People v. McNelly

• Decision Date: 02 June 1975
• Citation: 371 N.Y.S.2d 538,83 Misc.2d 262
• Parties: PEOPLE of the State of New York, v. Ronald McNELLY, Defendant.
• Court: New York Supreme Court

Page 538

371 N.Y.S.2d 538

83 Misc.2d 262

PEOPLE of the State of New York, v. Ronald McNELLY, Defendant.

Supreme Court, Trial Term, New York County, Part 43.

June 2, 1975.

Irwin Rochman, New York City, for defendant.

Robert Morgenthau, Dist. Atty. by Daniel Krasnow, Asst. Dist. Atty.

Simon Rosenzweig, Director, Mental Health Information Service, 1st Judicial Dept., New York City, June Resnick German, Senior Atty., amicus curiae.

Louis J. Lefkowitz, Atty. Gen. (Sall J. Sidoti, New York City, of counsel), amicus curiae for State of New York.

MARTIN B. STECHER, Justice.

Ronald McNelly is 23 years old. On December 20, 1973, at the premises of a well-known restaurant in New York City, he drew a pistol and fired at the head waiter, at three policemen who came to subdue him and did considerable property damage. Nobody but McNelly himself was injured and he not seriously.

He was indicted on January 16, 1974 for crimes arising from the shooting and possession of a weapon. By order of the Court dated February 5, 1974, it was determined 'that the said defendant as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense' and he was 'adjudicated an incapacitated person' (but not a dangerous incapacitated person, C.P.L. 730.10, subd. 9) and was committed to the custody of the Commissioner of Mental Hygiene for care and treatment.

On April 19, 1974, the director of Mid-Hudson Psychiatric Center certified to the Court that McNelly was sufficiently recovered 'to understand his charges, expound upon them, and establish collaborative relationships with both staff and the rest of the patient population.' The director concluded that McNELLY was 'fit to proceed'. On April 30, 1974 an order to such effect was entered.

The defendant has pleaded not guilty to the indictment asserting that 'as a result of mental disease or defect, he lack(ed) substantial capacity to know or appreciate either: a) The nature and consequence of such conduct; or b) That such conduct was wrong' (P.L. 30.05). After trial without a jury, I find that, at the time of the incidents alleged in the indictment, Ronald McNelly, as a result of mental disease and defect, lacked substantial capacity to know or appreciate the nature and consequence of his acts or that the conduct described in the indictment was wrong. He is, therefore, not guilty of any of the crimes charged in the said indictment.

A literal reading of the provisions of Section 330.20 of the Criminal Procedure Law obligates me to commit the defendant, forthwith, to the custody of the Commissioner of Mental Hygiene to remain in a State institution designated by the Commissioner until either the Commissioner concludes that McNelly 'may be discharged or released on condition without danger to himself or to others' and makes application therefor to the Court (which shall then appoint examining psychiatrists, hold a hearing and make an appropriate decision); or the defendant himself makes application to the Court and proves that he is entitled to be released. Presumably, the defendant's retention by the Commissioner is always subject to review on a writ of habeas corpus. No other review is spelled out in the statute.

The defendant attacks the statute as denying him due process of law in that it provides for deprivation of his liberty without even a hearing (Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 28 L.Ed.2d 113); and as denying him equal protection of the laws in that persons escaping criminal liability because of mental disease suffered at the time the acts were committed are subject 'to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses' (Jackson v. Indiana, 406 U.S. 715, 730, 92 S.Ct. 1845, 1854, 32 L.Ed.2d 435).

Subdivision 1 of Section 330.20 C.P.L. (requiring commitment to the Commissioner's custody 'upon rendition of a verdict of acquittal by reason of mental disease or defect') 'has been on the statute books for many years, the other subdivisions having been added in 1960' (People v. Lally, 19 N.Y.2d 27, 30, 277 N.Y.S.2d 654, 656, 224 N.E.2d 87, 89); but no court may enforce the statute as written (Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966)); People v. Lally, supra (1966)). It is regrettable that, except for the recent amendment to subdivision 6, the Legislature has not seen fit to amend the statute to conform to constitutional requirements, leaving each judge to refashion the statute under the guise of interpretation to preserve its constitutionality (Matter of Bell v. Waterfront Commission of New York Harbor, 20 N.Y.2d 54, 62, 281 N.Y.S.2d 753, 760, 228 N.E.2d 758, 763; Redlich v. Capri Cinema, Inc., 43 A.D.2d 27, 349 N.Y.S.2d 697, app. dism. 33 N.Y.2d 974, 353 N.Y.S.2d 738, 309 N.E.2d 136; cf. People v. Lally, supra, 19 N.Y.2d page 35, 277 N.Y.S.2d page 660, 224 N.E.2d page 92). We proceed in that fashion.

The defendant contends that to commit him to the Commissioner's custody now, without proof of current 'mental disease or defect' and without a hearing, simply because he suffered such disability one and one-half years ago is a denial of due process as well as a denial of equal protection of the laws. He further contends that procedures for dealing with persons of this class need not be standardized, but the court may look at available evidence to determine whether any commitment at all is warranted. The evidence upon which he relies is that he has been out of all institutions, on bail, for more than a year without incident; that he is undergoing chemotherapy (5 milligrams Stelazin twice daily) and psychotherapy (twice monthly); and that his psychotherapist is of the opinion, expressed in a recent letter, that 'any disruption of that treatment and any hospitalization or institutionalization might be extremely harmful to him at this time . . . The present diagnosis is schizophrenia, chronic undifferentiated. His prognosis is fair, provided that we are able to maintain the current level of individual psychotherapy and chemotherapy . . .'

The statute (C.P.L. 330.20) mandates the participation of the Commissioner of Mental Hygiene in the adjudication process; and although the court, as indicated above, may interpret the statute to remedy constitutional deficiencies, the court 'may not enlarge the wording of a statute even in favor of what may be deemed an equitable construction' (Matter of State v. Parker, 38 A.D.2d 542, 327 N.Y.S.2d 277, 278, aff'd 30 N.Y.2d 964, 335 N.Y.S.2d 827, 287 N.E.2d 618) for any purpose beyond preserving constitutionality. Assuming the persuasiveness of the evidence, the court may not amend the statute to adjudicate McNelly's status without the Commissioner's aid; and the application for release, now, from further restraint or supervision is denied.

The contention that commitment now to the custody of the Commissioner without prior adjudication of need therefore is a denial of equal protection of the laws is without merit. The Mental Hygiene Law contains numerous authorizations for involuntary hospitalization for examination Prior to judicial intervention. A person may be admitted on the certification of need by two physicians (M.H.L. 31.27); on certificate of a director of community services or his designee (M.H.L. 31.37); on the certification of a single physician on the staff of the admitting hospital (M.H.L. 31.39); on the application of certain peace officers in what appear to them to be 'emergencies' (M.H.L. 31.41); or upon request made to the director of community services by close family members of the patient, or by a physician or a peace officer (M.H.L. 31.45). Obviously, where need appears to exist, a brief period of hospitalization for the purposes of examination is no invasion of a patient's constitutional rights. A 'finding of a reasonable doubt as to defendant's sanity at the time of the offense provides sufficient warrant for further examination' (Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642, 651).

Some of the difficulty is semantic, the word 'commitment' (C.P.L. 330.20, subd. 1) carrying with it a concept of indefinite duration. Clearly, such commitment without hearing or proof of necessity would be an unconstitutional invasion of McNelly's rights, particularly where such safeguards are available in all other involuntary hospitalizations (Baxstrom v. Herold, supra, 383 U.S. page 112, 86 S.Ct. 760). 'Baxstrom . . . might be said to require the conclusion that, while prior criminal conduct is relevant to the determination whether a person is mentally ill and...