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ORDER THAT THE PATIENT INMATE SHOULD BE TREATED WITH A PARTICULAR DRUG FOR SCHIZOPHRENIA OVER HIS OBJECTION SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, ORDER ALLOWING ALTERNATIVE DRUGS, AND A NONDURATIONAL ORDER NOT SUPPORTED (SECOND DEPT).

The Second Department determined clear and convincing evidence supported the finding that the patient (Radcliffe M.) was unable to make treatment decisions for himself and that a particular medication for schizophrenia should be administered over the patient’s objection. However, the evidence did not support the findings that certain alternative drugs could be administered or that the order should be nondurational (no termination date):

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The State may administer a course of medical treatment against a patient’s will if it establishes, by clear and convincing evidence, that the patient lacks the capacity to make a reasoned decision with respect to proposed treatment … , and that “the proposed treatment is narrowly tailored to give substantive effect to the patient’s liberty interest, taking into consideration all relevant circumstances, including the patient’s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments”… . Whether a mentally ill patient has the capacity to make a reasoned decision with respect to treatment is a question of fact for the hearing court, the credibility findings of which are entitled to due deference… . Here, the petitioner established by clear and convincing evidence that Radcliffe M. lacks the capacity to make a reasoned decision with respect to continuing a course of treatment of Haldol Deconoate … . Further, the petitioner established by clear and convincing evidence that the proposed course of treatment with Haldol Deconoate was narrowly tailored to give substantive effect to Radcliffe M.’s liberty interest, taking into consideration all relevant circumstances, including his best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment, and any less intrusive alternative treatments … .

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However, the petitioner failed to offer any testimony or evidence at the hearing with respect to the additional medications included in the order as “Reasonable Alternatives” … . …

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A nondurational order is appropriate where it is established that treatment will allow the patient to become stabilized and restore the patient’s ability to make reasoned decisions regarding the management of his or her mental illness … . In such circumstances, “the order’s forcefulness will end as soon as [the patient] is no longer so incapacitated” … . The petitioner failed to establish that Radcliffe M.’s ability to make reasoned decisions regarding his own treatment will be restored with treatment and that a nondurational order would therefore be appropriate … . Matter of Radcliffe M., 2017 NY Slip Op 08270, Second Dept 11-22-17

 

MENTAL HYGIENE LAW (ORDER THAT THE PATIENT INMATE SHOULD BE TREATED WITH A PARTICULAR DRUG FOR SCHIZOPHRENIA OVER HIS OBJECTION SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, ORDER ALLOWING ALTERNATIVE DRUGS, AND A NONDURATIONAL ORDER NOT SUPPORTED (SECOND DEPT))/SCHIZOPHRENIA (MENTAL HYGIENE LAW, CRIMINAL LAW, ORDER THAT THE PATIENT INMATE SHOULD BE TREATED WITH A PARTICULAR DRUG FOR SCHIZOPHRENIA OVER HIS OBJECTION SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, ORDER ALLOWING ALTERNATIVE DRUGS, AND A NONDURATIONAL ORDER NOT SUPPORTED (SECOND DEPT))/CRIMINAL LAW (INMATES, ORDER THAT THE PATIENT INMATE SHOULD BE TREATED WITH A PARTICULAR DRUG FOR SCHIZOPHRENIA OVER HIS OBJECTION SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, ORDER ALLOWING ALTERNATIVE DRUGS, AND A NONDURATIONAL ORDER NOT SUPPORTED (SECOND DEPT))/INMATES (MENTAL HYGIENE LAW, ORDER THAT THE PATIENT INMATE SHOULD BE TREATED WITH A PARTICULAR DRUG FOR SCHIZOPHRENIA OVER HIS OBJECTION SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, ORDER ALLOWING ALTERNATIVE DRUGS, AND A NONDURATIONAL ORDER NOT SUPPORTED (SECOND DEPT))

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TOWN’S REQUEST FOR AN ADJOURNMENT OF A HEARING ABOUT THE PLACEMENT OF A RESIDENCE FOR THE DEVELOPMENTALLY DISABLED IN THE TOWN WAS PROPERLY DENIED, THE REASONS FOR THE REQUEST FOR THE ADJOURNMENT WERE NOT PROVIDED UNTIL AFTER THE FACT (FOURTH DEPT).

The Fourth Department, over a dissent, determined the town’s request for an adjournment of a hearing was properly denied. After the hearing, the NYS Off. for People with Dev. Disabilities permitted the establishment of a community residential facility for the developmentally disabled within the town. Although the town requested that the hearing be adjourned, it did offer timely explanations of the reasons for the adjournment:

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Petitioner (the town) contends that, if it had been given additional time to prepare for the hearing, it could have proposed alternative sites, and thus the denial of an adjournment was an abuse of discretion. If petitioner believed that another site would be appropriate, however, it should have suggested another site in response to the sponsoring agency’s initial notice or, if needed, asked for time to find such a site … . Instead, petitioner decided to object to the facility outright … , which led the sponsoring agency to request an “immediate hearing” … . We therefore respectfully disagree with our dissenting colleague that there was no reason for petitioner to anticipate preparing for a hearing upon receiving notice from the sponsoring agency.

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We further respectfully disagree with our dissenting colleague that an adjournment should have been granted so that petitioner could study traffic and waste disposal concerns. In its requests for an adjournment, petitioner did not state that it needed time to study those issues. It was not until after the decision of respondent’s Acting Commissioner, in which she stated that petitioner’s traffic and septic concerns were not based on any studies, that petitioner argued that it should have been granted an adjournment to study those issues. To the extent that petitioner contends that its stated reason of needing “time to prepare” encompassed those specific issues, we reject that contention. To conclude otherwise would mean that adjournments should always be granted upon request, even when it is well settled that the decision to grant or deny an adjournment is a matter of discretion … . Matter of Town of Boston v New York State Off. for People with Dev. Disabilities, 2017 NY Slip Op 07803, Fourth Dept 11-9-17

 

CIVIL PROCEDURE (ADJOURNMENTS, TOWN’S REQUEST FOR AN ADJOURNMENT OF A HEARING ABOUT THE PLACEMENT OF A RESIDENCE FOR THE DEVELOPMENTALLY DISABLED IN THE TOWN WAS PROPERLY DENIED, THE REASONS FOR THE REQUEST FOR THE ADJOURNMENT WERE NOT PROVIDED UNTIL AFTER THE FACT (FOURTH DEPT))/MUNICIPAL LAW ( OWN’S REQUEST FOR AN ADJOURNMENT OF A HEARING ABOUT THE PLACEMENT OF A RESIDENCE FOR THE DEVELOPMENTALLY DISABLED IN THE TOWN WAS PROPERLY DENIED, THE REASONS FOR THE REQUEST FOR THE ADJOURNMENT WERE NOT PROVIDED UNTIL AFTER THE FACT (FOURTH DEPT))/MENTAL HYGIENE LAW (TOWN’S REQUEST FOR AN ADJOURNMENT OF A HEARING ABOUT THE PLACEMENT OF A RESIDENCE FOR THE DEVELOPMENTALLY DISABLED IN THE TOWN WAS PROPERLY DENIED, THE REASONS FOR THE REQUEST FOR THE ADJOURNMENT WERE NOT PROVIDED UNTIL AFTER THE FACT (FOURTH DEPT))/RESIDENTIAL FACILITIES (TOWN’S REQUEST FOR AN ADJOURNMENT OF A HEARING ABOUT THE PLACEMENT OF A RESIDENCE FOR THE DEVELOPMENTALLY DISABLED IN THE TOWN WAS PROPERLY DENIED, THE REASONS FOR THE REQUEST FOR THE ADJOURNMENT WERE NOT PROVIDED UNTIL AFTER THE FACT (FOURTH DEPT))/DEVELOPMENTALLY DISABLED  (TOWN’S REQUEST FOR AN ADJOURNMENT OF A HEARING ABOUT THE PLACEMENT OF A RESIDENCE FOR THE DEVELOPMENTALLY DISABLED IN THE TOWN WAS PROPERLY DENIED, THE REASONS FOR THE REQUEST FOR THE ADJOURNMENT WERE NOT PROVIDED UNTIL AFTER THE FACT (FOURTH DEPT))

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RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, over a two-justice dissent, determined that the record of a retention hearing for an insanity acquittee need not be sealed:

Mental Hygiene Law § 33.13 does not, as respondent contends, require that the record of his retention proceeding be sealed. …

Respondent accepted a plea of not responsible by reason of mental disease or defect and, therefore, “avoid[ed] criminal penalties and . . . [became] subject to the CPL 330.20 scheme” … . As the Court of Appeals has consistently recognized, “[t]his places insanity acquittees in a significantly different posture than involuntarily committed civil patients” and, thus, justifies “rational differences between procedures for commitment and release applicable to defendants found not responsible and persons involuntarily committed under the Mental Hygiene Law” … . The distinction between an insanity acquittee, as we have here, and an involuntarily committed civil patient is apparent by the Legislature’s enactment of a separate statutory scheme — CPL 330.20 — to address the commitment and retention procedures for persons found not responsible for their crimes by reason of mental disease or defect. The detailed statutory framework of CPL 330.20 does not include a provision that requires, or even contemplates, the sealing of these commitment and retention proceedings. Nor does the relevant legislative history indicate that the Legislature intended for these proceedings — which arise only after a criminal defendant affirmatively places his or her mental competency in issue — to be sealed from the public … . Matter of James Q., 2017 NY Slip Op 06222, 3rd Dept 8-17-17

 

MENTAL HYGIENE LAW (CRIMINAL LAW, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT))/CRIMINAL LAW (INSANITY ACQUITTEE, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT)/INSANITY ACQUITTEE  (CRIMINAL LAW, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT))/RETENTION HEARING (INSANITY ACQUITTEE, (CRIMINAL LAW, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT))

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COUNSEL FOR A CIVILLY COMMITTED SEX OFFENDER WAS NOT ENTITLED TO ATTEND MEETINGS ABOUT APPROPRIATE TREATMENT FOR THE SEX OFFENDER 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Devine, over a two-justice dissent, determined that counsel for a civilly committed sex offender (D.J.) was not entitled to attend meetings about the appropriate treatment of the sex offender:

Having been adjudicated “a dangerous sex offender requiring confinement” (Mental Hygiene Law § 10.10 [a]), petitioner D.J. was committed to the St. Lawrence Psychiatric Center and enrolled in the Sex Offender Treatment Program. Respondent Commissioner of Mental Health is required to “develop and implement a treatment plan” for D.J. and others in his position (Mental Hygiene Law § 10.10 [b]; see Mental Hygiene Law § 29.13 [a]) and, “[i]n causing such a plan to be prepared or . . . revised,” the patient and specified individuals must be “interviewed and provided an opportunity to actively participate” (Mental Hygiene Law § 29.13 [b]).

In 2016, D.J. asked that his counsel in the Mental Hygiene Law article 10 proceeding, assigned through petitioner Mental Hygiene Legal Service (hereinafter MHLS), accompany him to treatment planning meetings. The requests of D.J. and, later, his counsel were denied, with the chief of service for the Sex Offender Treatment Program, Bryan Shea, explaining that counsel was not entitled to attend treatment planning meetings as a matter of law and that counsel’s presence would be therapeutically counterproductive. Shea left open the possibility that a MHLS attorney could participate in a patient’s treatment planning, but explained that such would be contingent upon the attorney having a “genuine[] interest[] in the care of the patient” and guaranteeing “that [he or she was] no longer acting in the role of legal representative” and would keep “any information [received] during treatment planning . . . confidential” from MHLS. * * *

Counsel from MHLS … comes from an agency whose “statutory mission is to provide legal assistance to the residents of certain facilities” such as D.J., and legal advocacy may easily conflict with crafting an appropriate treatment plan if the medically advisable treatment conflicts with the client’s legal goals … . Matter of Mental Hygiene Legal Serv. v Sullivan, 2017 NY Slip Op 05656, 3rd Dept 7-13-17

MENTAL HYGIENE LAW (COUNSEL FOR A CIVILLY COMMITTED SEX OFFENDER WAS NOT ENTITLED TO ATTEND MEETINGS ABOUT APPROPRIATE TREATMENT FOR THE SEX OFFENDER 3RD DEPT)/ATTORNEYS (MENTAL HYGIENE LAW, COUNSEL FOR A CIVILLY COMMITTED SEX OFFENDER WAS NOT ENTITLED TO ATTEND MEETINGS ABOUT APPROPRIATE TREATMENT FOR THE SEX OFFENDER 3RD DEPT)/SEX OFFENDERS (MENTAL HYGIENE LAW, ATTORNEYS, COUNSEL FOR A CIVILLY COMMITTED SEX OFFENDER WAS NOT ENTITLED TO ATTEND MEETINGS ABOUT APPROPRIATE TREATMENT FOR THE SEX OFFENDER 3RD DEPT)

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INSUFFICIENT PROOF DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER WITHIN THE MEANING OF THE CRIMINAL PROCEDURE LAW 2ND DEPT.

The Second Department, reversing County Court, determined the evidence at this civil commitment hearing supported a finding defendant was not suffering from a “dangerous mental disorder,” but rather was “mentally ill,” within the meaning of the Criminal Procedure Law (CPL) 330.20:

… County Court accepted the appellant’s plea of not responsible by reason of mental disease or defect to the charge of strangulation in the second degree. After the court issued an examination order pursuant to CPL 330.20(3), the appellant was remanded to Mid-Hudson Forensic Psychiatric … , where he was evaluated by three psychiatric examiners. Two of the examiners found him to be suffering from a dangerous mental disorder, while the third determined that he was mentally ill. * * *

The opinions expressed by the People’s experts were based, in large part, upon speculation and an overly narrow focus on the appellant’s conduct during the relatively brief period of time between the instant offense and the time when the appellant began taking medication. As evidenced by the unrebutted testimony of the appellant’s experts, the appellant has had no history of relapses into violent behavior. Moreover, he had no notable history of substance or alcohol abuse, had always been compliant with treatment, both during the 18-month period he was released on bail and during his subsequent time at Mid-Hudson, and had a positive support system. Therefore, the preponderance of the record evidence did not support the conclusion of the People’s experts that the appellant suffered from a dangerous mental disorder…  Contrary to the County Court’s determination, the preponderance of the evidence adduced at the hearing demonstrated only that the appellant was mentally ill … .

Accordingly, the County Court’s findings of fact must be vacated and the matter remitted to the County Court, Orange County, for the entry of a finding that the appellant is mentally ill pursuant to CPL 330.20(1)(d), and the issuance of such further orders as may be appropriate under the Mental Hygiene Law and CPL 330.20(7). Matter of Eric F., 2017 NY Slip Op 05594, 2nd Dept 7-12-17

CRIMINAL LAW (CIVIL COMMITMENT, INSUFFICIENT PROOF DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER WITHIN THE MEANING OF THE CRIMINAL PROCEDURE LAW 2ND DEPT)/MENTAL HYGIENE LAW (CRIMINAL LAW, CIVIL COMMITMENT, INSUFFICIENT PROOF DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER WITHIN THE MEANING OF THE CRIMINAL PROCEDURE LAW 2ND DEPT)/MENTAL ILLNESS (CRIMINAL LAW, INSUFFICIENT PROOF DEFENDANT SUFFERED FROM A DANGEROUS MENTAL DISORDER WITHIN THE MEANING OF THE CRIMINAL PROCEDURE LAW 2ND DEPT)

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FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 2ND DEPT.

The Second Department, reversing Supreme Court, determined defendant sex offender’s “for cause” challenge to a juror should have been granted in this civil commitment proceeding:

The record of the voir dire reveals that after the appellant’s counsel disclosed that the appellant previously had committed rapes and robberies against 11 different victims and had been dubbed “the Flatbush rapist” in 1991, a prospective juror repeatedly turned away from counsel, said “Wow” on numerous occasions, and acknowledged that she remembered the Flatbush rapist. She further expressed the concern that “I got too many granddaughters,” and when asked at various points if the appellant’s prior offenses might influence her ability to be fair, she remarked “I just went blank,” “I don’t know, I—it&mdash,” and “You know I’m looking at the man and I’m—I know his face, but that’s when he was young and I’m like, wow.” Significantly, the prospective juror never unequivocally asserted that she could be fair and impartial following these remarks. The appellant’s subsequent challenge to the prospective juror for cause was denied, and the appellant utilized a peremptory challenge to remove her from the panel.

The appellant contends that the denial of his for-cause challenge constituted error. We agree. Contrary to the State’s contention, this issue is preserved for appellate review, since the appellant exhausted his peremptory challenges before jury selection was completed (… Mental Hygiene Law § 10.07[b]; CPL 270.20[2]). Turning to the merits, CPL 270.20(1)(b) provides that a challenge for cause is authorized when a prospective juror “has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial.” Where a prospective juror’s responses raise serious doubt with regard to his ability to be impartial, that prospective juror must be excused absent an unequivocal statement on the record assuring that he or she can be fair and impartial… . Here, the equivocal responses of the prospective juror, along with her other remarks and expressions of concern, raised substantial doubt as to whether she could be fair and impartial in her evaluation of the case, triggering an obligation on the part of the Supreme Court to inquire further … . Matter of State of New York v Keith G., 2017 NY Slip Op 05444, 2nd Dept 7-5-17

 

MENTAL HYGIENE LAW (SEX OFFENDERS, CIVIL COMMITMENT, FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 2ND DEPT)/CRIMINAL LAW (MENTAL HYGIENE LAW, SEX OFFENDERS, CIVIL COMMITMENT, FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 2ND DEPT)/SEX OFFENDERS (MENTAL HYGIENE LAW, CIVIL COMMITMENT, FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 2ND DEPT)/CIVIL COMMITMENT (SEX OFFENDERS, MENTAL HYGIENE LAW, FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 2ND DEPT)/JURORS (MENTAL HYGIENE LAW, SEX OFFENDERS, CIVIL COMMITMENT, FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 2ND DEPT)/FOR CAUSE CHALLENGE (JURORS, MENTAL HYGIENE LAW, CIVIL COMMITMENT, SEX OFFENDERS, FOR CAUSE CHALLENGE TO A JUROR IN THIS SEX-OFFENDER CIVIL COMMITMENT ACTION SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED 2ND DEPT)

ALTHOUGH DEFENDANT’S STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) CONDITIONS WERE VIOLATED, THE VIOLATIONS PERTAINED TO DRUG USE, NOT SEXUAL MISCONDUCT, EVIDENCE LINKING DEFENDANT’S COCAINE USE TO SEXUAL AROUSAL WAS DEEMED SUFFICIENT TO WARRANT CIVIL COMMITMENT.

The Fourth Department, over a substantive dissent, determined the evidence was sufficient to support the revocation of defendant sex offender’s strict and intensive supervision and treatment (SIST) status and the imposition of civil commitment (as a dangerous sex offender). The SIST violations related to cocaine use, not sexual misconduct. Evidence linked defendant’s cocaine use to sexual arousal. The dissent argued such proof was insufficient because there was no showing defendant’s use of cocaine led to his inability to control (as opposed to difficulty in controlling) his sexual behavior:

Here, petitioner’s expert testified that respondent suffers from antisocial personality disorder, substance abuse disorder, and severe cocaine and alcohol use disorder. Respondent’s instant SIST violations included the use of cocaine on at least two occasions within one month of release to the community. Respondent has violated the conditions of SIST release on two prior occasions, and those violations also involved cocaine use. Petitioner’s expert described respondent’s cocaine use upon his most recent release to be of an “escalating” nature, and opined that respondent is unable to curb his craving for cocaine and has demonstrated a lack of cooperation with, and resentment toward, substance abuse and sex offender treatment. Petitioner’s expert further opined that respondent’s sex offending behavior is “linked” with his cocaine usage and his sexual arousal has become conditioned to his cocaine usage. Moreover, every examiner who has evaluated respondent has concluded that his sex offending behavior is linked to his substance abuse, and the hearing record contains numerous admissions by respondent that his sex offending behavior is linked to his cocaine use. Petitioner’s expert testified that, based on his Static-99 scores, respondent was at a moderate to high risk of recidivism, and respondent’s score on the Acute-2007 placed him in the high range risk of recidivism. Although respondent’s expert testified that respondent had “put some distance” between his cocaine use and his sex offending behavior, respondent’s expert also agreed that “[t]here’s no doubt that one could lead to the other.” We thus conclude that petitioner established by the requisite clear and convincing evidence that respondent’s substance abuse was linked to his sex offending behavior and that respondent is a dangerous sex offender requiring confinement … . Matter of State of New York v William J., 2017 NY Slip Op 05335, 4th Dept 6-30-17

 

STATE’S EXPERT DID NOT ESTABLISH RESPONDENT SEX OFFENDER SHOULD BE SUBJECT TO CIVIL COMMITMENT, SUPREME COURT REVERSED. ​

The First Department, reversing Supreme Court, determined the state did not demonstrate respondent (sex offender) should be subject to civil commitment. The conclusory allegations of the state’s expert were belied by the respondent’s record:

The testimony of the State’s experts fell short of the “detailed psychological portrait” necessary to establish, by clear and convincing evidence, that respondent’s disorders result in his having serious difficulty controlling sexually-offending conduct … . Although respondent’s criminal history includes sexual misconduct, the evidence at trial showed that he spent 24 years in prison without any inappropriate sexual behavior, and successfully completed multiple sex offender treatment programs, including one that he took voluntarily … . The State’s experts’ conclusory testimony that respondent showed only limited gains from the treatment programs is belied by his sex offender treatment records, which are replete with notes showing that he has good impulse control, takes full responsibility for his crimes, expresses remorse for the harm to his victims, and demonstrates honesty and empathy in disclosing his sex offending behavior. Matter of State of New York v Howard H., 2017 NY Slip Op 05311, 1st Dept 6-29-17

 

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OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD.

The Third Department determined claimant’s negligence suit against the state Office of Mental Retardation and Developmental Disabilities (OMRDD) was properly dismissed because the OMRDD’s oversight of private companies providing care to the developmentally disabled was a government function and there was no special relationship with the resident, claimant’s daughter. Therefore the state was immune from suti. Claimant alleged the resident was abused while in the care of Camary Statewide Services, a private, nonprofit corporation that was, at that time, certified by the OMRDD:

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OMRDD conducted annual or biannual reviews, which included a sampling of records and interviews of staff members and residents, to determine whether Camary continued to be eligible for an operating certificate to provide care and treatment to developmentally disabled individuals … . Where noncompliance was discovered, OMRDD could require private service providers to take corrective measures to address the deficiency or, where the noncompliance was severe, revoke, suspend or limit the service provider’s operating certificate … . In the event of noncompliance, OMRDD would provide guidance to the service provider, but it would not take affirmative steps to bring the provider into compliance with the applicable regulations. Moreover, OMRDD’s oversight over, and regulation of, Camary was plainly undertaken to further the general goal of protecting the health and safety of persons with developmental disabilities. Based on the foregoing, we conclude that the actions, or inactions, in question were governmental in nature … . * * *

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… [C]laimant argues that the requisite special relationship was formed by OMRDD’s violation of Mental Hygiene Law former § 13.07 (c) … , as well as the reporting rules in 14 NYCRR former part 624 … . As relevant here, Mental Hygiene Law former § 13.07 (c) …  charged OMRDD with ensuring that the care and treatment provided to persons with developmental disabilities were of high quality and that the personal and civil rights of persons receiving such care and treatment were protected. As for the reporting rules, OMRDD promulgated detailed regulations requiring that reportable incidents, which included instances in which a resident sustained an injury requiring more than first aid, be recorded and investigated by the service provider under a defined procedure, subject to review by OMRDD. Undoubtedly, these statutory and regulatory provisions were enacted for the benefit of persons with developmental disabilities, a class within which the resident certainly falls.

However, no private right of action is expressly created by the implementing statute and the relevant regulations and, contrary to claimant’s contentions, one may not be fairly implied. T.T. v State of New York, 2017 NY Slip Op 04940, 3rd Dept 6-15-17

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NEGLIGENCE (GOVERNMENTAL IMMUNITY, DEVELOPMENTALLY DISABLED, OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)/IMMUNITY (OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)/OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (IMMUNITY, OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)/MENTAL HYGIENE LAW (DEVELOPMENTALLY DISABLED, IMMUNITY,  OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)/DEVELOPMENTALLY DISABLED (NEGLIGENCE, IMMUNITY,  OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)

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CHANGE OF VENUE TO ALLOW PETITIONER’S MOTHER TO TESTIFY SHOULD HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined petitioner sex offender’s motion for a change of venue for the annual review of his civil commitment under Article 10 should have been granted. The change was sought to allow petitioner’s mother to testify:

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In this annual review proceeding pursuant to Mental Hygiene Law § 10.09, petitioner appeals from an order that, inter alia, denied that part of his motion seeking a change of venue to New York County for the convenience of witnesses … . Petitioner was previously determined to be a dangerous sex offender requiring civil confinement and confined to a secure treatment facility … . He is currently confined at the Central New York Psychiatric Center in Oneida County. We now grant that part of the motion seeking a change of venue.

The court may change the venue of an annual review proceeding” to any county for good cause, which may include considerations relating to the convenience of the parties or witnesses or the condition of the [confined sex offender]’ ” … . We agree with petitioner that Supreme Court improvidently exercised its discretion in denying his motion inasmuch as the proposed testimony of his mother, who lives in New York County, is “relevant to the issue of whether petitioner remained a dangerous sex offender in need of confinement” … . Although respondent correctly notes that the subjects of the mother’s proposed testimony also may be the subjects of expert testimony, “[t]he pertinent question is whether a witness—expert or lay—has material and relevant evidence to offer on the issues to be resolved” … . We agree with petitioner that his mother’s proposed testimony concerning his stated goals and priorities, likely living arrangements, and the availability and extent of a familial support system in the event of release, is material and relevant to the issue whether he “is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” … . Matter of Charada T. v State of New York, 2017 NY Slip Op 03379, 4th Dept 4-28-17

 

MENTAL HYGIENE LAW (SEX OFFENDERS, CIVIL COMMITMENT, CHANGE OF VENUE TO ALLOW PETITIONER’S MOTHER TO TESTIFY SHOULD HAVE BEEN GRANTED)/SEX OFFENDERS (MENTAL HYGIENE LAW, CHANGE OF VENUE TO ALLOW PETITIONER’S MOTHER TO TESTIFY SHOULD HAVE BEEN GRANTED)/CIVIL COMMITMENT (MENTAL HYGIENE LAW, CHANGE OF VENUE TO ALLOW PETITIONER’S MOTHER TO TESTIFY SHOULD HAVE BEEN GRANTED)/VENUE (MENTAL HYGIENE LAW, CHANGE OF VENUE TO ALLOW PETITIONER’S MOTHER TO TESTIFY SHOULD HAVE BEEN GRANTED)

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