Neely v. Hogan

• Decision Date: 01 April 1970
• Parties: Theodore A. NEELY, Jr., on behalf of himself and all others similarly situated, Plaintiff, v. Frank S. HOGAN, individually and as District Attorney for New York County, and John F. Keenan, individually and as Assistant District Attorney for New York County, Defendants.
• Court: New York Supreme Court

Page 63

310 N.Y.S.2d 63

62 Misc.2d 1056

Theodore A. NEELY, Jr., on behalf of himself and all others

similarly situated, Plaintiff, v. Frank S. HOGAN, individually and as District Attorney for

New York County, and John F. Keenan, individually

and as Assistant District Attorney for

New York County, Defendants.

Supreme Court, Special Term, New York County, Part I.

April 1, 1970.

Bruce J. Ennis, New York City, for plaintiff.

Frank S. Hogan, Dist. Atty., New York County (Donald H. Heller, Whitestone, of counsel), for defendants.

JACOB MARKOWITZ, Justice.

Plaintiff, presently being held at Matteawan State Hospital, brings this action against the District Attorney of New York County and one of his assistants for a declaratory judgment. The action is brought in plaintiff's own behalf and as a class action under CPLR § 1005 on behalf of 'all persons now confined pursuant to the authority of the Code of Criminal Procedure, Sec. 662--b, who wish to assert motions attacking their indictments' (Complaint, par. 1). Defendants have moved to dismiss on dual grounds: (1) that plaintiff does not have legal capacity to sue and (2) that the complaint fails to state a cause of action. Plaintiff urges that since there are no material facts in dispute, which the court finds to be the case, the court, under CPLR § 3211(c), should treat the motion as a motion for summary judgment. He requests that the court direct the entry of summary judgment in plaintiff's favor under CPLR § 3212(b). The court finds that the matter is one suitable for summary disposition in accordance with this decision.

Prior to January, 1967 plaintiff had been a mental patient at Central Islip State Hospital for 17 years. During December, 1966 plaintiff was on leave from the hospital on a so-called 'home pass'. On December 22, 1966 one Edward Orman was shot and wounded in a New York City subway station. In January, 1967 plaintiff was arrested and charged with the crime and on February 2, 1967 he was indicted by the New York County Grand Jury and charged with assault in the first degree and related crimes. Subsequently, plaintiff made a motion for inspection of the Grand Jury minutes, which was denied by a Justice of this court (N.Y.L.J., March 20, 1967, p. 17 col. 1). Still later plaintiff was sent to Bellevue Hospital for an examination pursuant to section 662--b of the Code of Criminal Procedure. By order made by this court under date of July 6, 1967 plaintiff was found to be in 'such a state of idiocy, imbecility or insanity that he is now incapable of understanding the charge or proceedings against him, or of making his defense thereto' and he was ordered committed to the custody of the Commissioner of Mental Hygiene to be placed in an appropriate State institution. Shortly thereafter he was placed in Matteawan State Hospital, a hospital operated by the New York State Department of Correction, where he has now been confined for more than two and a half years.

Subsequently, Mr. Orman, the victim of the shooting, sued the State of New York in the Court of Claims, alleging the negligence of the Central Islip authorities in permitting a patient to leave the premises for a home visit and claiming that that negligence was the proximate cause of Mr. Orman's injuries (see, Orman v. State of New York, 59 Misc.2d 337, 299 N.Y.S.2d 510). As appears from the decision of Judge Simon in that case, only one witness who had claimed to have seen the shooting was brought forward and he testified in the Court of Claims action that he was 'reasonably sure' that Neely, the plaintiff here, was the assailant 'but not positive of the identification' (59 Misc.2d at p. 340, 299 N.Y.S.2d at p. 513). Against that background the Court of Claims found:

'For * * * damages to result from this claim the State must be found negligent and its negligence to have been the proximate cause of the attack of which claimant was the innocent and unprovoking victim. The evidence adduced does not support such findings since the proof does not warrant the court to hold that the patient on leave was the assailant. This determination would not affect the trial of the patient when and if he is found able to be tried nor would it affect the decision thereon.' (59 Misc.2d at p. 343, 299 N.Y.S.2d at p. 517)

In July of 1967, the attorney who had theretofore represented plaintiff had been advised by plaintiff's sister that his services were no longer required. The decision of the Court of Claims was filed on February 18, 1969. Prior thereto, on January 27, 1969, plaintiff's parents and his sister visited the offices of present counsel for plaintiff and formally retained him 'to obtain (plaintiff's) release from Matteawan State Hospital.'

After the instant action was commenced and question was raised about the new attorney's authority to represent the plaintiff, plaintiff himself signed a retainer agreement, dated January 7, 1970, retaining the new attorney to 'obtain my release from Matteawan State Hospital and dismiss the proceedings against me'.

On August 20, 1969, present counsel for plaintiff had written to defendant District Attorney requesting that, in the light of the Court of Claims decision in Orman v. State of New York, Supra, the District Attorney either consent to the dismissal of the indictment against plaintiff so as to facilitate his transfer back to Central Islip State Hospital or, in the alternative, that the District Attorney consent to the making of a motion to dismiss the indictment. Defendant Assistant District Attorney promptly replied to the effect that his office was studying the file and the Court of Claims decision to determine 'whether or not we will consent to the making of a motion to dismiss the indictment herein' and would contact counsel in the near future. Shortly thereafter he wrote plaintiff's attorney a second letter advising that, after careful study and evaluation 'this office sees no basis for dismissing the indictment against Mr. Neely'.

The second and definitive letter from the District Attorney's office made no reference to the request of plaintiff's attorney that the District Attorney consent to the making of a motion to dismiss the indictment, as distinguished from the request that the District Attorney consent to the dismissal of the indictment.

This action for a declaratory judgment followed. The demand is that the court enter judgment declaring Code of Criminal Procedure section 662--b(3) to be unconstitutional or, in the alternative, construing that section to permit plaintiff and others similarly situated to move for a dismissal of the indictment without the consent of the District Attorney and without waiting for two years from the date of their commitment to a mental institution. Plaintiff asks for a further declaration that he and all others similarly situated are entitled to retained counsel and, if indigent, assigned counsel to assist them in making such motions.

Certain of the issues raised can be disposed of in brief fashion.

First: The Court finds no basis for the maintenance of the action as a class action under CPLR § 1005. The complaint contains no allegation as to any wrong perpetrated on any member of the alleged class other than the plaintiff. Moreover, even if such allegations had been included the class action would fall under the rule that such an action 'may not be maintained where the wrongs asserted are individual to the different persons involved and each of the persons aggrieved 'may determine for himself the remedy which he will seek' and may be subject to 'a defense not available against others ". (Gaynor v. Rockefeller 15 N.Y.2d 120, 129, 256 N.Y.S.2d 584, 588, 204 N.E.2d 627, 631.)

Second: Since no proper class action is involved, there is no basis on which the Court may or should reach the question whether others whose situation may be similar to that of the plaintiff are entitled to retain counsel and, if indigent, assigned counsel to assist them in making motions addressed to the dismissal of their respective indictments. So far as the plaintiff himself is concerned, he is already represented by counsel, who has been retained to obtain plaintiff's release from Matteawan and to effect the dismissal of the indictment. Hence, there is no issue properly before the Court with respect to any right of the plaintiff to be represented by assigned counsel.

The disposition of these issues brings us to the central question presented on this motion, i.e., whether on the complaint before the Court and in light of the provisions of Code of Criminal Procedure Section 662--b, plaintiff can or should be granted a declaratory judgment with respect to his right to move to dismiss the indictment pending against him.

There appears to be no question but that plaintiff is suffering from mental illness. Indeed, in framing his request to the District Attorney as noted above, plaintiff's attorney sought, as an end result, the transfer of the plaintiff back to Central Islip State Hospital. There are vast differences between confinement in Matteawan, which is operated by the Department of Correction, and confinement in a civil hospital operated by the Department of Mental Hygiene. Matteawan is a maximum security institution, a term which in itself implies the imposition on its patients of various restrictions which are not applicable to civil patients. As to the differences in therapy available to patients at the two kinds of institutions, it is suitable to quote from a study made by a Special Committee of the Association of the Bar of the City of New York, Mental Illness, Due Process and the Criminal Defendant (1968), as follows (p. 62, footnote omitted):

'The committee's study of annual reports of Matteawan State Hospital from its opening to 1966 demonstrates that the problems of operating a mental hospital in the Department of Correction have changed very little since the first patients were moved from Auburn to Beacon in 1892. ...