People ex rel. Schreiner v. Tekben

• Decision Date: 23 December 1993
• Citation: 160 Misc.2d 34,607 N.Y.S.2d 850
• Parties: The PEOPLE of the State of New York ex rel. Richard SCHREINER, Petitioner, v. Dr. Erdogan TEKBEN, Director, Mid-Hudson Psychiatric Center, New Hampton, NY, Respondent.
• Court: New York Supreme Court

Page 850

607 N.Y.S.2d 850

160 Misc.2d 34

The PEOPLE of the State of New York ex rel. Richard SCHREINER, Petitioner, v. Dr. Erdogan TEKBEN, Director, Mid-Hudson Psychiatric Center New Hampton, NY, Respondent.

Supreme Court, Orange County.

Dec. 23, 1993.

Gerald W. Kaplan, Director, Mental Hygiene Legal Service by Selina M. Brooks, Mineola, for petitioner.

Richard A. Brown, Dist. Atty., Queens Co. by Michael P. Kavanagh, Long Island City, and Robert Abrams, Atty. Gen. by Michael Timm, Poughkeepsie, for respondent.

DONALD N. SILVERMAN, Justice.

Petitioner is currently detained, pursuant to CPL § 330.20(1)(c), in the Mid-Hudson Psychiatric Center, New Hampton, New York. A retention order of August 31, 1992 (Berman, J., Sup.Ct., Queens) is currently under appeal, leave having been granted by the Appellate Division, Second Department on November 9, 1992.

By petition for writ of habeas corpus, dated July 8, 1993, petitioner alleges that he is no longer mentally ill, nor currently suffering from a dangerous mental disorder, and is therefore entitled to be released (see CPL § 330.20[1][c], [d]; [12]. In support of this, petitioner has submitted an evaluation by Dr. Alan Tuckman. The report is dated September 2, 1993 and is based on evaluations conducted August 13 and 16, 1993. Dr. Tuckman's evaluation finds that petitioner is no longer suffering from a dangerous mental disorder. He recommends a transfer to a less secure facility. Petitioner has requested, alternatively, that he be transferred to a less secure facility.

The motion to dismiss sets forth three issues. First, whether a writ of habeas corpus lies when an appeal from an order of retention already addresses the issue central to the writ. Second, whether a writ of habeas corpus is the proper vehicle for transfer to a less secure facility, as opposed to outright release. Third, whether the writ for habeas corpus should be dismissed for petitioner's failure to first exhaust administrative remedies.

Regarding the first issue, habeas corpus relief should not take the place of, nor perform the functions of an appeal, see People ex rel. Doyle v. Atwell, 232 N.Y. 96, at 102, 133 N.E. 364 (1921), People ex rel. Douglas v. Vincent, 67 A.D.2d 587, 589, 416 N.Y.S.2d 307 (Second Dept., 1979), and also People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 262, 273 N.Y.S.2d 897, 220 N.E.2d 653 (1966), "[I]n such [a] case (where review of a mere error, allegedly committed at trial, is sought), the writ may not be utilized as a substitute for appeal...." Nevertheless, habeas corpus relief is to be afforded when dictated by reasons of practicality and necessity, Keitt, supra, at 262, 273 N.Y.S.2d 897, 220 N.E.2d 653. The right to the writ, "... is so primary and fundamental that it must take precedence over considerations of procedural orderliness and conformity." People v. Schildhaus, 8 N.Y.2d 33, 36, 201 N.Y.S.2d 97, 167 N.E.2d 640 (1960). Indeed, "[C]ases within the relief afforded by it at common law cannot ... be placed beyond its reach and remedial action." People ex rel. Tweed v. Liscomb, 60 N.Y. 559, 566 (1875).

Here, the application for the writ was made after a substantial lapse of time from the retention order. It is petitioner's contention that he is not dangerously mentally ill at this time. This contention is supported by the recent report of a psychiatric evaluation finding petitioner not to be dangerously mentally ill. Arguably, such a finding by this Court would entitle petitioner to conditional release, see People ex rel. Thorpe v. Von Holden, 63 N.Y.2d 546, 555, 483 N.Y.S.2d 662, 473 N.E.2d 14 (1984).

The Court finds that the appeal concerns petitioner's mental health at a substantially different point in time from the instant application. Prompt determination of this liberty issue necessarily justifies consideration of the writ notwithstanding the pending appeal.

The second issue addresses whether habeas corpus is the appropriate procedural vehicle for transfer, rather than immediate and outright release. The writ of habeas corpus has been characterized as one of great flexibility and vague scope, see Keitt, supra, 18 N.Y.2d at 263, 273 N.Y.S.2d 897, 220 N.E.2d 653. The writ has been recognized as a viable procedural vehicle for a person committed pursuant to CPL § 330.20, see Matter of Mental Hygiene Legal Services v. Wack, 148 A.D.2d 341, 538 N.Y.S.2d 554, aff'd 75 N.Y.2d 751, 551 N.Y.S.2d 894, 551 N.E.2d 95 (1989), People ex rel. Brown v. Johnston, 9 N.Y.2d 482, 485, 215 N.Y.S.2d 44, 174 N.E.2d 725 (1961), and see also U.S. ex rel. Wolfersdorf v. Johnston, 317 F.Supp. 66 (S.D.N.Y., 1970). Administrative convenience does not justify denial of a writ, see Brown, supra, 9 N.Y.2d at 486, 215 N.Y.S.2d 44, 174 N.E.2d 725. In contrast to these cases petitioner herein has available to him administrative procedures which provide, where appropriate, for transfer to a less secure facility. Although habeas corpus may in certain cases provide the only avenue to challenge a type of confinement, in cases such as this, where other procedural means are available, habeas corpus relief is not appropriate, see People ex rel. Walker v. NYS Board of Parole, 98 A.D.2d 33, 469 N.Y.S.2d 780 (1983).

In Carvalho v. Wack, NYLJ, July 20, 1993, p. 22, col. 5, the Court held: "[T]he writ's extraordinary remedy is available only if it results in immediate release from custody and is not available where the relief requested will result in something other than immediate release," citing People ex rel. Ruckdeschel v. LeFevre, 100 A.D.2d 643, 473 N.Y.S.2d 65, appeal denied 62 N.Y.2d 605, 479 N.Y.S.2d 1026, 467 N.E.2d 895 (1984). Finding that a writ did not lie for purposes other than for immediate release, the Court converted the writ to an article 78 petition seeking declaratory judgment, see also People ex rel. Alan PP v. Dunston, 114 A.D.2d 678, 494 N.Y.S.2d 251 (Third Dept., 1985) and People ex rel. Kowalczyk v. LeFevre, 70 A.D.2d 745, 417 N.Y.S.2d 27 (Third Dept., 1979), and as a companion case to Carvalho, see People v. Herndon, NYLJ, July 20, 1993, p. 22, col. 4.

The Court, in Carvalho, reasoned that the writ was not designed to bypass administrative procedures otherwise available and not exhausted (p. 23). The Court interpreted 14 NYCRR § 541.9(b) to afford petitioner, through her treatment team, the right to initiate a transfer request under this section. A detainee's remedy for refusal by the treatment team to initiate the request is an article 78 proceeding. Hence, the regulations were held to provide an administrative remedy which must be exhausted before commencing an article 78 proceeding.

The AG submits an affidavit from a R.P....