Lublin v. Central Islip Psychiatric Center

Decision Date24 January 1977
Citation391 N.Y.S.2d 603,56 A.D.2d 1
PartiesIn the Matter of Laurence LUBLIN, Appellant, v. The CENTRAL ISLIP PSYCHIATRIC CENTER, Respondent.
CourtNew York Supreme Court — Appellate Division

Donald W. Leo, Coram, for appellant.

Louis J. Lefkowitz, Atty. Gen., New York City (Sall J. Sidoti, Samuel A. Hirshowitz, Thomas P. Dorsey and Walton .a. Sutherland, New York City, of counsel), for respondent.

Before HOPKINS, Acting P.J., and MARGETT, DAMIANI, SHAPIRO and TITONE, JJ.

SHAPIRO, Justice.

The petitioner was found not guilty of the crime of murder by reason of his insanity. He now appeals from an order of the County Court, Suffolk County, dated January 8, 1976, which, after a hearing, denied his motion, made pursuant to CPL 330.20, seeking his discharge or release from the Central Islip Psychiatric Center. The petitioner also appeals from (1) two orders of the same court, both dated September 10, 1975, which authorized the District Attorney of Suffolk County to employ two qualified psychiatrists to examine the petitioner and to testify, (2) so much of a further order of the same court, dated September 17, 1975, as denied his motion to close the hearing pursuant to rule 694.7 (subd. (c)) of the Rules of this court (22 NYCRR 694.7(c)) and (3) another order of the same court, dated February 23, 1976, which denied his motion for reargument. We reverse the order dated January 8, 1976 and remand the proceeding for the purpose hereafter stated.

THE ISSUES.

The major issue is whether the petitioner or the Commissioner of Mental Hygiene had the burden of establishing, under the provisions of CPL 330.20 (subd. 3), that the court be 'satisfied that the committed person may be discharged or released on condition without danger to himself or others'. The County Court held that the burden of proof was on the petitioner.

A second issue is whether the District Attorney who, under the statute, must receive from the Commissioner of Mental Hygiene a copy of the application for release or discharge of the committed person, may be authorized by the court hearing the application to employ psychiatrists to examine the person and call them to testify as to the person's mental condition. The County Court held that it could so authorize the District Attorney. The third issue is whether the County Court committed error in denying petitioner's motion that the hearing be held In camera.

THE GOVERNING STATUTE.

CPL 330.20, which deals with the commitment, confinement and release of a defendant acquitted on the ground of mental disease or defect, provides, in relevant part, as follows:

'1. Upon rendition of a verdict of acquittal by reason of mental disease or defect, the court must order the defendant to be committed to the custody of the commissioner of mental hygiene to be placed in an appropriate institution in the state department of mental hygiene. The court must direct the sheriff to temporarily hold the defendant pending designation of an appropriate institution in which the defendant must be placed, and when notified by the commissioner of mental hygiene of the designated institution, the sheriff must forthwith cause the defendant to be delivered to the head of such institution. Such defendant is entitled to the assistance of the mental health information service.

'2. If the commissioner of mental hygiene is of the opinion that a person committed to his custody, pursuant to subdivision one of this section, may be discharged or released on condition without danger to himself or to others, he must make application for the discharge or release of such person in a report to the court by which such person was committed and must transmit a copy of such application and report to the district attorney of the county from which the defendant was committed. The court may then appoint up to two qualified psychiatrists * * * to examine such person, to report within sixty days, or such longer period as the court determines to be necessary for the purpose, their opinion as to his mental condition. * * *

'3. If the court is satisfied that the committed person may be discharged or released on condition without danger to himself or others, the court must order his discharge, or his release on such conditions as the court determines to be necessary. If the court is not so satisfied, it must promptly order a hearing to determine whether such person may safely be discharged or released. Any such hearing shall be deemed a civil proceeding. After such a hearing, the committed person must be discharged, released on such conditions as the court determines to be necessary, or recommitted to the commissioner of mental hygiene. The commissioner of mental hygiene must make suitable provision for the care and supervision by the department of mental hygiene of persons released conditionally under this section.

'5. A committed person may make application for his discharge or release to the court by which he was committed, and if, after receiving a report of the commissioner of mental hygiene, the court considers there may be merit in the application, the court must follow the procedure prescribed in subdivisions two

and three of this section.' PROCEEDINGS PRELIMINARY TO THE

PETITIONER'S APPLICATION FOR HIS RELEASE.

The petitioner was indicted for the murder of his wife in 1971 and thereafter, in May, 1973, was found not guilty by reason of insanity or, as the statute states, 'by reason of mental disease or defect.' Pursuant to CPL 330.20 (subd. 1) he was committed to the custody of the Commissioner of Mental Hygiene who placed him in the Mid-Hudson Psychiatric Center at New Hampton, New York. On May 14, 1974 petitioner was transferred to the Central Islip Psychiatric Center. In the summer of 1974 the director of Central Islip established a Special Release Committee to examine the petitioner to determine whether he was ready to be discharged from the Center. On September 11, 1974 that committee reported in the negative. However, a second Special Release Committee, which was appointed soon after to re-examine the petitioner to determine whether he was ready for discharge, reported, on December 5, 1974, that he was ready for release. That report was signed by the Director of Central Islip in January, 1975 and was sent by him, with the petitioner's hospital record, to the Commissioner of Mental Hygiene.

In February, 1975 the Commissioner directed Dr. Alphonse P. Falco, a psychiatrist, to form a multi-disciplinary panel to examine the petitioner and make findings of fact and a recommendation on the petitioner's suitability for discharge. He did so. The panel consisted of Dr. Falco, Mr. Gail Kniffen, chief social worker of the Kings Park Psychiatric Center, and Mrs. Marge Lombardo, of the Mental Health Information Service. A report signed by Dr. Falco and Mr. Kniffen, dated February 28, 1975, was sent to the Long Island Regional Director of the Department of Mental Hygiene. The Falco-Kniffen report stated that the third member of the panel, Mrs. Lombardo, was present at all of the interviews and gave the other members the benefit of her observations, but requested that the report be considered independently of her opinions because her duties and responsibilities required that she remain unbiased. The report concluded that the petitioner was 'not now psychotic' and that if any recommendation were to be made regarding his application for release 'on the basis of Mr. Lublin's present mental status the panel is constrained to agree that he is not presently psychotic.' Their report also stated that they were unable to assess the risk in terms of safety of others if he were released; nor could they make any recommendations based on dangerousness 'since there were no available criteria to make this sort of prediction.' The report was based upon interviews with the petitioner, the ward staff and the petitioner's physicians and their acting unit chief. The ward staff was reported to be unanimous in the opinion that petitioner belonged somewhere else and that he might do well in Las Vegas, where he planned to go, 'because there is less structure out there,' though all were opposed to his release into a nearby community because they feared he would 'continue to plague and annoy them' and might, 'if thwarted, become violent'. The last view was based 'solely on the history of the homicide he previously committed.' The petitioner's physicians were unanimous in their opinion that at no time since his admission had he ever demonstrated any symptoms or signs indicative of a psychosis. There was also general agreement that no useful purpose would be served 'in continuing the patient at Central Islip.' The physicians also stated their belief that there was a possibility of satisfactory adjustment if the petitioner went to reside with his cousin in Nevada. The diagnostic impression of the signers of the report was that the petitioner was not presently psychotic, that he had an underlying sociopathic personality structure and that 'he is suffering from an emotional disorder with an effective component.'

On the basis of the foregoing report, the Commissioner of Mental Hygiene informed the court that he could not recommend the petitioner's release 'with any confidence that hazard would not attend on such release.'

THE PETITION AND THE COURT'S ACTIONS THEREON.

On April 4, 1975, pursuant to CPL 330.20 (subd. 5), the petitioner commenced this proceeding in which he requested an order discharging him on such condition as the court deems to be necessary. Counsel was appointed for him under article 18--B of the County Law.

In May and June, 1975, the County Court Judge, pursuant to CPL 330.20 (subd. 2), appointed Drs. Morris Binder and Stephen Pellathy, qualified psychiatrists, to examine the petitioner and to report to the court their opinion as to his mental condition. The petitioner then moved to close the hearing; the motion was opposed by the petitioner's moth...

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