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DEFENDANT NEED NOT BE INFORMED AT THE TIME OF THE PLEA TO A SEX OFFENSE THAT HE OR SHE MAY BE SUBJECT TO A MENTAL HYGIENE LAW ARTICLE 10 CIVIL ACTION AS THE RELEASE DATE APPROACHES (THIRD DEPT).

The Third Department determined defendant, a sex offender who was found to suffer from a mental abnormality after Mental Hygiene Law Article 10 trial, was not entitled specific performance of his plea agreement, which made no mention of the of potential Mental Hygiene Law proceedings:

Respondent next challenges Supreme Court’s denial of his pretrial motion to dismiss the petition inasmuch as his 1997 plea agreement is a legal and binding contract — one that entitled him to specific performance. Proceedings pursuant to the Sex Offender Management and Treatment Act “are expansive civil proceedings, which are entirely separate from and independent of the original criminal action” … . Moreover, “[i]t is well settled that trial courts are required to advise defendants who plead guilty regarding the direct consequences of such plea, but they have no obligation to iterate every collateral consequence of the conviction” … . As relevant here, “the potential for either civil confinement or supervision pursuant to [the Sex Offender Management and Treatment Act] is a collateral consequence of a guilty plea and, therefore, the current state of the law does not require that defendants be informed of it prior to entering a plea of guilty” … . As such, we discern no error in Supreme Court’s denial of respondent’s request for specific performance. Nor are we persuaded by respondent’s assertion that specific performance is appropriate because the Mental Hygiene Law article 10 litigation ensued following the expiration of his sentence, as the article 10 proceeding commenced upon the date that the petition was filed, prior to respondent’s release date … . Matter of State of New York v Robert G., 2020 NY Slip Op 00009, Third Dept 1-2-20

 

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NO APPEAL LIES FROM THE DENIAL OF A MOTION TO WITHDRAW A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT (SECOND DEPT).

The Second Department determined that no appeal lies from the denial of a motion to withdraw a plea of not responsible by reason of mental disease or defect:

… [A] motion pursuant to CPL 220.60 seeking to withdraw a plea to an indictment is part of a criminal action or, at the least, “related to a . . . completed criminal action,” so as to come within the statutory definition of a “[c]riminal proceeding” (CPL 1.20[18]; … ). Moreover, in light of the nature of the relief sought in the motion, the motion is, by its nature, criminal, rather than civil … . Accordingly, proper statutory authority under the Criminal Procedure Law must exist in order for the defendant to appeal from the denial of the motion … .

Such statutory authority does not exist. CPL 450.10 only provides that a defendant may appeal as of right from a judgment, sentence, or order made pursuant to specified provisions of CPL article 440, and thus, does not provide for appellate review, as of right, from an order denying a motion pursuant to CPL 220.60, to withdraw a plea of not responsible by reason of mental disease or defect. Nor does CPL 450.15 allow for such an appeal by permission, as that statute only permits an appeal from orders made pursuant to specified provisions of CPL article 440, and “[a] sentence . . . not otherwise appealable as of right” (CPL 450.15[3]). Finally, there is no avenue for appeal through CPL 330.20, which permits a party “to proceedings conducted in accordance with the provisions of this section” to appeal, by permission, from certain orders rendered under CPL 330.20 (CPL 330.20[21]). The orders specified do not include an order denying a motion pursuant to CPL 220.60 to withdraw the plea … . People v Delano F., 2019 NY Slip Op 07089, Second Dept 10-2-19

 

DAUGHTER’S PETITION TO BE APPOINTED GUARDIAN FOR HER MOTHER, WHO HAS DEMENTIA AND ALZHEIMER’S, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the petition by one of respondent’s daughters, seeking to be appointed guardian, should not have been denied without a hearing. Respondent is 89 and has been diagnosed with dementia and Alzheimer’s disease and lives with her other daughter, Elizabeth ZZ. Petitioner alleged that Elizabeth had been prohibiting communication and visitation with her mother:

Given the record before us, we find that the allegations set forth in the subject petition, as supplemented by the supporting affidavits affixed to the parties’ motion papers and the court evaluator’s report and subsequent status updates, create a genuine question of fact as to respondent’s alleged incapacity, her ability to understand and appreciate the nature and consequences of her condition and functional limitations and whether the arrangements that have been put in place for her personal and property needs were the product of Elizabeth ZZ.’s undue influence such that petitioner adequately established her entitlement to a hearing (see Mental Hygiene Law §§ 81.02 [a] [2]; 81.11 [a], [b] …). Matter of Elizabeth TT. (Suzanne YY.–Elizabeth ZZ.), 2019 NY Slip Op 06667, Third Dept 9-19-19

 

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NO PRIVATE RIGHT OF ACTION FOR A DEVELOPMENTALLY DISABLED CHILD HOUSED FOR MORE THAN FIVE WEEKS IN A HOSPITAL EMERGENCY ROOM BECAUSE NO APPROPRIATE RESIDENTIAL FACILITY WAS AVAILABLE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, considering the appeal under an exception to the mootness doctrine, determined a 16-year-old developmentally disabled child (Olivia) did not have a private right of action against Champlain Valley Physicians Hospital (CVPH), the Office for People with Developmental Disabilities (OPWDD) or the Department of Health (DOH) for housing her in the CVPH emergency room when no appropriate residential facility was available. The opinion is too comprehensive and covers too many substantive issues to be fairly summarized here:

In 2018, Olivia CC. (hereinafter the child), a minor with complex developmental disabilities, was stranded in the emergency room of respondent Champlain Valley Physicians Hospital (hereinafter CVPH) for more than five weeks while she waited for a residential school placement. The child was not in need of medical or psychiatric care. However, neither her family nor the Office for People with Developmental Disabilities (hereinafter OPWDD) — the agency legislatively charged with protecting the welfare of persons with developmental disabilities — could provide her with safe interim housing. CVPH thus retained the child in the emergency room, where she could not attend school, participate in community activities or go outdoors, and CVPH was forced to use scarce medical resources to provide for her nonmedical needs. Unfortunately, the child is not the first minor with special needs to be marooned for weeks or months in an emergency room, as hospitals find themselves serving as the last resort for providing shelter to children in crisis … . The difficult legal issues presented here call into question the extent of the responsibilities of the legislative and administrative functions of government to some of our society’s most vulnerable members, and the limitations on the power of courts to protect them. * * *

Our conclusion that the amended petition/complaint provides this Court with no grounds to intervene in respondents’ operations should not be misunderstood as condonation of the child’s prolonged and unnecessary hospitalization or of respondents’ failure to provide her with appropriate assistance. Nevertheless, this record does not permit a determination of the propriety of constitutional or equitable relief, and relief grounded in the statutory provisions relied upon here must come from the Legislature or from respondents’ policy choices. Thus, we will not disturb Supreme Court’s judgment. Matter of Mental Hygiene Legal Serv. v Delaney, 2019 NY Slip Op 06119, Third Dept 8-8-19

 

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STATE DID NOT DEMONSTRATE APPELLANT SEX OFFENDER WAS UNABLE TO CONTROL HIS BEHAVIOR, AS OPPOSED TO HAVING DIFFICULTY CONTROLLING HIS BEHAVIOR; THEREFORE RELEASE WITH STRICT SUPERVISION, AS OPPOSED TO CIVIL COMMITMENT, WAS ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the expert testimony offered by the State did not demonstrate the appellant sex offender was unable to control his behavior, requiring civil commitment, as opposed to having difficulty controlling his behavior, requiring strict supervision. Therefore appellant should be released under a regimen of strict and intensive supervision and treatment:

… [T]he State failed to present clear and convincing evidence that the appellant has an “inability to control sexual misconduct” … . In this regard, the State relied on, inter alia, the testimony of Dr. Stuart Kirschner, a psychologist, at the mental abnormality trial; a “dispositional addendum” report that Kirschner submitted; and a report from a psychologist for the New York State Office of Mental Health, Dr. Trevor Floyd. While Kirschner testified that the appellant had difficulty controlling his actions due to certain impulse control problems, Kirschner also testified that it was “very difficult” to ascertain whether an individual committed a crime because he or she was unable to control his or her conduct or because he or she chose not to control it, and that the distinction between the two was largely “irrelevant.” This testimony, considered in conjunction with the other evidence presented by the State, was not sufficient to support a finding, by clear and convincing evidence, that the appellant had an “inabilityto control sexual misconduct” … . Furthermore, Floyd’s report, which was based on his own interview with and psychological testing of the appellant, opined that there was insufficient evidence to conclude that the appellant had an inability to control his behavior such that he was a danger to others. The appellant’s expert reached a similar conclusion, opining that the appellant was a “good candidate for release under conditions of strict and intensive supervision and treatment.” Matter of State of New York v Ted B., 2019 NY Slip Op 05550, Second Dept 7-10-19

 

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EVIDENCE THAT DEFENDANT SEX OFFENDER SUFFERS FROM UNSPECIFIED PARAPHILIC DISORDER (USPD) MAY BE ADMISSIBLE IN AN ARTICLE 10 TRIAL, THE EVIDENCE WAS EXCLUDED BELOW, VERDICT VACATED AND PETITION REINSTATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that evidence of unspecified paraphilic disorder (USPD) can be admitted in a sex offender civil management trial. The evidence was excluded at the Mental Hygiene Law article 10 trial. The verdict that defendant does not suffer from a mental abnormality was vacated and the petition was reinstated:

In Matter of State of New York v Hilton C. (158 AD3d 707 [2d Dept 2018] …), the 2nd Department held that the evidence in the record before it, which is similar to the evidence in the record presently before us, failed to establish that “the diagnosis of unspecified paraphilic disorder [USPD] has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible” … . In the absence of any other New York State appellate authority, Supreme Court … that USPD was precluded as a diagnosis in article 10 proceedings.

However, we find, contrary to the 2nd Department, and consistent with the decision in Matter of Luis S. v State of New York (166 AD3d 1550 [4th Dept 2018]) that the type of evidence presented at the Frye hearing … in this case — such as the evidence concerning the inclusion of USPD as a diagnosis in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which signals its general acceptance by the psychiatric community — is sufficient to satisfy the State’s burden of showing that the USPD diagnosis meets the Frye standard.

Accordingly, the verdict that respondent does not suffer from a mental abnormality, rendered after the article 10 trial, from which USPD evidence was excluded, must be vacated, the petition reinstated, and the matter remanded for further proceedings, including a determination whether the evidence meets the threshold standard of reliability and admissibility … . Matter of State of New York v Jerome A., 2019 NY Slip Op 03531, First Dept 5-7-19

 

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INSUFFICIENT EVIDENCE TO SUPPORT THE ADMINISTRATION OF TWO DRUGS TO SAMUEL D, A MENTALLY ILL PERSON, OVER SAMUEL D’S OBJECTION (SECOND DEPT).

The Second Department determined that the state had demonstrated the administration of two drugs to Samuel D, a mentally ill person, over Samuel D’s objection was proper. But the state’s evidence concerning two other drugs was insufficient:

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” … . …

… [T]he petitioner failed to offer sufficient evidence at the hearing to establish by clear and convincing evidence its entitlement to medicate Samuel D. with Valproic Acid and Benztropine over his objection … . The minimal evidence presented at the hearing regarding these medications was insufficient for the petitioner to establish by clear and convincing evidence that the proposed course of treatment with respect to these medications was narrowly tailored to give substantive effect to Samuel D.’s liberty interest. Matter of Samuel D. (Mid-Hudson Forensic Psychiatric Ctr.), 2019 NY Slip Op 03045, Second Dept 4-24-19

 

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CONFLICTING PSYCHIATRIC EVALUATIONS REQUIRED A COMPETENCY HEARING, EVEN IF ONE OF THE PSYCHIATRISTS HAD CHANGED HIS OR HER MIND (THIRD DEPT).

The Third Department, over a dissent, determined a hearing was required to assess defendant’s competency to stand trial because conflicting reports from the two psychiatric evaluations. The fact that one of the psychiatrists apparently changed his or her opinion was deemed irrelevant. The matter was sent back for a reconstruction hearing:

… [T]here can be no dispute that, after receiving conflicting examination reports, County Court failed to conduct a competency hearing. Although the People rely on defense counsel’s representation that the psychiatric examiner who filed a report stating that defendant was not competent to stand trial had changed his mind, this representation and subsequent withdrawal of the request for a hearing did not relieve the court of its statutory duty to conduct a hearing pursuant to CPL 730.30 (4) for the purpose of determining defendant’s mental capacity to stand trial … . We agree with the dissent that, pursuant to CPL 730.30 (2), a competency hearing need not always be held “[w]hen the examination reports submitted to the court show that each psychiatric examiner is of the opinion that the defendant is not an incapacitated person” (emphasis added). However, we do not agree that CPL 730.30 (2) applies when the record demonstrates that the court has been provided with two conflicting examination reports, even if the defendant’s attorney represents that one of the examiners has since changed his or her opinion.

Given the circumstances present here, reconstruction of defendant’s mental capacity at the time of his violation hearing should be possible by means of “contemporaneous observation and records” … . People v Vandegrift, 2019 NY Slip Op 01854, Third Dept 3-14-19

 

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COURT RECORDS RELATED TO PROCEEDINGS FOR THE COMMITMENT AND RETENTION OF DANGEROUS MENTALLY ILL ACQUITTEES ARE NOT CLINICAL RECORDS AND THEREFORE ARE NOT SUBJECT TO THE AUTOMATIC SEALING REQUIREMENT IN THE MENTAL HYGIENE LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that the records of Criminal Procedure Law 330.20 proceedings related to the commitment and retention of insanity acquittees (suffering from a dangerous mental disorder) are not “clinical records” within the meaning of the Mental Hygiene Law and, therefore, are not subject to the automatic sealing requirement:

The plain text of Mental Hygiene Law § 33.13 … cuts against defendant’s interpretation that the term “clinical record” includes the entire record of court proceedings or dictates to a court how to manage its own records. * * *

Throughout our history, “the institutional value” of open judicial proceedings has fostered “an appearance of fairness” … and ensured “the public interest in having proceedings of courts of justice public, not secret, for the greater security thus given for the proper administration of justice” … . Interpreting Mental Hygiene Law § 33.13, despite the absence of any supporting statutory language, to provide a blanket sealing requirement of an entire court record that is automatically conferred disregards that tradition. In balancing the privacy rights of a defendant with the public’s right to know how dangerous mentally ill acquittees are managed by the courts, the legislature eschewed an automatic sealing requirement of the court record. We refuse to disturb that balance today. Here, defendant demanded an automatic seal in stark contrast to a case specific analysis that demands a court to find good cause sufficient to rebut the legislative presumption of public access for any sealing, in part or whole, upon due consideration of the competing and compelling interests of the public and the parties … . Matter of James Q. (Commissioner of the Off. for People with Dev. Disabilities), 2019 NY Slip Op 01166, CtApp 2-19-19

 

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MENTAL HEALTH LEGAL SERVICES DOES NOT HAVE STANDING TO SEEK A WRIT OF MANDAMUS TO COMPEL A HOSPITAL TO COMPLY WITH THE MENTAL HYGIENE LAW PROCEDURE WHEN A PATIENT REQUESTS AN ADMISSION OR RETENTION HEARING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge dissenting opinion, reversing the Appellate Division, determined Mental Hygiene Legal Services did not have standing to seek a writ of mandamus to compel a hospital to comply with Mental Hygiene Law 9.31 (b) “which sets forth the procedure that must be followed after a patient requests an admission or retention hearing:

MHLS alleges that, in early 2016, it “began to notice problems with the medical charts offered into evidence by BPC [Bronx Psychiatric Center]” because “documents contained in the chart had been added or removed just prior to the hearing.” MHLS filed this CPLR article 78 petition in the nature of mandamus, in its own name — and separate from any specific client or proceeding — seeking an order compelling BPC to provide copies of a patient’s entire clinical chart when it provides notice of a request for an admission or retention hearing, arguing the clinical chart is part of the “record of the patient” under Mental Hygiene Law § 9.31. Matter of Mental Hygiene Legal Serv. v Daniels, 2019 NY Slip Op 01123, CtApp 2-14-19

 

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