Miller, Application of

Decision Date27 December 1972
Citation342 N.Y.S.2d 315,73 Misc.2d 690
PartiesApplication of Alan D. MILLER, Commissioner of Mental Hygiene of the State of New York, for the Discharge or Release From Custody of Bruce Arnold Sherman, a Committed Person, Pursuant to Section 330.20 of the Criminal Procedure Law.
CourtNew York County Court

Jack B. Lazarus, Monroe County Dist. Atty. (Eugene W. Bergin, Rochester, of counsel), for the People of the State of New York.

Thomas G. Presutti, Rochester, for Bruce Arnold Scherman, a committed person.



This is an application brought pursuant to Section 330.20 of the Criminal Procedure Law to discharge Bruce Arnold Sherman from the Rochester State Hospital, a civil institution of the State Department of Mental Hygiene, where he is presently confined after being acquitted by reason of insanity of the charge of murdering his wife in the afternoon of December 1, 1971 by shooting her five times with a .30--06 calibre rifle in the driveway of her house on Crimson Bramble Road in the Town of Henrietta, New York.

Sherman was tried before me, without a jury, on May 18 and 19, 1972. He was represented by retained counsel. The same counsel now appears for him in this proceeding.

Sherman and his wife had been separated for some time. On the day of the shooting, he had driven to Crimson Bramble Road and waited in his car until she returned home from work at 5 o'clock and shot her as she got out of her car to enter the house. She died almost immediately. The defendant's 11-year old daughter was home from school because of illness. Hearing the shots, she looked out of the livingroom window and saw her father's car drive away.

Several hours later, there was a complaint that someone was shooting from a car into the trailer home of defendant's parents on Walworth Road in Nunda. They were both home. His mother called the Sheriff. Upon arrival, the police first observed defendant in his car about 300 yards away from the house and he ultimately was taken into custody. Found in his automobile were the following items: 60 to 70 live rounds of 130--06 calibre cartridges; 40 to 50 live rounds of .243 calibre cartridges; one semi-automatic .30--06 Remington rifle; one bolt action .243 calibre Remington rifle with telescopic sights; 30--40 spent cartridges of both calibres; a half-consumed quart of liquor.

Dr. Wellington Reynolds and Dr. David J. Barry, court-appointed psychiatrists, found the defendant competent to stand trial and this finding was not contested.

The defendant pled not guilty by reason of insanity. At his trial Dr. William Libertson testified as a witness for the prosecution and Dr. Benjamin Pollock testified for the defense. Both medical witnesses gave it as their opinion that on December 1, 1971, when the defendant killed his wife, he lacked substantial capacity to know or appreciate either the nature and consequences of his conduct or that such conduct was wrong by reason of mental disease. There was no medical evidence to the contrary.

Although, as trier of the facts, I would ordinarily have found the guilt of the defendant proven beyond a reasonable doubt, I was compelled, because of the uncontroverted medical testimony, to deliver a verdict of acquittal by reason of insanity. (Penal Law, § 30.05; People v. Lee, 29 A.D.2d 837, 287 N.Y.S.2d 607; People v. Slaughter, 34 A.D.2d 50, 311 N.Y.S.2d 87). I then, also as required by law, ordered that the defendant be delivered into the custody of the Commissioner of Mental Hygiene (Crim.Proc.Law, § 330.20) and this was duly done on May 19, 1972.

Less than three months later, by letter dated August 10, 1972, the Commissioner of Mental Hygiene requested that proceedings be initiated, pursuant to section 330.20 of the Criminal Procedure Law, to release the defendant. This was based upon the recommendation of the Rochester State Hospital's Special Release Committee, consisting of Dr. Daniel Davis, Dr. Ursula Arnsdorff and Dr. Joseph Tymochko, who found after a meeting on July 14, 1972, that the defendant showed 'no evidence of being mentally ill or in need of continued hospital care.'

I thereupon requested the Monroe County Mental Health Clinic to arrange for independent examinations of the defendant by two qualified psychiatrists and Dr. David J. Barry and Dr. Wellington W. Reynolds were appointed for this purpose by the County Director of Mental Health Services.

Dr. Reynolds examined the defendant September 7, 1972 and Dr. Barry examined him September 13, 1972. Both found 'no evidence' of mental disorder. Dr. Barry's report stated that the defendant 'could be discharged without danger to himself or to others.' Dr. Reynolds' report found 'no evidence of potential hostility or dangerousness . . . He (defendant) is presently without psychosis and seems likely to continue his present recovery.'

I then directed that a hearing covering the issue of dangerousness be scheduled and this was done on October 2, 1972. At this first hearing Dr. Reynolds, Dr. Barry, Dr. Arnsdorff and Dr. Tymochko testified.

The issue to be decided was whether or not Sherman, if released, would be a danger to himself or to others (CPL § 330.20). Although entitled to a jury (People v. Lally, 19 N.Y.2d 27, 277 N.Y.S.2d 654, 224 N.E.2d 87), counsel for Sherman did not request one, and the hearing proceeded before me without a jury.

Parenthetically, it might also be noted that the holdings in People v. Haynes, 30 A.D.2d 705, 291 N.Y.S.2d 869, and Matter of Roberts v. County Court, 39 A.D.2d 246, 333 N.Y.S.2d 882, regarding disqualification, do not seem to apply where the issue involved at the trial was insanity at the time of the commission of the criminal offense, as here, rather than competency to stand trial, as in those cases. Accordingly, I did not disqualify myself from hearing this proceeding.

According to the testimony of Dr. Reynolds, Sherman indicated no hostility towards his father, who had shot petitioner in 1970, or towards his dead wife, and showed appropriate remorse. In Dr. Reynolds' opinion Sherman was without psychosis and, if released, would not be a menace to society nor would be represent a danger to himself or others. However, Dr. Reynolds admitted that he had spoken to neither Dr. Libertson nor to Dr. Pollock nor had he made himself familiar with their findings and conceded that he did not have an adequate history. He pointed out that his opinion was based solely upon the absence of mental sickness and confessed that he had minimal experience in matters of criminal responsibility. Dr. Reynolds recommended that, if Sherman is released, the stresses which were the original cause of his anxiety be proscribed and that contacts with those people who gave rise to his emotional condition at the time of the shooting be eliminated.

Dr. Arnsdorff testified that the Special Release Committee of the Rochester State Hospital met on July 14, 1972 for one and one-half hours. Sherman was at the meeting for about a half hour and interviewed. The committee members found no evidence of mental illness at the time of his examination. They were aware of his prior diagnosis of psychosis and of his prior suicide attempt, but did not have details of the attempted suicide and erroneously assumed that it had taken place in the jail after the petitioner had shot his wife. Dr. Arnsdorff testified that the report of the clinical psychiatrist at the hospital described Sherman as an 'explosive personality', that is a 'personality disorder involving a low-level of tolerance to stress situations.'

It was Dr. Arnsdorff's opinion that Sherman is no longer in need of hospitalization in a mental hospital and that he would not be a danger to himself or to others if released, provided he kept away from certain persons and stress situations. She recommended that if released, Sherman stay away from alcohol and from his father and that he receive training for some occupational skill.

However, upon further examination Dr. Arnsdorff disclosed that Sherman had a history of 'transient psychosis' and was unable to give an opinion as to the probability of recurrence of another such episode or the probability of his attempting suicide again.

Dr. Barry testified that he had seen Sherman on two occasions, once in April of 1972 with respect to the question of capacity to stand trial and, thereafter, on September 13, 1972 in connection with the issues involved in this proceeding. He obtained a history from Sherman at the time of the April examination and a further history at the time of the September examination. He had also reviewed Sherman's State Hospital records.

Dr. Barry found Sherman to be without any sign of mental disorder and not then suffering from a mental disorder. Dr. Barry testified that he knew of the diagnosis that had been made that Sherman was suffering from mental illness in December, 1971. Dr. Barry also knew Sherman's father had shot him and that Sherman had thereby become a paraplegic. He was also aware of Sherman's attempted suicide. Dr. Barry admitted he was unable to predict what was likely to occur in the future if Sherman were released, but testified he found no then hostility on Sherman's part against his father and no likelihood of hostile action by Sherman against his father in the near future. Sherman's future, however, would be affected by possible alcohol abuse and would depend upon a change in his social milieu in order to eliminate the circumstances causing Sherman's prior emotional strain, particularly since he was still fearful of his father.

Dr. Barry recommended that if Sherman were released, his behavior be monitored by limitation of alcoholic consumption and the requirement that he regularly report to or meet with someone familiar with his past history and with a knowledge of what to be on the look out for. It was Dr. Barry's opinion that, subject to these conditions, Sherman could be released without danger to himself or to...

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  • Lublin v. Central Islip Psychiatric Center
    • United States
    • New York Supreme Court — Appellate Division
    • January 24, 1977
    ...danger to himself or others' citing, as authority, 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, Supra, Bolton v. Harris, 130 U.S.App.D.C. ......
  • Lublin, Application of
    • United States
    • New York County Court
    • January 8, 1976
    ...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.2......
  • Torsney, Matter of
    • United States
    • New York Supreme Court — Appellate Division
    • February 5, 1979
    ...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. Kolb, supra, p. 1381, a three-Judge court found the phrase to be "i......
  • Miller, Application of
    • United States
    • New York Supreme Court — Appellate Division
    • December 12, 1974
    ...who had presided over petitioner's homicide trial. After a second hearing on November 9, 1972 Judge Boehm, in an able opinion (73 Misc.2d 690, 342 N.Y.S.2d 315) in which he carefully reviewed all the evidence, analyzed the applicable statutory and decisional law and considered in depth the ......
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