State ex rel. Harkavy v. Consilvio

Decision Date21 November 2006
PartiesSTATE of New York ex rel. Stephen J. HARKAVY, on Behalf of John Doe Nos. 1 through 12, Appellant, v. Eileen CONSILVIO, as Executive Director of Manhattan Psychiatric Center and Kirby Forensic Psychiatric Center, Respondent.
CourtNew York Court of Appeals Court of Appeals
859 N.E.2d 508
7 N.Y.3d 607
STATE of New York ex rel. Stephen J. HARKAVY, on Behalf of John Doe Nos. 1 through 12, Appellant,
v.
Eileen CONSILVIO, as Executive Director of Manhattan Psychiatric Center and Kirby Forensic Psychiatric Center, Respondent.
Court of Appeals of New York.
November 21, 2006.

Page 509

Mental Hygiene Legal Service, First Judicial Department, New York City (Sadie Zea Ishee, Stephen J. Harkavy and Karen Gomes Andreasian of counsel), for appellant.

Eliot Spitzer, Attorney General, New York City (Caitlin J. Halligan, Daniel Smirlock and Benjamin N. Gutman of counsel), for respondent.

OPINION OF THE COURT

CIPARICK, J.


The issue presented by this appeal is whether the procedure employed by the State in involuntarily committing certain sex offenders leaving the custody of the Department of Correctional Services (DOCS) was proper. In the absence of specific statutory authority governing the release of felony offenders from prison to a psychiatric hospital, we hold that the procedures set forth in Correction Law § 402, rather than Mental Hygiene Law article 9, better suit this situation.

Petitioners were in the custody of DOCS, and nearing the end of their prison sentences for various felony sex offenses, when they were examined by two Office of Mental Health (OMH) physicians for the purpose of involuntary commitment to an OMH facility. The OMH physicians certified that each petitioner suffered from a mental illness and that without inpatient psychiatric treatment, each posed a high risk of recommitting sexual crimes if released into the community. The prison superintendents completed applications for involuntary commitment on medical certification, pursuant to Mental Hygiene Law § 9.27. As petitioners' prison terms expired, they were each transported under guard to the Manhattan Psychiatric Center (MPC), where each was further examined by a third OMH physician who also found involuntary commitment necessary.

Mental Hygiene Legal Service initiated this habeas corpus proceeding on behalf of petitioners seeking their immediate release. Petitioners argued that since they were undergoing a sentence of imprisonment, it was illegal for the State to transfer them into the mental health system pursuant to article 9 of the Mental Hygiene Law. They argued that the State was required to comply with the procedures set forth in Correction Law § 402, which governs the commitment of mentally ill prisoners to psychiatric hospitals, and that a prison superintendent is not authorized to file an application for involuntary commitment.

The State contended that petitioners were no longer undergoing a sentence of imprisonment since they were either being conditionally released, being released to parole supervision, or being released because their term of imprisonment was about to expire. The State also argued

Page 510

that the provisions of Mental Hygiene Law § 33.15 govern this habeas corpus proceeding and that the habeas court is therefore required to examine the alleged mental illness of each petitioner in addition to any alleged procedural irregularities.

Supreme Court granted the petition by ordering petitioners' conditional release, finding that the State's use of article 9 of the Mental Hygiene Law deprived petitioners of protections afforded to prisoners under the provisions of Correction Law § 402. Supreme Court opined that the State should have followed Correction Law § 402's involuntary commitment procedures, because each petitioner was in fact imprisoned at the time of his involuntary commitment. Additionally, Supreme Court held that a prison superintendent is an authorized applicant under Mental Hygiene Law § 9.27(b). Supreme Court also held that this proceeding was improperly brought under CPLR article 70, but granted a conditional release order unless a retention hearing was begun and concluded expeditiously.

The Appellate Division reversed, on the law, vacated the order for conditional release and dismissed the petition. The Appellate Division concluded that the State properly committed the petitioners under Mental Hygiene Law article 9, holding that since Correction Law § 402 "applies only to persons undergoing a sentence of imprisonment, it contemplates return to a DOCS facility" (29 A.D.3d 221, 225, 812 N.Y.S.2d 496 [2006]), whereas these petitioners were not returning to DOCS custody but were instead soon to be released. Furthermore, the Appellate Division agreed with Supreme Court that petitioners should have brought this petition pursuant to the more specific habeas corpus provision in Mental Hygiene Law § 33.15, and that Supreme Court erred by "conditionally releasing petitioners without conducting its own review as to the state of each individual's mental disability" (29 A.D.3d at 228, 812 N.Y.S.2d 496) as required by Mental Hygiene Law § 33.15. We disagree with the Appellate Division's conclusion that the article 9 procedure was proper and therefore reverse, remitting the matter to Supreme Court for further proceedings.

As a preliminary matter, we agree with the courts below that prison superintendents would have been proper persons to execute the applications for involuntary commitment. However, we disagree that proceeding under the Mental Hygiene Law was proper, since...

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29 cases
  • State v. Floyd Y.
    • United States
    • New York Court of Appeals Court of Appeals
    • November 19, 2013
    ...DOCS routinely made such transfers even though it lacked statutory authority to do so ( see State of N.Y. ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 825 N.Y.S.2d 702, 859 N.E.2d 508 [2006] ). During Floyd Y.'s unlawful confinement at Kirby, he was diagnosed with polysubstance abuse, pedoph......
  • ex rel. Leo v. Stanley
    • United States
    • New York Supreme Court
    • July 29, 2015
    ...‘either by the person for whose relief it is intended, or by some person in his behalf’ ”]; cf. State ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 825 N.Y.S.2d 702, 859 N.E.2d 508 [2006] [assuming without deciding that Mental Hygiene Legal Service had standing to initiate habeas proceeding o......
  • State v. Floyd Y.
    • United States
    • New York Court of Appeals Court of Appeals
    • November 19, 2013
    ...DOCS routinely made such transfers even though it lacked statutory authority to do so ( see State of N.Y. ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 825 N.Y.S.2d 702, 859 N.E.2d 508 [2006] ). During Floyd Y.'s unlawful confinement at Kirby, he was diagnosed with polysubstance abuse, pedoph......
  • Article 70 of the CPLR for A Writ of Habeas Corpus, the Nonhuman Rights Project, Inc. ex rel. Hercules & Leo v. Stanley
    • United States
    • New York Supreme Court
    • July 29, 2015
    ...‘either by the person for whose relief it is intended, or by some person in his behalf’ ”]; cf. State ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 825 N.Y.S.2d 702, 859 N.E.2d 508 [2006] [assuming without deciding that Mental Hygiene Legal Service had standing to initiate habeas proceeding o......
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