooperative with staff, medications, and therapy regimens, he would progress through the different steps preparing him for discharge much more quickly, and that he would have greater autonomy.
The doctor continued that the defendant has a choice of programs, that the staff does not dictate where he goes. The defendant has to prove he can choose a program so that he can handle the interaction, and that will allow the staff to move him to the next level. Dr. Clerisme stated that currently, on the unit, the defendant tends to get isolated. There is a group discussion every single morning about current events, and the defendant will just sit there, and close his eyes. He will not cooperate, and will move himself out of the room. Furthermore, the doctor indicated that there are other group discussions on the unit, some of which the defendant attends, and some of which he does not. Dr. Clerisme continued that whenever there is something the defendant does not like, he will get very irate and remove himself from the situation. He will also talk “baby stuff” ( see, the minutes, dated August 5, 2009, page 39, lines 12–13).
At this point in the proceeding, the Court noted, and Dr. Clerisme agreed, that the defendant is an intelligent individual, and displays a certain element of arrogance at the hospital. Furthermore, the Court noted that the witness and his colleagues have a picture of what it means to get better, a tried and true process, and if the defendant does not abide by the process their way, he will never get a favorable rating by the hospital. Dr. Clerisme stated that the hospital wants to see that the defendant is prepared to go to the next step, so that when he is released, he will continue down the right path. However, although there are choices within this framework, the defendant must proceed in a way provided by a psychiatric paradigm as to what progress means.
Dr. Clerisme testified that he has witnessed recent verbal abuse by the defendant towards the staff, such as the incident of July 20, when the defendant was very loud and abusive, using “racial slurs and physical description of the ward in charge” [sic] ( see, minutes dated August 5, 2009, page 41, lines 15–16). Dr. Clerisme also testified that there are other rules that the defendant is not following on the ward, such as those regarding personal hygiene. The doctor stated that the defendant refuses to take showers, and when advised to do so, he will accuse the staff member of not taking a shower either. The doctor indicated that it is fair to say that the defendant does not like being told what to do, and that he reacts very badly to authority. The doctor testified that this is indicative of a lack of insight.
Dr. Clerisme testified that the issuance of retention is consistent with the defendant's welfare, that he needs to be prepared towards discharge, and that if the defendant were released, the public safety and welfare of the community would be affected. The doctor stated that if the defendant is in a confined environment and he does not comply with the rules, once he is outside the likelihood of him not complying is great, and without compliance, the defendant becomes very delusional and dangerous.
Dr. Clerisme concluded his direct testimony by testifying that the defendant is also uncooperative when it comes to his treatment regarding his status as a handicapped person.
The staff was trying to train the defendant how to use a computerized leg that will allow him to ambulate freely, but he would first need to be trained on a regular leg [sic]. Dr. Clerisme stated that the defendant would rather stay in the wheelchair than go to training.
The defendant uses a wheelchair, due to the partial amputation of his left leg.
Upon crossexamination, Dr. Clerisme testified that his specialty is psychiatry with a subspecialty in geriatric psychiatry. The doctor continued that he is a medical doctor, and when asked what his experience is involving therapy of the defendant's leg, he stated that although he has general knowledge about all medical issues, that is not his specialty. Dr. Clerisme stated that he receives reports from the physical therapist, regarding the defendant's compliance, and he does not recall if anything in the defendant's records indicates whether or not the defendant has been trained on a straight leg (prosthesis) before. Dr. Clerisme continued that whether the defendant has been, or has not been, trained before, the physical therapist is not going to accept that as proof of training. For her to let the defendant use a heavy leg, she has to observe for herself that he is able to do it. Dr. Clerisme testified that, according to the physical therapist, she must document that she trained him on the regular leg before she can let him use the computerized leg. The computerized leg has been delivered to the therapist.
Dr. Clerisme testified that he has been the defendant's psychiatrist since May, 2008. The doctor stated that he sees the defendant as often as the defendant requests, at least once a week.
During these meetings the defendant would bring to the doctor's attention complaints he had regarding the staff. Dr. Clerisme explained that the defendant had many, repeated complaints that the staff treated him differently because he is white, that they accused him of things he did not do, such as smoking. The defendant would refuse to take a shower, and then accuse the staff of not showering themselves, and then tell the staff that he did not shower because they do not like him.
Dr. Clerisme also testified that he has face-to-face contact with the defendant every single day ( see, the minutes, dated August 5, 2009, page 51, lines 22–23). The Court assumes, therefore, that although the doctor has every day contact with the defendant, he only has therapeutic contact with him once a week.
Dr. Clerisme testified that his testimony is based upon his observations of the defendant, as well as reports from the staff. The doctor said his direct observations of the defendant include his behavior at meetings, where the defendant will walk out as soon as the discussion begins, or if anything is said that upsets him, or simply refuse to go.
Dr. Clerisme stated that he meets with the defendant, on average, once a week, and spends as much time with the defendant as he needs. The meeting could last 20 minutes, 30 minutes, or more or less. When the defendant is not with the doctor, he is with staff.
Dr. Clerisme testified that the defendant has been taking his medication. The doctor said that on a few occasions the defendant has challenged the dose, but after consulting, he did take it. Dr. Clerisme said that the medication has been partially effective in thwarting the defendant's psychotic delusions. When asked by the Court if the defendant suffers from any residual delusions that exist notwithstanding the medication, the doctor explained that the defendant will accuse the staff of different things, such as putting Haldol in his juice, or of spitting on him, which is very unlikely to have happened, since the defendant was in a group setting. The doctor continued that the defendant accuses the staff of doing things to him, or treating him differently, on almost a daily basis.
Dr. Clerisme testified that during the past 27 or 28 years that he has been practicing medicine, he testified in court on average, two or three times a year, and on at least one occasion, he testified against the hospital, on behalf of someone who was resisting some application made by the hospital.
The State then rested its case.
The defense called Dr. Frank Dattilio.
Dr. Dattilio testified that he reviewed, on two occasions, the defendant's Creedmore Hospital record. He also interviewed Dr. Clerisme, and reviewed Dr. Clerisme's testimony from this hearing. Dr. Dattilio stated that he interviewed the defendant on March 8, 2010, and also administered to him a battery of psychological tests. The doctor indicated that he saw the environment in which the defendant was housed at Creedmore, saw some of the activity among the residents, and spoke with the defendant's father.
A report prepared by Dr. Dattilio, dated April 5, 2010, regarding the defendant, was admitted into evidence as defense exhibit B, and is contained in the court file.
Dr. Dattilio testified that the defendant has a long history of mental illness, and he has come a long way. The defendant did well initially at Mid–Hudson, then graduated to Creedmore. The doctor stated that the defendant has been compliant with medication, and with many treatment directives. The doctor indicated that he is aware of the fact that there have been issues with the defendant regarding his being lax with hygiene, and regarding his prosthetic leg, in that it is electronic, and that he has not worn it by choice. The defendant uses the wheelchair because, although he does want to use the prosthesis, he does not want to go through the training that Creedmore is requesting.
Dr. Dattilio testified that despite these issues, it is his impression that the defendant is doing very well. The doctor stated that psychological tests show that the defendant has made excellent recovery and improvement. He is lucid, clear, free from psychotic ideation and aggression, is goal-oriented, goal-directed, and a pleasure to work with. The doctor said that it is his opinion, with a reasonable degree of psychological certainty, that retention at Creedmore would be regressive for the defendant. Dr. Dattilio stated that the defendant has made significant progress, is extremely bright, educated, intuitive, and that the doctor believes that some of the difficulties that the defendant has been having with regard to participation and hygiene are regressive features. The doctor testified that the defendant is long overdue to move to the next level, namely release under an order of conditions, and that for the defendant to remain at Creedmore, would be deleterious to his wellbeing.
Dr. Dattilio recommends that the defendant be placed in a residential facility, a semi-community situation, that would accommodate his disability, and would provide some supervision for his medication and gravitation towards release into the community. The doctor stated that he is advocating for the defendant not to be held in as an involuntary patient in a mental hospital, for an intervening step where he is out under an Order of Conditions ( see, the minutes, dated April 23, 2010, pages 17–18).
Upon cross-examination by the Assistant Attorney General, Dr. Dattilio testified that he is familiar with the privileges at Creedmore, and that he understands how they work. He indicated that he understands that the defendant will be meeting shortly with the forensics community and will be getting on-grounds privileges, unescorted, so that he can meet with his father. The doctor also indicated that he understood that the defendant has not been off Creedmore's grounds since the incident which led to his hospitalization,
and that once these new privileges are granted to the defendant, the hospital can evaluate the risk that they may involve.
The Court notes that the defendant had been first hospitalized at Mid–Hudson before he was transferred to Creedmore, so in actuality, the witness obviously meant that the defendant has not left Creedmore's grounds since his arrival there.
Dr. Dattilio testified that he understands that the defendant has a history of non-compliance with some areas, that the defendant in 1997 made a suicidal gesture by trying to cut his wrists, has had some delusional incidents, and that the defendant has had a history of mental illness since he was 17 years old. The doctor further indicated that the defendant has been difficult at the hospital, especially when dealing with help regarding his leg. The doctor explained that the defendant has been difficult because he did not feel that it was necessary to be re-trained from the beginning because he had already been trained on how to use his leg, and felt that he could use it.
The defendant lost his leg prior to the incident which resulted in his hospitalization.
Dr. Dattilio testified that he understands that at Creedmore, an individual's behavior and improvement affect whether or not one would get privileges, and that if the defendant continues to be compliant, show his insight, and comply with the staff, he will get increased privileges more quickly. The doctor testified that the defendant admitted to him, and accepts, that he has a serious mental illness, and the doctor indicated that that admission is important to the defendant's progress. Dr. Dattilio explained that he believes that the defendant has been non-compliant in the recent past because he is frustrated, because he has progressed and feels that some of the therapy is dragging him backwards, that he wants to move on, yet he is starting to regress, that he is frustrated with some treatment delays. One area in which the doctor stated the defendant has been compliant with is his medication.
Dr. Dattilio testified that there have been incidents of aggressive behavior on the part of the defendant towards his father. The doctor stated that they had arguments and, in the past, a strained relationship. However, they have a good relationship now, they talk a couple of times a day, but there where times when the defendant was very ill, when his medication was not adjusted appropriately, when he decompensated and got into shouting matches with his father, and made aggressive overtures towards him. Dr. Dattilio said that he spoke with the defendant's father who said that the defendant never harmed him, that he was unruly during times of acute exacerbation of his illness, and that to the doctor's knowledge, the defendant never struck his father.
When asked if the defendant would live with his father should he be released on an Order of Conditions, Dr. Dattilio indicated that the defendant may, eventually, live with his family, but that first he would live in a supervised community living center, like one that exists in Rockland County, NY, closer in location than he is now to his 93 year old father, where he would be groomed for a transition back to complete independent living. The doctor indicated that one must apply to this facility, Rockland State Psychiatric Center, and that at the present time, it is full.
Dr. Dattilio testified that regarding the difficulty the defendant is having with the physical therapy staff, who are trying to help him, he understands that this slows the whole process down, because he is seen as a difficult and paranoid patient.
Upon re-direct examination, Dr. Dattilio testified that he explored community residences in New Jersey
and New York, near the defendant's father, which are similar facilities to the Rockland facility, and that the defendant and his father would be compliant with the defendant entering such a facility.
During oral argument, the Assistant Attorney General indicated that it is the State's position that if the defendant were to be released on an Order of Conditions, his residence must be in New York State. See, the minutes, dated June 4, 2010, pages 28–29.
Upon questioning by the Court, Dr. Dattilio testified that even if the defendant receives unescorted on-grounds privileges at Creedmore, his opinion would be unchanged. The doctor explained that the defendant needs a community atmosphere, and he needs to be closer to his father, to maintain a one-on-one face-to-face relationship. With the defendant's father being 93 years old, it is difficult for him to travel to see his son.
Dr. Dattilio also testified, upon questioning by the Court, that he believes that the cause of the most dramatic incidents of mental illness on the part of the defendant was that the medications he was on at those times did not work well on him, and that he would discontinue them because of the side-effects, and then decompensate. The doctor continued that now, the defendant is on the right medication, is aware of it, is grateful for it, and it faithful to its regimen. Furthermore, the defendant, who suffered from his psychiatric illness since he was 17 years old, is now over 50 years old, has had the benefit of treatment, and is stable. Dr. Dattilio testified that he has no doubt that the defendant will comply with his medication regimen, and that the defendant is frightened by what may happen if he does not take it.
Dr. Dattilio also stated that he had a conversation with Dr. Clerisme and feels that Dr. Clerisme's hands are tied because he must follow the rigid rules of New York State, and that the defendant must comply with this and must comply with that. The doctor also indicated that the hospital is overreacting to non-compliance because of its institutional needs for order, that this is causing the defendant's frustration, and that his non-compliance is not that serious.
The defense then rested its case.
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 N.Y.2d 267 [2002];Leon R.V. Palmer, 266 A.D.2d 218, 697 N.Y.S.2d 693 [2nd Dept 1999]; In re Jerriell O., 288 A.D.2d 313, 734 N.Y.S.2d 71 [2nd Dept 2001] ).
The Court notes that the defense, in its undated Memorandum of Law Opposing Retention, at pages 3 and 4, submits that the defendant was “adjudicated non-dangerous when his case first became a CPL 330 .20 matter. As such, his commitment is of a civil nature pursuant to CPL 330.20[7].” The defense submits that the proceedings concerning this retention hearing are therefore governed by the Mental Hygiene Law. The defense continues that the State is required to prove, by clear and convincing evidence, three different factors before retention my be granted. However, contrary to the defendant's allegations, the defendant was not adjudicated non-dangerous at his initial hearing. At his initial hearing, he was adjudicated to have a dangerous mental disorder and a commitment order pursuant to CPL 330.20[6] issued ( see, Creedmore Psychiatric Center, Hospital Forensic Committee Reports, dated March 2, 2009, June 30, 2008; Dr. Clerisme's report, dated January 5, 2009; Applications for a Subsequent Retention Order, dated March 5, 2009, June 17, 2008; Applications for Change in Status, dated February 17, 2009, June 3, 2008; Dr. Dattilio's report, dated April 5, 2010; Report of Forensic Assessment, dated June 2, 2008;). Thereafter, in January, 2008, the defendant was found to be nondangerous. Once the initial finding of dangerous was made, even if the defendant's condition was later deemed to be non-dangerous, nevertheless, all of the proceedings concerning the defendant's commitment to the custody of the Commissioner of Mental Health are governed by CPL 330.20, and not the Mental Hygiene Law. See, In the Matter of Norman D., 3 N.Y.3d 150 [2004]. For retention hearings are only conducted according to the Mental Hygiene Law when a defendant is found, at his initial hearing, to be not dangerous. See,CPL 330.20[7].
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 N.Y.3d 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 N.Y.2d 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 ). 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” ( see, In the Matter of David B., supra, at 278, 739 N.Y.S.2d 858, 766 N.E.2d 565) are factors demonstrating dangerousness, and therefore supporting retention.
During the course of this retention hearing, the Court heard testimony from two very competent and very compelling doctors. Upon careful review of their testimony, as well as 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, 739 N.Y.S.2d 858, 766 N.E.2d 565). 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. The Court finds that there could be no disagreement between the parties as to this issue, that it is crystal clear that the defendant needs care and treatment.Both Dr. Clerisme and Dr. Dattilio are in agreement that the defendant suffers from schizophrenia, paranoid type, and that compliance with his medication regimen is paramount to his mental health. They both agree that the defendant has a long history of suffering from this illness, including several hospitalizations, aggressive behavior, psychotic delusions, and a suicide attempt. They both agree that without his medication, his treatment, the defendant would once again incur the wrath of his mental illness. Accordingly, the State has demonstrated this requirement justifying retention.
In determining if the defendant's mental illness is one which requires inpatient care, the characteristic which is perhaps most in dispute in this case, the Court looked to the testimony of both Dr. Clerisme and Dr. Dattilio. Although the Court found Dr. Dattilio's credentials to be extremely impressive, the Court can not say that it was swayed by his testimony. Dr. Dattilio, indeed, did a substantial amount of work before rendering his opinion regarding the issue of the defendant's retention. However, despite his great efforts, in actuality he had one meeting with the defendant, compared to Dr. Clerisme who has not only been the defendant's treating psychiatrist since January 2008, but sees him every day, has therapeutic meetings with him every week, and has the benefit of receiving staff reports on the defendant's behavior. Therefore, the Court finds the testimony of Dr. Clerisme to be more compelling.
Furthermore, the Court is troubled by two aspects of Dr. Dattilio's testimony. The first is that the Court is quite surprised that the doctor testified that he has no doubt that should the defendant be released he will continue with his medication. It is unreasonable to conclude that anyone, after a single face-to-face meeting, has the ability to predict with certainty how another individual will act in markedly changed circumstances. The defendant has a long history of mental illness and non-compliance with treatment, and although the defendant has been compliant for the past few years, while being directly supervised as an in-patient, for Dr. Dattilio to be that certain that the defendant will maintain his medication regimen upon release, the Court must question his position.
The Court is also troubled by the aspect of Dr. Dittalio's testimony wherein he finds the defendant's non-compliance with certain aspects of his treatment at Creedmore to be unimportant. As will be discussed, infra, the Court finds the defendant's non-compliance to be extremely relevant and telling, and is perplexed as to how Dr. Dittalio brushes that aside.
Dr. Clerisme's testimony establishes that the defendant still requires in-patient care. Although the defendant has been taking his medication, he has been non-compliant with many different facets of his treatment at Creedmore, such as group therapy. There could be little argument that group therapy is an important tool in maintaining the defendant's mental health. If the defendant does not attend or participate in this therapy while in a restricted setting, how can the community be assured that the defendant will fulfill his therapeutic obligations in a less restrictive setting, such as being released on an Order of Conditions? Dr. Clerisme's testimony indicates that the defendant is lax in attending his programs. If the defendant is lax while an in-patient, what assurances does the Court have that he will be vigilant in complying with his treatment regimen upon his release? Dr. Clerisme observed that the defendant is uncooperative with, and abusive to, staff while a resident of Creedmore. Why would he not be abusive and uncooperative with others trying to help him should he be released and living in the community? If the defendant won't follow the rules of the hospital, as an in-patient, why should he do so in a less structured setting?
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 refusing to participate in his group sessions, by being disruptive to staff, by failing to cooperate with staff trying to help him, such as the physical therapy staff, the defendant has shown the Court that he does not know or understand that he needs treatment. The defendant is certainly not acting like someone who wants to progress through the steps which would prepare him for release, like someone who wants to move on. Aside from taking his medication, the defendant has made no effort to demonstrate that he can be a productive and healthy member of society, should he be released into the community. To the contrary, his behavior at Creedmore undermines his contention that he is ready for a less restrictive setting.
Nor is the defendant's behavior at Creedmore limited to absenting himself from discussions, programs, and therapy. There is also the matter of his decision to remain in a wheelchair, instead of using the prosthesis which would give him greater mobility. The defendant's refusal to comply with a simple requirement that he receive additional training in the use of the prosthesis, further reflects his impaired judgment.
It is clear to the Court that the defendant is unhappy at Creedmore, and would like to be in a facility closer to his father. While the Court is not unsympathetic to his feelings, his acts and omissions while at Creedmore demonstrate that he does not understand his need for treatment. Dr. Dittalio's alternative hypothesis, that institutional pettiness is the reason for the hospital wanting to retain the defendant, is not supported by the totality of circumstances presented in this case.
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 N.Y.2d 267, 279 [2002], retention may find support “by the need to prepare for a safe and stable transition from ... commitment to release”. Dr. Clerisme testified that the hospital wants to retain the defendant to further prepare him for discharge, not to retain him in the hospital permanently. Dr. Dittalio agrees that it would be wise to slowly reintegrate the defendant back into society. However, 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 in a less restrictive setting, when he has failed to do so in his in-patient situation at Creedmore.
Nor is this 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's chance to progress has been in his own hands, yet, by his negativity, he continues to thwart the opportunity.
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.
Therefore, based upon the above discussion, and the entire record of this case, while the Court recommends that the State evaluate whether the defendant is ready for an increase in privileges, the Court finds that the defendant is not yet ready for conditional release.Accordingly, the State's application for a subsequent two-year retention order is hereby granted.
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.