Henry L., Matter of

• Decision Date: 03 March 1997
• Citation: 661 N.Y.S.2d 764,172 Misc.2d 981
• Parties: In the Matter of HENRY L., Defendant.
• Court: New York County Court

Page 764

661 N.Y.S.2d 764

172 Misc.2d 981

In the Matter of HENRY L., Defendant.

Franklin County Court.

March 3, 1997.

Mental Hygiene Legal Services, Mineola (Dennis B. Feld, of counsel), for defendant.

Dennis C. Vacco, Attorney General, Plattsburgh (D. Travis Tucker, of counsel), for Commissioner of Mental Retardation and Developmental Disabilities, petitioner.

ROBERT G. MAIN, Jr., Judge.

In this application for a subsequent retention order pursuant to Criminal Procedure Law § 330.20(9), defendant, a criminal acquitee, moves to transfer venue from Franklin County to Dutchess County. The applicant, through the Attorney General, opposes the relief requested and seeks dismissal of the motion.

The facts, as relevant to the issue of venue and as gleaned from the limited record before this court, may be stated as follows. In 1983 defendant was found not responsible by reason of mental disease or defect of certain criminal charges and was committed to a secure facility by order of Albany County Supreme Court pursuant to Criminal Procedure Law § 330.20(6). In 1984, upon a finding that he did not have a dangerous mental disorder, Defendant was transferred to a non-secure facility pursuant to Criminal Procedure Law § 330.20(8), (11). The order of conditions which was issued at the time of the transfer order expired in 1989 at the conclusion of the first five-year term, and no application was made to extend the order of conditions.

Defendant, who has been continually retained pursuant to the second and subsequent retention orders, eventually was transferred to Wassaic Developmental Center, a non-secure facility in Dutchess County. In the summer of 1996 the applicant apparently made timely application for a subsequent retention order to continue confinement beyond the most recently preceding order which was effective through August 22, 1996.

On August 20, 1996, Dutchess County Supreme Court issued a subsequent retention order, without a hearing, and made the finding that defendant, at that time, suffered from a dangerous mental disorder. Upon defendant's application, Dutchess County Supreme Court vacated its own order because the initial application had not been supported by the affidavit required by Criminal Procedure Law § 330.20(20). The vacatur, dated December 19, 1996, directed that defendant be released unless the Commissioner served and filed a jurisdictionally sufficient retention application within ten days of service of a copy of the order with notice of entry.

In the interim, and apparently upon the authority of the subsequently vacated subsequent retention order finding that defendant, at that time, suffered from a dangerous mental disorder, defendant was transferred, by the Commissioner of Mental Retardation and Developmental Disabilities, to Sunmount Developmental Disabilities Services Office, a secure facility in Franklin County. The Commissioner thereafter filed a retention application in this Court, as directed in the order of December 19, 1996. ¹

In support of his motion for a change of venue, defendant cites Criminal Procedure Law § 330.20(9) in support of his contention that Franklin County is not an appropriate venue to hear and determine the retention application. Defendant contends that he is not presently confined in the custody of the Commissioner in a facility within Franklin County pursuant to a retention order. He further contends that, since there exists no legal justification for his presence within Franklin County or, for that matter, in any secure facility, venue is improper here.

In opposition to the motion, the Commissioner contends that, since defendant was physically situate in a facility within Franklin County at the time the current application was made, Franklin County is the proper venue. The Commissioner further contends that defendant was properly transferred to Sunmount, a secure facility, upon a subsequent retention order in which the court found, without a hearing, that defendant suffered from a dangerous mental disorder.

As both sides have duly noted, the Court is constrained to decide the instant motion within the confines of Criminal Procedure Law § 330.20 (see, Matter of Tucker, 145 Misc.2d 1011, 549 N.Y.S.2d 350). The resolution of the issue presented turns specifically upon the interpretation of Criminal Procedure Law § 330.20(9) which must be read and interpreted within the broader context of the entire section.

Criminal Procedure Law § 330.20 provides the procedural framework to be followed after a criminal defendant is found not responsible by reason of mental disease or defect. Upon proper application and proof, a court may, among other things, (1) commit such a person, found to suffer from a dangerous mental disorder, to the custody of the Commissioner for confinement in a secure facility (Criminal Procedure Law § 330.20[6] ); (2) later order such person retained therein (Criminal Procedure Law § 330.20[8], [9] ); (3) later order a transfer (with an order of conditions) from a secure facility to a non-secure facility, upon a finding that a defendant is still mentally ill but no longer suffers from a dangerous mental disorder (Criminal Procedure Law § 330.20[8], [9], [11] ); or (4) recommit the Defendant to the custody of the Commissioner for confinement in a secure facility upon a finding, after a mandatory hearing upon notice, that a defendant again suffers from a dangerous mental disorder and as long as the application is made while the defendant is covered by an order of conditions (Criminal Procedure Law § 330.20[14] ).

An order which commits a defendant to the custody of the Commissioner for confinement in a secure facility in a proceeding subsequent to an initial hearing is a "recommitment order" (see, Criminal Procedure Law § 330.20[1][f], [14] ). The statutory framework for recommitment contains a number of mechanisms clearly designed to protect a defendant and afford him due process before he may be recommitted after having been transferred to a non-secure facility (see, Criminal Procedure Law § 330.20[11] ) or released from in-patient status (see, Criminal Procedure Law § 330.20[12] ). Other than a "recommitment order", no statutory mechanism exists for confinement in a secure facility after the execution of either a "transfer order" or "release order".

It is...