State ex rel. Henry L. v. Hawes

• Decision Date: 10 November 1997
• Citation: 174 Misc.2d 929,667 N.Y.S.2d 212
• Parties: , 1997 N.Y. Slip Op. 97,665 STATE of New York ex rel. HENRY L., Relator, v. Barbara A. HAWES, as Director of Sunmount Developmental Disabilities Services Office, et al., Respondents.
• Court: New York County Court

Page 212

667 N.Y.S.2d 212

174 Misc.2d 929, 1997 N.Y. Slip Op. 97,665

STATE of New York ex rel. HENRY L., Relator, v. Barbara A. HAWES, as Director of Sunmount Developmental Disabilities Services Office, et al., Respondents.

Franklin County Court.

Nov. 10, 1997.

Mental Hygiene Legal Services, Ogdensburg (Peter R. Terriah, of counsel), for Henry L., relator.

Dennis C. Vacco, Attorney General (D. Travis Tucker, of counsel), Plattsburgh, for Thomas Maul, as Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities, respondent.

Sol Greenberg, District Attorney of Albany County (Paul DerOhannesian, II, of counsel), for People of State of New York.

ROBERT G. MAIN, JR., Judge.

Relator, an insanity acquittee, proceeding by writ of habeas corpus, seeks an order directing respondent Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities (hereinafter, "Commissioner") to remove him from his confinement at Sunmount Developmental Disabilities Services Office (hereinafter, "Sunmount"), a secure facility, and to return him to Wassaic Developmental Center (hereinafter, "Wassaic"), a non-secure facility. In substance, relator contends that his current confinement in a secure facility is illegal and in violation of due process and of the statutory safeguards set forth in Criminal Procedure Law § 330.20.

Respondents oppose the relief requested on three grounds. First, respondents contend that habeas corpus relief should not be granted because an appeal is pending in which the issues raised in this proceeding could be raised. Second, respondents allege that relator's confinement at Sunmount is legal. Finally, respondents claim that habeas corpus relief should be denied based upon the doctrines of res judicata, collateral estoppel, and/or stare decisis, since relator has had a full and fair opportunity on two distinct prior occasions to litigate the issue of his placement by the Office of Mental Retardation and Developmental Disabilities (hereinafter "OMRDD").

The procedural history of this matter is set forth in more detail in this court's Decision and Order in a prior related proceeding (see, Matter of Henry L., 172 Misc.2d 981, 661 N.Y.S.2d 764). Insofar as is relevant to this proceeding, relator, after being committed to a secure facility pursuant to Criminal Procedure Law § 330.20(6), was transferred to a non-secure facility pursuant to Criminal Procedure Law § 330.20(8), (11). The order of conditions (see, Criminal Procedure Law § 330.20[1][o] ) issued at the time of the transfer order expired in 1989 and was never extended, although authority existed for an unlimited number of five-year extensions if the conditions so warranted (see, Matter of Oswald N., 87 N.Y.2d 98, 637 N.Y.S.2d 949, 661 N.E.2d 679).

Relator is currently confined in Sunmount, a secure facility in Franklin County. However, no recommitment order has ever been issued by a court of this state (see, Criminal Procedure Law § 330.20[14] ). Notably, the Commissioner did, on August 21, 1996, first file in Dutchess County, and then subsequently withdraw, a recommitment application under Criminal Procedure Law § 330.20(14). The recommitment application apparently was withdrawn as a result of relator's motion to dismiss the application based upon the ground that there was no order of conditions in effect at the time of the application.

After withdrawal of the recommitment application, the Commissioner administratively transferred relator from Wassaic, a non-secure facility in Dutchess County, to Sunmount. Following vacatur of that order, the Commissioner applied in this court for a subsequent retention order pursuant to Criminal Procedure Law § 330.20(9). By Decision and Order dated March 3, 1997, this court, upon motion of relator, transferred venue to Dutchess County, finding that Franklin County was not a proper venue for the application (see, Matter of Henry L., supra).

As appears from a review of the papers submitted in this matter, the retention application--in which the Commissioner sought a finding that relator is suffering from a dangerous mental disorder and continued retention for an additional period not to exceed two years--was pending in Dutchess County before Justice Jiudice. The matter has since been decided in the Commissioner's favor.

There is no doubt that habeas corpus relief is generally available to test the legality of a person's confinement in a secure facility following acquittal pursuant to Criminal Procedure Law § 330.20 (see, McGraw v. Wack, 220 A.D.2d 291, 632 N.Y.S.2d 135; see also, Criminal Procedure Law § 330.20[17]; Mental Hygiene Law § 33.15; Matter of Mental Hygiene Legal Services v. Wack, 75 N.Y.2d 751, 551 N.Y.S.2d 894, 551 N.E.2d 95). Respondents contend that habeas corpus relief is inappropriate because of a pending appeal where the issue of the legality of relator's confinement could be considered.

In November 1996, Supreme Court, Dutchess County (Bernhard, Justice), denied relator's CPLR article 78 petition which sought to enjoin the Commissioner from transferring relator from Wassaic to Sunmount. In denying the application, the court noted that it had no authority to review Justice Beisner's decision finding that relator suffered from a dangerous mental disorder and which laid "a clear foundation for his transfer." On December 19, 1997, Justice Beisner vacated his Subsequent Retention Order dated August 20, 1996, thus eliminating the "clear foundation" for relator's transfer. While it is possible that the Appellate Division, Second Department, may consider the issues raised here, relator's motion for a preference was opposed by respondents and denied on September 15, 1997, thus eliminating the potential for prompt appellate review.

Relator has now been confined at Sunmount since October 7, 1996, although no court order has either directed or authorized such confinement. While respondents are correct that habeas corpus relief is generally unavailable where the allegations in the petition were, or could have been, raised on direct appeal, there may be times when allegations raised in a habeas corpus petition necessarily compel a departure from traditional protection of due process; "to deny [relator] access to habeas corpus relief denies him protection of his liberty" (People ex rel. Schreiner v. Tekben, 160 Misc.2d 34, 38, 607 N.Y.S.2d 850, habeas corpus denied, 160 Misc.2d 724, 611 N.Y.S.2d 734, affd. People ex rel. Richard S. v. Tekben, 219 A.D.2d 609, 631 N.Y.S.2d 524; see also, Matter of Kesselbrenner v. Anonymous, 33 N.Y.2d 161, 350 N.Y.S.2d 889, 305 N.E.2d 903).

As the Court of Appeals has said, habeas corpus "must take precedence over considerations of procedural orderliness and conformity" and is available to review the violation of fundamental constitutional or statutory rights (People v. Schildhaus, 8 N.Y.2d 33, 36, 201 N.Y.S.2d 97, 167 N.E.2d 640; compare, People ex rel. Clayborne v. Le Fevre, 90 A.D.2d 923, 458 N.Y.S.2d 256, appeal denied, 58 N.Y.2d 610, 462 N.Y.S.2d 1027, 449 N.E.2d 427). Here, the traditional means for a challenge of this sort is not a sufficient remedy (see, People ex rel. Best v. Senkowski, 200 A.D.2d 808, 606 N.Y.S.2d 427, appeal dismissed, 83 N.Y.2d 951, 615 N.Y.S.2d 873, 639 N.E.2d 413).

Furthermore, in their appellate brief, respondents seek dismissal of relator's appeal upon the grounds that the issues raised are either moot or not yet ripe for review. In substance, respondents argue to the Appellate Division that the appeal should be dismissed on procedural grounds and, at the same time, argue to this court that habeas corpus relief should be denied because there is a pending appeal. This court cannot countenance such a disingenuous argument, especially where, as here, respondent has "admitted" that a court reconsidering relator's article 78 petition in light of the vacating of the subsequent retention order of August 20, 1996, would be compelled to transfer relator to a non-secure facility pending a final decision on the application for a subsequent retention order.

Respondents further contend that a court of coordinate jurisdiction has already ruled that relator's detention at Sunmount is valid. As such, they assert that this court has no authority to supersede the ruling of that court.

By order of the Supreme Court, Dutchess County (Jiudice, J.), dated April 28, 1997, the following was directed:

ORDERED that OMRDD maintain custody of HENRY [L.] at the Intensive Treatment Center of Sunmount DDSO ("Sunmount"), located in Tupper Lake, New York, until such time as a determination is rendered by this Court with respect to the application made by OMRDD pursuant to CPL § 330.20(9) for a Subsequent Order of Retention authorizing OMRDD to continue HENRY [L.'s] retention for an additional period not to exceed two years.

This order was entered after a conference in Justice Jiudice's chambers held on April 8, 1997, at which time Assistant Attorney General Steven Pagones represented to that court that relator was too dangerous to be housed at Wassaic for a two-week period during the pendency of the retention proceeding. No evidence is before this court that Justice Jiudice was briefed regarding the issue of the legality of relator's confinement at Sunmount or that he considered this issue prior to issuing the April 28, 1997, order. Based upon a review of the papers submitted in this...