State ex rel. Harkavy v. Consilvio

• Decision Date: 21 November 2006
• Parties: 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: New 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.

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 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 petitioners were still prison inmates and therefore subject to the provisions of the Correction Law at the time the applications were initiated.

The Mental Hygiene Law provides that "[u]nless otherwise specifically provided for by statute, a mentally ill person shall be admitted to a hospital as an in-patient only pursuant to the provisions of this article" (Mental Hygiene Law § 9.03). Mental Hygiene Law § 9.27(a) authorizes the involuntary hospitalization of persons who are mentally ill, are in need of involuntary care and treatment and present a danger to themselves or society. This is effectuated by the certification of mental illness and need for involuntary care and treatment by two physicians (see Mental Hygiene Law § 9.27[a]), followed by the submission by a statutorily designated person of an application for involuntary commitment on medical certification (see Mental Hygiene Law § 9.27[b], [c]) and a confirmatory examination to be performed by a physician at the receiving psychiatric facility (see Mental Hygiene Law § 9.27[e]). After commitment, the patient may request a hearing before a court on the issue of the need for hospitalization (see Mental Hygiene Law § 9.31). No such hearings were requested here.

Petitioners argue that at the time they were evaluated for involuntary commitment, and eventually committed, they were "undergoing a sentence of imprisonment," requiring the State to follow Correction Law § 402, which governs the transfer of mentally ill prisoners to psychiatric hospitals. The commitment procedures of Correction Law § 402 differ from Mental Hygiene Law § 9.27 in that Correction Law § 402 requires that the prison superintendent must first apply to a court for the appointment of two examining physicians^* to conduct psychiatric examinations of the inmate (see Correction Law § 402[1]), and if they certify that the inmate is mentally ill and in need of psychiatric care and treatment, then the superintendent must petition the court for a commitment order (see Correction Law § 402[3]). Notice of the petition must be served upon the inmate, his or her closest friend or relative and the Mental Hygiene Legal Service (see id.). The inmate is then entitled to request a hearing before a judge before the transfer to a psychiatric hospital is undertaken (see Correction Law § 402[5]). These procedural safeguards may be bypassed if the psychiatric admission sought is on an emergency basis (see Correction Law § 402[9]).

Thus, in this case, the procedure employed pursuant to Mental Hygiene Law § 9.27 did not require that the psychiatric examinations underlying the patient's admission be performed by court-appointed physicians, nor did it provide for pretransfer notice to the inmate and others, nor did it afford an opportunity for a pretransfer hearing.

We agree with Supreme Court's assessment that "the plain truth of the matter is that each of the petitioners were, in fact, imprisoned at the time of their civil commitment" (10 Misc.3d 851, 855, 809 N.Y.S.2d 836 [2005]). Two of the petitioners' applications for commitment were submitted on the date of their release and the remaining 10 petitioners' applications were submitted from one to four days prior to their release. The Appellate Division erroneously stated that "a few hours or days remaining in the sentence of these individuals as of the time of the application did not . . . render them `person[s] undergoing a sentence of imprisonment'" (29 A.D.3d at 226, 812 N.Y.S.2d 496). Because all the preliminary paperwork and examinations were completed during the sentence, the Correction Law should have been followed.

By providing that Correction Law § 402 applies to inmates "undergoing a sentence of imprisonment," the Legislature intended the procedures of Correction Law § 402 to be used to evaluate for commitment all imprisoned persons, regardless of when an inmate is scheduled to be released. Focusing only on whether a person remains imprisoned at the precise moment of commitment, rather than during the precommitment...