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PETITIONER, UPSTATE UNIVERSITY HOSPITAL, SHOULD NOT HAVE BEEN ORDERED TO PAY THE ALLEGED INCAPACITATED PERSON’S (AIP’S) COURT-APPOINTED ATTORNEY’S FEES OR THE COURT EVALUATOR’S FEE IN THIS SUCCESSFUL MENTAL HYGIENE LAW PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the court should not have directed the petitioner, Upstate University Hospital, to pay the court-appointed attorney’s fees and the court evaluator’s fees in this proceeding to appoint a guardian for an alleged incapacitated person (AIP). The petition to appoint a guardian was successful and the AIP did not die during the proceedings. The court-appointed attorney should be paid pursuant to the County Law article 18-B, and the court did not have the authority to require petitioner to pay the court evaluator’s fee. The Fourth Department further determined Supreme Court did not abuse its discretion by failing to appoint Mental Hygiene Legal Services to represent the AIP:

Article 81 of the Mental Hygiene Law provides that the court may appoint an attorney to represent the AIP, and that petitioner may be directed to pay for such services where the petition is dismissed or the AIP dies before the proceeding is concluded … . In all cases, “[t]he court shall determine the reasonable compensation for the mental hygiene legal service or any attorney appointed pursuant to” that statute … . Nevertheless, “the statute is silent as to the source of funds for payment of counsel [where, as here,] the AIP is indigent”… . Despite that silence, it is well settled that “the Legislature, by providing for the assignment of counsel for indigents in the Mental Hygiene Law, intended, by necessary implication, to authorize the court to compensate counsel” … , and it is likewise well settled that the court should direct that requests for such compensation should be determined “in accordance with the procedures set forth in County Law article 18-B” … . Thus, the court erred in directing petitioner to pay those fees.

We also agree with the contention of petitioner in appeal No. 3 that the court erred in directing it to pay the fees requested by the court evaluator. Where, as here, a court appoints a court evaluator pursuant to Mental Hygiene Law § 81.09 (a) and then “grants a petition, the court may award a reasonable compensation to a court evaluator, including the mental hygiene legal service, payable by the estate of the allegedly incapacitated person” … . The statute further provides that a court may direct petitioner to pay for the services of a court evaluator only where the court “denies or dismisses a petition,” or the AIP “dies before the determination is made in the petition” … . Therefore, “notwithstanding Supreme Court’s broad discretion to award reasonable fees in Mental Hygiene Law article 81 proceedings . . . , [inasmuch as] petitioner was successful [and the AIP is alive], the court was without authority to ascribe responsibility to petitioner for payment of the court evaluator’s fees” … . Matter of Buttiglieri (Ferrel J.B.), 2018 NY Slip Op 00738, Fourth Dept 2-2-18

MENTAL HYGIENE LAW (PETITIONER, UPSTATE UNIVERSITY HOSPITAL, SHOULD NOT HAVE BEEN ORDERED TO PAY THE ALLEGED INCAPACITATED PERSON’S (AIP’S) COURT-APPOINTED ATTORNEY’S FEES OR THE COURT EVALUATOR’S FEE IN THIS SUCCESSFUL MENTAL HYGIENE LAW PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN (FOURTH DEPT))/MUNICIPAL LAW (COURT-APPOINTED ATTORNEY’S FEES, MENTAL HYGIENE LAW, PETITIONER, UPSTATE UNIVERSITY HOSPITAL, SHOULD NOT HAVE BEEN ORDERED TO PAY THE ALLEGED INCAPACITATED PERSON’S (AIP’S) COURT-APPOINTED ATTORNEY’S FEES OR THE COURT EVALUATOR’S FEE IN THIS SUCCESSFUL MENTAL HYGIENE LAW PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN (FOURTH DEPT))/ATTORNEYS (COURT-APPOINTED ATTORNEY’S FEES, MENTAL HYGIENE LAW, PETITIONER, UPSTATE UNIVERSITY HOSPITAL, SHOULD NOT HAVE BEEN ORDERED TO PAY THE ALLEGED INCAPACITATED PERSON’S (AIP’S) COURT-APPOINTED ATTORNEY’S FEES OR THE COURT EVALUATOR’S FEE IN THIS SUCCESSFUL MENTAL HYGIENE LAW PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN (FOURTH DEPT))/ATTORNEY’S FEES (COURT-APPOINTED ATTORNEY’S FEES, MENTAL HYGIENE LAW, PETITIONER, UPSTATE UNIVERSITY HOSPITAL, SHOULD NOT HAVE BEEN ORDERED TO PAY THE ALLEGED INCAPACITATED PERSON’S (AIP’S) COURT-APPOINTED ATTORNEY’S FEES OR THE COURT EVALUATOR’S FEE IN THIS SUCCESSFUL MENTAL HYGIENE LAW PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN (FOURTH DEPT))/COURT EVALUATORS (MENTAL HYGIENE LAW, FEES, PETITIONER, UPSTATE UNIVERSITY HOSPITAL, SHOULD NOT HAVE BEEN ORDERED TO PAY THE ALLEGED INCAPACITATED PERSON’S (AIP’S) COURT-APPOINTED ATTORNEY’S FEES OR THE COURT EVALUATOR’S FEE IN THIS SUCCESSFUL MENTAL HYGIENE LAW PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN (FOURTH DEPT))/GUARDIANSHIP (MENTAL HYGIENE LAW, PETITIONER, UPSTATE UNIVERSITY HOSPITAL, SHOULD NOT HAVE BEEN ORDERED TO PAY THE ALLEGED INCAPACITATED PERSON’S (AIP’S) COURT-APPOINTED ATTORNEY’S FEES OR THE COURT EVALUATOR’S FEE IN THIS SUCCESSFUL MENTAL HYGIENE LAW PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN (FOURTH DEPT))/ALLEGED INCAPACITATED PERSON (AIP) (MENTAL HYGIENE LAW, PETITIONER, UPSTATE UNIVERSITY HOSPITAL, SHOULD NOT HAVE BEEN ORDERED TO PAY THE ALLEGED INCAPACITATED PERSON’S (AIP’S) COURT-APPOINTED ATTORNEY’S FEES OR THE COURT EVALUATOR’S FEE IN THIS SUCCESSFUL MENTAL HYGIENE LAW PROCEEDING FOR THE APPOINTMENT OF A GUARDIAN (FOURTH DEPT))

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SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT).

The Second Department determined sealed records were properly unsealed in this sex offender civil commitment hearing:

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The Supreme Court properly granted the State’s motion to unseal the records kept by the Office of the Suffolk County District Attorney and the Suffolk County Police Department regarding the defendant’s 2001 arrest for rape in the first degree. Mental Hygiene Law § 10.08(c) provides, “Notwithstanding any other provision of law, the commissioner, the case review panel and the attorney general shall be entitled to request from any agency, office, department or other entity of the state, and such entity shall be authorized to provide upon request, any and all records and reports relating to the respondent’s commission or alleged commission of a sex offense, the institutional adjustment and any treatment received by such respondent, and any medical, clinical or other information relevant to a determination of whether the respondent is a sex offender requiring civil management.” “The primary goal of the court in interpreting a statute is to determine and implement the Legislature’s intent”… . Given the legislative purpose underlying Mental Hygiene Law § 10.08(c), we have construed this statute to permit authorized parties to obtain records from local government entities in addition to State entities … . Matter of State of New York v David B., 2017 NY Slip Op 08831, Second Dept 12-20-17

 

MENTAL HYGIENE LAW (SEX OFFENDERS, CIVIL COMMITMENT, SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT))/EVIDENCE (MENTAL HYGIENE LAW, SEX OFFENDERS, SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT))/MUNICIPAL LAW (SEALED RECORDS, MENTAL HYGIENE LAW, SEX OFFENDERS,  SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT))/SEALED RECORDS SEX OFFENDERS, CIVIL COMMITMENT, SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT))

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STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITHIN STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Sgroi, determined that a detained sex offender, Kerry K, was entitled to a new civil commitment trial on the issue of mental abnormality and, if necessary, a new dispositional hearing. The finding that Kerry K suffered from a mental abnormality was based in part on hearsay about a conviction which had been vacated based upon DNA evidence (after defendant served 11 years in prison). The Second Department further held that the fact that the probable cause hearing and trial did not occur within the statutory time-frames was not a jurisdictional defect or a violation of due process. And the fact that sealed criminal records were relied upon by the state’s experts was deemed proper:

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… [T]he failure to conduct the probable cause hearing and trial within the statutory time frames did not deprive the court of jurisdiction or, under the circumstances, violate Kerry K.’s due process rights. … Mental Hygiene Law § 10.08(c) permits the State to obtain, from local government entities, sealed records relating to an offender’s commission or alleged commission of a sex offense. … [W]e conclude that the court erred in admitting the hearsay basis testimony regarding convictions of which Kerry K. was exonerated … . * * *

The experts’ testimony about the vacated 1982 convictions … did not satisfy the reliability and relevance requirements for admission of hearsay basis evidence. As the Court of Appeals has observed, “unlike adjudications and admissions of guilt, an acquittal cannot provide the basis for reliability” … . Further, “[c]harges that resulted in acquittal are surely more prejudicial than probative on the question of the respondent’s mental abnormality” … . Thus, “acquittal of criminal charges bars admission of those accusations, absent some other basis to substantiate them” … .

In the present case, the information regarding the 1982 convictions was even less reliable and relevant than information concerning charges of which a respondent has merely been acquitted. An acquittal on a particular charge indicates that the People were unable to prove the defendant’s guilt of that charge beyond a reasonable doubt. Here, in contrast, the 1982 convictions were vacated, on consent of the Suffolk County District Attorney’s Office, based on the results of DNA testing conducted by Kerry K.’s and the State’s experts, and Kerry K. later affirmatively proved his innocence by clear and convincing evidence … . Thus, it was error to permit the State’s experts to testify about the 1982 convictions, and this error deprived Kerry K. of due process … . Matter of State of New York v Kerry K., 2017 NY Slip Op 08671, Second Dept 12-13-17

 

MENTAL HYGIENE LAW (SEX OFFENDERS, CIVIL COMMITMENT, STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITH STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT))/EVIDENCE (MENTAL HYGIENE LAW, SEX OFFENDERS, CIVIL COMMITMENT, STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITH STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT))/SEX OFFENDERS (CIVIL COMMITMENT, STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITH STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT))/CIVIL COMMITMENT (SEX OFFENDERS STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITH STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT))

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MENTAL HEALTH LEGAL SERVICE (MHLS) HAS ORGANIZATIONAL STANDING TO BRING AN ARTICLE 78 PROCEEDING TO REQUIRE THE BRONX PSYCHIATRIC CENTER TO PROVIDE A COMPLETE COPY OF A PATIENT’S MEDICAL RECORD PRIOR TO AN INVOLUNTARY RETENTION HEARING, AND, ON THE MERITS, MHLS IS ENTITLED TO SUCH RECORDS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, over a two-justice dissenting opinion, determined the Mental Hygiene Legal Service (MHLS) was entitled to a copy of the psychiatric patient’s full medical chart prior to an involuntary-retention hearing under the Mental Hygiene Law. As a preliminary matter, the First Department held MHLS has organizational standing to bring the underlying Article 78 proceeding which was triggered by the Bronx Psychiatric Center’s (BPC’s) refusal to provide the medical record:

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In order to retain a patient involuntarily for more than 60 days, the hospital must obtain a court order so directing, although the patient may remain hospitalized while the application for such an order is pending … . The hospital must show “that the patient is mentally ill and in need of continued, supervised care and treatment, and that the patient poses a substantial threat of physical harm to himself and/or others”… . On the other hand, MHLS has a duty “[t]o provide legal services and assistance to patients or residents and their families related to the admission, retention, and care and treatment of such persons” … . MHLS further has a duty “[t]o initiate and take any legal action deemed necessary to safeguard the right of any patient or resident to protection from abuse or mistreatment” … .

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This Court has found organizational standing under exceptional circumstances involving organizations that were dedicated to protecting a class of individuals who suffered injuries which certain statutes were intended to guard against, and who could not otherwise act in their own interests. …

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We find that MHLS has demonstrated a clear legal right to mandamus relief … . … [W]hen read together, [the] statutory duty and regulatory provisions impose upon BPC a compulsory duty to provide MHLS with a copy of its clients’ complete medical charts before their respective retention hearings under MHL 9.31 and 9.33 are held. Matter of Mental Hygiene Legal Serv. v Daniels, 2017 NY Slip Op 08645, First Dept 12-12-17

 

MENTAL HYGIENE LAW (MENTAL HEALTH LEGAL SERVICE (MHLS) HAS ORGANIZATIONAL STANDING TO BRING AN ARTICLE 78 PROCEEDING TO REQUIRE THE BRONX PSYCHIATRIC CENTER TO PROVIDE A COMPLETE COPY OF A PATIENT’S MEDICAL RECORD PRIOR TO AN INVOLUNTARY RETENTION HEARING, AND, ON THE MERITS, MHLS IS ENTITLED TO SUCH RECORDS (FIRST DEPT))/CIVIL PROCEDURE (ORGANIZATIONAL STANDING, MENTAL HEALTH LEGAL SERVICE (MHLS) HAS ORGANIZATIONAL STANDING TO BRING AN ARTICLE 78 PROCEEDING TO REQUIRE THE BRONX PSYCHIATRIC CENTER TO PROVIDE A COMPLETE COPY OF A PATIENT’S MEDICAL RECORD PRIOR TO AN INVOLUNTARY RETENTION HEARING, AND, ON THE MERITS, MHLS IS ENTITLED TO SUCH RECORDS (FIRST DEPT))/STANDING (CIVIL PROCEDURE, ORGANIZATIONAL STANDING, MENTAL HEALTH LEGAL SERVICE (MHLS) HAS ORGANIZATIONAL STANDING TO BRING AN ARTICLE 78 PROCEEDING TO REQUIRE THE BRONX PSYCHIATRIC CENTER TO PROVIDE A COMPLETE COPY OF A PATIENT’S MEDICAL RECORD PRIOR TO AN INVOLUNTARY RETENTION HEARING, AND, ON THE MERITS, MHLS IS ENTITLED TO SUCH RECORDS (FIRST DEPT))/ORGANIZATIONAL STANDING (MENTAL HEALTH LEGAL SERVICE (MHLS) HAS ORGANIZATIONAL STANDING TO BRING AN ARTICLE 78 PROCEEDING TO REQUIRE THE BRONX PSYCHIATRIC CENTER TO PROVIDE A COM PLETE COPY OF A PATIENT’S MEDICAL RECORD PRIOR TO AN INVOLUNTARY RETENTION HEARING, AND, ON THE MERITS, MHLS IS ENTITLED TO SUCH RECORDS (FIRST DEPT))/MENTAL HEALTH LEGAL SERVICE (INVOLUNTARY RETENTION, MENTAL HEALTH LEGAL SERVICE (MHLS) HAS ORGANIZATIONAL STANDING TO BRING AN ARTICLE 78 PROCEEDING TO REQUIRE THE BRONX PSYCHIATRIC CENTER TO PROVIDE A COMPLETE COPY OF A PATIENT’S MEDICAL RECORD PRIOR TO AN INVOLUNTARY RETENTION HEARING, AND, ON THE MERITS, MHLS IS ENTITLED TO SUCH RECORDS (FIRST DEPT))/PSYCHIATRIC PATIENTS (INVOLUNTARY RETENTION, MENTAL HEALTH LEGAL SERVICE (MHLS) HAS ORGANIZATIONAL STANDING TO BRING AN ARTICLE 78 PROCEEDING TO REQUIRE THE BRONX PSYCHIATRIC CENTER TO PROVIDE A COMPLETE COPY OF A PATIENT’S MEDICAL RECORD PRIOR TO AN INVOLUNTARY RETENTION HEARING, AND, ON THE MERITS, MHLS IS ENTITLED TO SUCH RECORDS (FIRST DEPT))/INVOLUNTARY RETENTION (PSYCHIATRIC PATIENTS, MENTAL HEALTH LEGAL SERVICE (MHLS) HAS ORGANIZATIONAL STANDING TO BRING AN ARTICLE 78 PROCEEDING TO REQUIRE THE BRONX PSYCHIATRIC CENTER TO PROVIDE A COMPLETE COPY OF A PATIENT’S MEDICAL RECORD PRIOR TO AN INVOLUNTARY RETENTION HEARING, AND, ON THE MERITS, MHLS IS ENTITLED TO SUCH RECORDS (FIRST DEPT))

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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)

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