Rose, Matter of

• Decision Date: 04 June 1981
• Citation: 441 N.Y.S.2d 161,109 Misc.2d 960
• Parties: In the Matter of Charles ROSE, a patient retained pursuant to CPL 330.20.
• Court: New York Supreme Court

Page 161

441 N.Y.S.2d 161

109 Misc.2d 960

In the Matter of Charles ROSE, a patient retained pursuant to CPL 330.20.

Supreme Court, Criminal Term Kings County, Part 9.

June 4, 1981.

Eugene Gold, Dist. Atty., Kings County, Brooklyn, by Hazel Sandomire Mushynsky, Asst. Dist. Atty., Brooklyn, for the People.

Francis M. Savastano, Director, Mental Health Information Service, Mineola, for petitioner; Dennis F. Feld, Mineola, of counsel.

JOSEPH SLAVIN, Justice.

Defendant, an acquittee of the crimes of murder by reason of mental disease or defect, petitions this court for a rehearing after a denial by Mr. Justice Rigler of a dual application (writ of habeas corpus by defendant for his discharge and petition by the Commissioner of Mental Hygiene for release of defendant on conditions) deemed by the court one application by the Commissioner pursuant to Criminal Procedure Law (CPL) section 330.20(12). Both applications were made prior to the amendment of CPL 330.20, but as consolidated were tried by Mr. Justice Rigler under the statute as amended, effective September 1, 1980.

Defendant's request for a rehearing contains the demand that it be held before a jury and that the court appoint two qualified psychiatrists to examine him, make their report in writing and, if necessary, be required to testify.

To expedite this proceeding, the court entered an interim order granting petitioner's petition for a rehearing, appointed two psychiatrists to examine the petitioner and stated that a memorandum decision will follow.

The District Attorney opposed the grant of a rehearing contending:

(1) "It is not a violation of equal protection" to deny a rehearing on a release application by the Commissioner;

(2) If a rehearing should be granted, "its scope should be limited to that evidence presented at the first hearing";

(3) The prior decision of Mr. Justice Rigler is the law of the case and is binding on this court;

(4) "The proper standard of proof upon the rehearing is 'fair preponderance' ".

Contentions (5) and (6) will not be discussed as there is no real dispute with respect thereto. The hearing shall be held as a civil proceeding with a jury of six impanelled and a unanimous verdict will not be required.

This proceeding being the first of its nature under the statute as amended (CPL 330.20), the court, in charting its course through the shoals of divergent and differing opinions rendered in our courts of appellate and coordinate jurisdiction, and in the federal courts, will consider each of the contested objections of the District Attorney.

The rights of the mentally afflicted, as conceived by our courts and as directed to those acquitted of heinous crimes, are most difficult of definition without a visual portrayal of the reported subhuman conditions that impelled our courts to decry basic denial of human decency and of elemental constitutional rights to those hidden from public view and confined to guarded "hospitals" for the insane.

Daniel M'Naghten, tried and acquitted of murder by reason of insanity, languished in a mental hospital for twenty-two years without the benefit of any further proceedings until he died. No court was ever called upon to determine whether his mental illness continued to the date of his death. Perhaps his case may be excused since it occurred during the years from 1843 to 1865 when the British were preoccupied with other matters affecting that nation. However, in the ensuing years such incidents did not go unnoticed or uncorrected.

A century later, in 1970, in U. S. ex rel. von Wolfersdorf v. Johnston, 317 F.Supp. 66, 67 (D.C.N.Y.), the relator initially was determined "insane" and "unable to stand trial" and had been confined for almost 20 years in a "more miserable" hospital, Matteawan State Hospital together with the "criminally insane" and other "dangerous" persons. "After seeking for many years" to be transferred, he applied for a writ of habeas corpus so that he might spend his last days, while awaiting death, in a more peaceful environment. Though, now 86 years of age and concededly suitable "in all medical respects for civil commitment * * * The court held such incarceration to have violated his protection against cruel and unusual punishment.

Similarly, in People v. Metesky, 71 Misc.2d 519, 336 N.Y.S.2d 581, the defendant was held in the same Matteawan State Hospital for fifteen years. The court, to grant him some measure of proper relief, read into existing statutes, to sustain their constitutionality, the right of defendant to a jury trial on the question of his retention. He was thereafter released.

These shameful pages of legal history, reflecting the insensitivity of the times, should have faded away as relics of abhorrence of misdeeds of bygone eras. But, alas, not so in the year of 1981. In Scott v. Plante, 641 F.2d 117, 128, 129 (3d Cir.), Scott, an acquittee of the crime of murder, was confined to a maximum security section of the Vroom Building, a "hospital" maintained in the enlightened city of Trenton, New Jersey. The court's straightforward description of conditions at the hospital reads as follows: "There was ample evidence that Scott and the other inmates were exposed for twenty-four years to subhuman living conditions including poor plumbing and leaking pipes covering the floor with inches of water; inoperative sinks and toilets; inadequate ventilation; absence of windows or inoperative windows; inability during seven months of the year to go into the yard for fresh air; inoperative radiators resulting in indoor temperatures below 50? , summer temperatures reading 105? due to absence of ventilating equipment". These conditions continued even though the hospital staff recommended that Scott be placed in a civil ward because of his cooperative behavior. Little regard and no relief was accorded to him in his various petitions for relief. These conditions continued to and "through the trial confined to a prison wing of the hospital which includes sentenced inmates suffering severe mental illnesses."

The court, in granting Scott basic relief, referred to the Baxstrom v. Herold case, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620, and more particularly to the transfer of 992 patients from Matteawan and to the report of researchers who found that "all but seven of the 992 had fared well enough in less secure, often unlocked facilities * * *. Indeed 147 were discharged to the community, far more than would have been released from Matteawan in an average year." (p. 130). The court then observed that "it should increase, courts' skepticism both about the claims that a person is dangerous and about claims that hospitalization is necessary" (p. 130).

This court has seemingly digressed from the basic issues here in order to depict the almost "foreordained" continuance of detention of criminal acquittees in secure "hospitals for the insane", because of the lack of proper statutory and judicial safeguards. Fortunately, safeguards are being increased and refined with each ensuing year.

Philosophically, this court not only adheres to and also agrees with the progressive thinking and holdings of our courts in their most recent decisions and will now consider the objections of the District Attorney within the background portrayal of the conditions to which the "insane" acquittees were subjected.

I. "IT IS NOT A VIOLATION OF EQUAL PROTECTION TO DENY" PETITIONER A REHEARING.

CPL section 330.20, prior to its amendment and its predecessors, provided in substance that either the Commissioner of Mental Hygiene may petition, upon noting the progress of the acquittee, for his release (subd. 2) or the committed acquittee, may make such application (subd. 5). In either instance "Any such hearing shall be deemed a civil proceeding" (subd. 3). Though section 330.20 did not provide for rehearings, the courts have uniformly granted rehearings after a denial of a release on conditions or of a discharge. On such rehearings, the committed person was entitled to a jury trial (see People v. Decker, 42 A.D.2d 857, 347 N.Y.S.2d 214, app. dism d. 34 N.Y.2d 565, 354 N.Y.S.2d 942, 310 N.E.2d 539; People v. McCabe, 74 Misc.2d 1060, 347 N.Y.S.2d 259; Matter of Lashaway v. Hanes, 78 Misc.2d 979, 985, 357 N.Y.S.2d 747). In Lashaway, the court approved the reading into statute by the court in People v. Metesky, 71 Misc.2d 519, 336 N.Y.S.2d 581, a right to a jury trial, and then stated: "It is inconceivable that the only recourse for an acquitted defendant retained as a civil patient is to continually apply for a nonjury hearing to the very same court which conducted the trial proceedings, the hearing for retention, and subsequent rehearings * * *. The Criminal Procedure Law does not provide for a jury trial within the provisions of Article 330. It is the determination of this court that the petitioner is entitled to a civil jury trial under provisions of CPL 330.20 * * *."

Section 330.20, as amended, now provides, as is pertinent, that upon entry of a verdict of not responsible for the crime charged, "the court" must immediately issue an "Examination order" (subd. 2). An initial hearing is then held to determine defendant's present mental condition and if the district attorney establishes to the satisfaction of the court that the defendant has a dangerous mental disorder or is mentally ill, the court "must issue a commitment order" (subd. 6).

The petitioner had "been hospitalized in various psychiatric institutions" since 1973 (date of his commission of the homicides). "In July 1976, he was acquitted of these charges by reason of mental disease or defect, and pursuant to law, has been retained in the custody of the Commissioner" (opinion of Rigler, J., p. 1). Thus, for the purposes of this proceeding and under the statute as amended, the petitioner is deemed to have been found to have a "dangerous mental disorder" and "a commitment order" had been issued authorizing defendant's confinement and...