Lublin, Application of

Decision Date08 January 1976
Citation85 Misc.2d 48,378 N.Y.S.2d 590
PartiesApplication of Laurence LUBLIN, Petitioner, releasing him from the Central Islip Psychiatric Center in accordance with Section 330.20, subdivision 5, of the Criminal Procedure Law.
CourtNew York County Court

Henry F. O'Brien, Dist. Atty. of Suffolk County, Robert Folks, Riverhead, of counsel. Louis Lefkowitz, Atty. Gen., Sall S. Sidoti, Asst. Atty. Gen., New York City, for the State.

Donald W. Leo, Coram, for petitioner.


The petitioner, Laurence Lublin, challenges his continued commitment at Central Islip Psychiatric Center where he has been confined since May 14, 1974, after being transferred there from the Mid-Hudson Psychiatric Center at New Hampton, New York. Lublin had been placed in the custody of the Commissioner of Mental Hygiene following his acquittal by reason of insanity of the murder of his wife.

Within months after Lublin's arrival at Central Islip Psychiatric Center, a Special Release Committee was established by the Hospital Director for the purpose of making a determination as to whether or not Lublin was ready to be discharged from the said psychiatric center. The committee, thereafter, on September 11, 1974, filed its report certifying that Lublin was not then ready to be released. A second Special Release Committee was appointed and on December 5, 1974, this second Committee filed its report certifying that Lublin was ready for release. The second report was forwarded to the Hospital Director and he, in turn, signed it 'sometime in January of 1975'.

The report, together with Lublin's hospital record, was forwarded to the office of the New York State Commissioner of Mental Hygiene. A 'multi-disciplinary panel' was formed at the request of the Commissioner for the purpose of examining Lublin, making findings of fact, and reporting its recommendations to the Commissioner concerning Lublin's suitability for discharge.

Members of the hospital ward staff revealed in interviews with the panel that they felt Lublin was not psychotic but that he was manipulative, never failing to resort to exploitative techniques to attain his desired ends. They felt that Lublin was better adjusted to the center environment than when he first arrived largely because the staff had come along further in its efforts to adjust to him than vice versa. It was the consensus staff opinion that Lublin still was potentially violent.

Two treating psychiatrists and a unit chief were also interviewed by the panel. They tended to concur with the ward staff as to Lublin's manipulative and exploitative traits. The physicians were unanimous in their opinion that Lublin had never, since his admission, shown symptoms or signs of psychosis and that no useful purpose would be served by his continued commitment at Central Islip.

The panel concurred with the views of those interviewed that Lublin was not psychotic. Their summary of all of their interviews reveals that all of those canvassed, including the three physicians, 'feared his discharge to the vicinity of their own home because he would harass or possibly again become homicidal'. (Penal Report, addressed to Long Island Regional Director, Department of Mental Hygiene, dated February 28, 1975).

The panel reported it was unable to assess Lublin's dangerousness. They felt that, if released, Lublin would submit to chemotherapy only as he saw fit and that 'he will encounter difficulty in his relationship with others because of his demanding, manipulating and dependent behavior'; that he would be unlikely to function well in a work situation, and that he would again gravitate to those on whom he felt he could depend.

On the basis of this report, the Commissioner of Mental Hygiene advised the Suffolk County Court, that he was unable to recommend Lublin's release 'with any confidence that hazard would not attend on such release'.

As a result of being advised of the posture of the Department of Mental Hygiene, Lublin himself filed this 'pro se' petition with the court (CPL § 330.20, subd. 5). Two physicians appointed by the court examined Lublin, and after such examination, reported that Lublin could be released from the hospital without danger to himself or others.

This court, not being satisfied that Lublin could be discharged or released on condition without danger to himself or others, directed that a hearing be held for the purpose of making its determination (CPL § 330.20, subd. 3). The District Attorney, who has been served with a copy of the petition (CPL § 330.20, subd. 2) requested, and was granted, leave to appear in opposition to the application (Matter of Miller (Lee), 46 A.D.2d 999, 362 N.Y.S.2d 635).

At the commencement of the hearing Lublin signed a written waiver of his right to a jury trial as guaranteed by People v. Lally, 19 N.Y.2d 27, 277 N.Y.S.2d 654, 224 N.E.2d 87; Lashway v. Hanes, 78 Misc.2d 979, 357 N.Y.S.2d 747; Mental Hygiene Law § 31.35; and within the spirit of Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620.

As to the burden of proof, the District Attorney now contends that the burden of proof as to whether or not Lublin will be retained rests upon those who would oppose release and must be proved beyond a reasonable doubt. Lublin claimed the burden as his own and proceeded, upon that premise, to attempt to establish by a preponderance of the evidence that he was suitable for release upon condition without danger to himself or others.

The court here recognizes that the position of the opposition upon the issue of 'burden of proof' is not without substance, particularly in view of a series of Supreme Court decisions imposing the burden upon the people in cases where a potential loss of liberty or continued deprivation of liberty is involved. (See e.g. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); see also The Rights of the Person Acquitted by Reason of Insanity: Equal Protection and Due Process, 24 Maine Law Review 135 (1972). Winship and Gault were concerned with proceedings regarding juvenile delinquents. The theory articulated in Winship to support the reasonable doubt standard is that where there is such a significant interest as liberty at stake, the margin of error inherent in the judicial process must be reduced as to the party with that interest. This reduction is accomplished by placing the burden of persuasion beyond a reasonable doubt on the other party. The Court quoted from In re Gault as follows: '(a) proceeding where the issue is whether the child will be found to be 'delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.' Winship held that the due process clause requires the state to prove beyond a reasonable doubt every element of the offense charged in any proceeding, juvenile as well as criminal. The analogy between the juvenile and the patient, at least as far as their relative due process rights are concerned, is most competently drawn in the Maine Law Review article cited hereinabove.

Nevertheless, the Supreme Court has not, as yet, declared itself on the precise issue herein and, until such time as it does, this court shall enforce the standard of proof heretofore applicable in this state (Greenwald, Disposition of the Insane Defendant After Acquittal--The Long Road From Commitment to Release, 59 Journal of Criminal Law 583, 589 note 67), which requires the patient to prove by a preponderance of the evidence that he may be discharged or released upon condition without danger to himself or others (People v. Lally, 19 N.Y.2d 27, 277 N.Y.S.2d 654, 224 N.E.2d 87; Matter of Miller (Sherman), 73 Misc.2d 690, 342 N.Y.S.2d 315, vacated and remitted for a new hearing 46 A.D.2d 177, 362 N.Y.S.2d 628; People v. Chapman, 56 Misc.2d 139, 288 N.Y.S.2d 742; Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642; Millard v. Harris, 132 U.S.App.D.C. 146, 406 F.2d 964).

At the hearing, each of the expert witnesses testified as may have been anticipated depending upon whether they were called by Lublin or by those opposing release. All but one of the experts was of the opinion that Lublin was not psychotic, yet none but one would give approval to unconditional release. Wherever release was deemed appropriate for Lublin, continued contact and supervision was recommended in the form of some 'outpatient', 'convalescent care', or 'family care' plan.

It does appear that there is an essential difference between outpatient and family care plans in that the former is made available to patients not committed while the latter is provided for patients of the institution not yet discharged therefrom (27 N.Y. Jur. Hospitals and Asylums § 39; see also, Mental Hygiene Law § 29.15(d) (eff. until March 31, 1976).

The term 'convalescent care' is not defined in the current Mental Hygiene Law enacted by c. 251 of the Laws of 1972 to supercede the former Mental Hygiene Law L.1909, c. 32 as generally amended by L.1927 c. 426. The former law contained a reference to convalescent status in the old section 87. Superceding sections 29.11 and 29.15 of the present Mental Hygiene Law omits all reference to convalescent care or status. The term has been loosely defined by one of the District Attorney's witnesses and it is used in quite another context in a Department of Mental Hygiene memorandum submitted to the court as an exhibit. The witness was of the opinion that there was no specific definition for convalescent care and that such care might include outpatient treatment. The Department memorandum appears to equate convalescent care with family care--at least for the purpose of effecting department policy against the discharge or temporary release of patients under order of a criminal court.

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3 cases
  • Lee v. Kolb
    • United States
    • U.S. District Court — Western District of New York
    • May 1, 1978
    ...Harris, 132 U.S.App.D.C. 146, 406 F.2d 964 (1968); Cross v. Harris, 135 U.S.App.D.C. 259, 263, 418 F.2d 1095, 1099 (1969); Application of Lublin, 85 Misc.2d 48, 378 N.Y. S.2d 590, 595 (Suff.Coun.Ct.1976); U. S. v. Charnizon, 232 A.2d 586 (D.C.Ct.App.1967)), in construing a statute one shoul......
  • Lublin v. Central Islip Psychiatric Center
    • United States
    • New York Supreme Court — Appellate Division
    • January 24, 1977
    ...with others resulting in shouting and physical action on the part of either or both sides' (Matter of Lublin v. Central Islip Psychiatric Center, 85 Misc.2d 48, 56, 378 N.Y.S.2d 590, 597). The court concluded that this established nothing as to his dangerousness or lack of it, which is The ......
  • Torsney, Matter of
    • United States
    • New York Supreme Court — Appellate Division
    • February 5, 1979
    ...over the Lublin hearing at the County Court, considered the "very concept of dangerousness * * * (to be) vague and elusive" (85 Misc.2d 48, 53, 378 N.Y.S.2d 590, 595). (See, also, Matter of Miller (Sherman), 73 Misc.2d 690, 342 N.Y.S.2d 315; Lee v. Kolb, D.C., 449 F.Supp. 1368.) In Lee v. K......

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