Robert C. v. Wack

• Decision Date: 31 October 1995
• Citation: 635 N.Y.S.2d 426,167 Misc.2d 677
• Parties: In the Matter of ROBERT C., Petitioner, v. Renate WACK, as Director of Kirby Forensic Psychiatric Center, Respondent.
• Court: New York Supreme Court

Page 426

635 N.Y.S.2d 426

167 Misc.2d 677

In the Matter of ROBERT C., Petitioner, v. Renate WACK, as Director of Kirby Forensic Psychiatric Center, Respondent.

Supreme Court, New York County.

Oct. 31, 1995.

[167 Misc.2d 678] Mental Hygiene Legal Services (Marvin Berstein, Starr McFerrin-Clancy and Steven Harkavy, of counsel), for petitioner.

Dennis C. Vacco, Attorney-General (Edward J. Curtis, Jr., Valerie Singleton and Sal Sidoti, of counsel), for respondent.

MICHAEL D. STALLMAN, Justice.

At issue is the scope of the jury's role in a rehearing and review proceeding concerning the continued involuntary retention of a civilly committed psychiatric patient.

FACTS

Petitioner is a long-term, civilly committed mental patient, currently under involuntary in-patient treatment at the Kirby Center, a high security state psychiatric hospital. Petitioner was administratively transferred from a non-secure mental hospital to a secure facility in 1992, pursuant to 14 NYCRR Part 57. ¹ Petitioner, who did not challenge, and does not here challenge the transfer, has already had two judicial retention hearings, in which the justices found, inter alia, that he was still mentally ill and in need of retention.

In this proceeding, petitioner seeks a rehearing and review (Mental Hygiene Law sec. 9.35) of the most recent retention order. The State moves for partial dismissal of the request for a trial de novo on the issues of the patient's dangerous mental disorder and the need for his retention in a secure facility, and of the petitioner's request for transfer to a non-secure state psychiatric hospital. In his moving affidavit, petitioner asserts that he does not suffer from a dangerous mental disorder and does not need retention in a secure facility; and that he is not mentally ill or in need of retention in any facility.

I

Mental Hygiene Law Section 9.35, applicable to all involuntarily confined psychiatric patients, provides that any such person "who has been denied release" may seek a "rehearing and review" before a different justice and a jury.

Such justice shall cause a jury to be summoned and shall try the question of the mental illness and the need for the retention of the patient so authorized to be retained ... If the verdict of the jury ... be that such person is not mentally ill or is not in need of retention, the justice shall forthwith discharge him, but if the verdict of the jury ... be that such person is mentally ill and in need of retention the justice shall certify that fact and make an order authorizing continued retention....

New York common law has long recognized the practice of using juries to inquire into the mental illness of persons subject to incompetency proceedings and involuntary commitment to mental institutions. Although resort to a writ of habeas corpus was always available, the usual practice dating back to British times was for the alleged "lunatic" to obtain a writ de lunatico inquirendo, which required that a jury be summoned to inquire if the person had a mental disorder that required confinement or deprivation of control over property. See, Sporza v. German Savings Bank, 192 N.Y. 8, 84 N.E. 406. The purpose of the jury verdict was to inform the court's conscience--i.e., it was an advisory verdict. See Sporza, supra; Matter of Tracy, 1 Paige 580; Matter of Mason, 1 Barb. 436.

The first state constitution declared: "Trial by jury, in all cases, in which it hath heretofore been used in the colony of New-York, shall be established, and remain inviolate forever." N.Y. Const. 1777, Art. XLI. This provision appeared in substantially the same form in all 19th Century constitutions. N.Y. Const. 1821, Art. VII, § 2; N.Y. Const. 1846, Art. I, § 2; N.Y. Const. 1894, Art. I, § 2. The current provision guarantees a jury trial "in all cases in which it has heretofore been guaranteed by constitutional provision". N.Y. Const.1938, Art. I, § 2. In Sporza, supra, 192 N.Y. at 17, 84 N.E. 406, the Court of Appeals held that from the time this constitutional provision was first enacted, "the custom prevailed on the part of the chancellor, in order to inform his conscience, to require a trial by jury on the question of insanity". The Court recognized that this advisory practice thereby became a constitutional right.

Jury trial on the issue of the "fact of the lunacy" became a statutory right in 1842, in substantially the current form. L.1842, ch. 135. A certificate signed by two physicians triggered a hearing in court. If the person adjudged lunatic was dissatisfied with the result, he could petition one of the judges of the county to call a jury to determine the fact of the lunacy, i.e., the issue of the person's mental illness and need of retention. This basic statutory procedure has continued in subsequent recodifications ², including current MHL Section 9.35. In the 1972 recodification of the Mental Hygiene Law, the Legislature refined the jury question to the current form: mental illness and the need for retention. L.1972, ch. 251, § 31.35.

II

Petitioner asserts that MHL Section 9.35 is merely a procedural vehicle, intended only to implement the right to a jury trial. He further argues that former criminal defendant-insanity acquittees are entitled to jury review of all issues under CPL Section 330.20, including that of dangerous mental disorder and the need for secure retention, or transfer to a non-secure, civil mental hospital if the jury finds the patient no longer dangerous; and that equal protection requires that civilly committed patients like himself should have the same right to such a broad jury review. Petitioner's premises and conclusions are incorrect.

The plain text of MHL Section 9.35 demonstrates that it is much more than a procedural mechanism. Rather, it specifically delimits the scope of jury review to "mental illness" and the "need for retention".

"Dangerous mental disorder" and "secure facility" are terms of art defined by the Criminal Procedure Law. CPL Sec. 330.20(1). They were adopted as an integral part of the three-tier post-trial classification procedure adopted in 1980 for insanity-acquittees, i.e., criminal defendants found not responsible by reason of mental disease or defect. L.1980, ch. 548; see Matter of George L., 85 N.Y.2d 295, 624 N.Y.S.2d 99, 648 N.E.2d 475. These CPL terms, and the classification standards and procedures to which they relate, do not exist under the Mental Hygiene Law. They do not relate to the MHL definition of "mental illness" or the MHL standard for retention of a civilly committed, non-CPL section 330.20 mental patient. They are inapplicable to the case at bar.

The MHL defines "mental illness" as:

"an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation." MHL sec. 1.03(20).

A civilly committed mental patient can be involuntarily retained, if "care and treatment * * * in a hospital is essential to such person's welfare" and if the patient's "judgment is so impaired that he is unable to understand the need for such care and treatment." MHL Sec. 9.01. Caselaw has imposed an additional due process-required element: The patient must continue to pose "a substantial threat of physical harm to himself or others;" such harm could result from, e.g., the patient's failure to meet essential needs for food, clothing or shelter, or to perform the commonly understood activities of daily living. Matter of Harry M., 96 A.D.2d 201, 208, 468 N.Y.S.2d 359; see Matter of Boggs, 132 A.D.2d 340, 523 N.Y.S.2d 71, app. dismissed, 70 N.Y.2d 972, 525 N.Y.S.2d 796, 520 N.E.2d 515; Project Release v. Prevost, 722 F.2d 960 (2d Cir.1983). This kind of "dangerousness" need not involve violent, aggressive or criminal behavior or ideation; it would not necessarily constitute the current physical dangerousness which is an element of a dangerous mental disorder under the CPL. Cf. Matter of George L., supra.

In contrast, while the CPL 330.20 definition of dangerous mental disorder incorporates by reference the MHL definition of mental illness, it also requires a finding of current physical dangerousness under a different standard than the civil commitment standard discussed supra. CPL 330.20(1)(c). In a CPL retention hearing, proof of the elements of a dangerous mental disorder alone suffices to require secure retention. Under the CPL, the result follows automatically from the adjudication of the status. In a civil commitment case, both mental illness, and the above enumerated elements of involuntary civil retention, must be proven. ³ The issues of "dangerous mental disorder" and "secure retention" are inapplicable to a non-CPL patient and are thus not in issue in the MHL section 9.35 retention proceeding; a fortiori, they are not subject to determination by a jury in a rehearing and review proceeding.

The incorporation by reference in CPL Section 330.20(16) of the MHL Section 9.35 rehearing and review provision means that a CPL patient's right to a jury trial is no greater than that of a civilly committed MHL patient. CPL Sec. 330.20(17); see Matter of Daniel R. v. Wack, 167 Misc.2d 74, 634 N.Y.S.2d 943, and cases cited therein. Because the issues of "dangerous mental disorder" and "secure retention" are not jury issues in a MHL rehearing and review, and given the CPL language and legislative history, they are not jury issues in a CPL rehearing and review. Matter of Daniel R., supra. Since CPL patients lack the broad right to jury review that petitioner incorrectly hypothesizes they have, and since petitioner mistakenly assumes that the same standards should, and do apply to both CPL and MHL retention hearings, his argument lacks logic and merit. Petitioner's reliance on cases concerning retention of insanity-acquittees, particularly those predating the 1980 adoption of current ...