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DEFENDANT’S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT’S TREATMENT-CIVIL CONFINEMENT (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Tom, determined defendant did not receive effective assistance of counsel when counsel conceded that defendant had a dangerous mental disorder requiring civil confinement. There was no strategic justification for waiving a CPL 330.20 hearing to determine which treatment/confinement track was appropriate for defendant:

… [A]fter a court accepts a not responsible plea, it must issue an examination order for the defendant to be examined by two qualified psychiatric examiners (CPL 330.20[2]), who must submit to the court a report of their findings and evaluation regarding defendant's mental condition (CPL 330.20[5]).

Critical to this procedure is the requirement that the court conduct an initial hearing within 10 days after receipt of the psychiatric examination reports, in order to classify the defendant as “track one,” “track two,” or “track three” based on the defendant's mental condition (CPL 330.20[6]…).

The track is significant because it determines the level of the defendant's confinement and treatment. Track one is based on a finding of “dangerous mental disorder,” meaning that the defendant suffers from a “mental illness,” and that “because of such condition he currently constitutes a physical danger to himself or others” (CPL 330.20[1][c]; see Mental Hygiene Law § 1.03[20] [defining “mental illness”]). Track two is based on a finding of “mentally ill,” without a dangerous mental disorder (CPL 330.20[1][d]). Track three is based on a finding of not mentally ill (CPL 330.20[7]).

“The track designation places more dangerous acquittees under the purview of the Criminal Procedure Law, while less dangerous, though still mentally ill, acquittees are committed to the custody of the Commissioner of Mental Health and come under the supervision of the Mental Hygiene Law”… . Thus, track designation is “vitally important in determining the level of judicial and prosecutorial involvement in future decisions about an acquittee's confinement, transfer and release” … . People v Darryl T., 2018 NY Slip Op 06634, First Dept 10-4-18

CRIMINAL LAW (DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/DANGEROUS MENTAL DISORDER (CRIMINAL LAW, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/MENTAL HYGIENE LAW (CRIMINAL LAW, DANGEROUS MENTAL DISORDER, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/CRIMINAL PROCEDURE LAW 330.20  (DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/INEFFECTIVE ASSISTANCE OF COUNSEL (DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))/NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT (DANGEROUS MENTAL DISORDER, CIVIL CONFINEMENT, ATTORNEYS, DEFENDANT'S ATTORNEY DID NOT PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER AND THEREBY EFFECTIVELY WAIVING A HEARING TO DETERMINE THE APPROPRIATE TRACK FOR DEFENDANT'S TREATMENT-CIVIL CONFINEMENT(FIRST DEPT))

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