Ughetto v. Acrish

Decision Date13 September 1985
Citation130 Misc.2d 74,494 N.Y.S.2d 943
PartiesThomas UGHETTO, Melody Norris, Stephen Perito and David Mellow, patients confined involuntarily at Harlem Valley Psychiatric Center, Plaintiffs, v. Wendy ACRISH, in her official capacity of Executive Director of Harlem Valley Psychiatric Center, and Dr. Girish Shah, in his official capacity of Clinical Director of Harlem Valley Psychiatric Center, Defendants.
CourtNew York Supreme Court

Mental Health Information Service, Second Judicial Dept., William M. Brooks, of counsel), Wingdale, for plaintiffs-movants.

Robert Abrams, Atty. Gen., New York City, for defendants-movees.

KENNETH H. LANGE, Acting Justice.

This is an action for declaratory and injunctive relief by several persons who are confined involuntarily at the Harlem Valley Psychiatric Center (hereinafter, "the hospital") in Wingdale, New York. The plaintiffs seek (1) a declaration that they have the right to have their attorney present whenever they are examined by a psychiatrist whom the hospital intends to have testify with respect to their involuntary commitment; (2) a declaration that the privilege against self-incrimination applies at such examinations and that the patient may refuse to submit to such examination; and (3) a permanent injunction requiring the hospital to notify the patient's attorney whenever such an examination is to take place and to permit the patient's attorney to attend and observe the examination. Presently before the Court are a motion by the plaintiffs and a cross-motion by the defendants for summary judgment.

The plaintiffs' application is based upon their contention that the prehearing psychiatric interview is a critical stage of the proceedings for involuntary commitment, and that requiring them to submit to this examination without benefit of the privilege against self-incrimination and outside the presence of counsel violates their right to due process of law. The hospital argues that the right to due process does not extend so far, and that to permit the patient to have his attorney present and refuse to answer would frustrate the hospital's legitimate efforts at treatment. The facts of the matter are not substantially in dispute.

Under Article 9 of the Mental Hygiene Law, a person can be confined against his will to an in-patient mental health institution either on an emergency basis for up to 72 hours (Sections 9.37-9.45); or on the basis of certificat by two physicians for up to 60 days (Sections 9.27-9.31); or pursuant to court order for up to six months (Section 9.33). Regardless of the manner of the commitment, a hearing is available to the patient either on his application or upon his request when the hospital applies for a court order. The burden of proof at such a hearing is upon the hospital to establish by clear and convincing evidence that the patient poses a substantial threat to himself or others and that involuntary commitment is the least restrictive means available for treatment (see Matter of Harry M., 96 A.D.2d 201, 468 N.Y.S.2d 359).

The primary evidence in virtually every one of these hearings is the testimony of a psychiatrist, employed by the hospital, who has not treated the patient. The testimony is based on the hospital record and a brief interview with the patient conducted shortly before the hearing. Although the hospital record is available to the patient's attorney, no record is made of the interview. Because the patient is generally unable to reconstruct the interview for his attorney, the psychiatrist is the only source of testimony concerning it. The hospital has refused a formal request to allow the presence of counsel at the hearing.

Since the material facts are undisputed, the only question is one of law, and summary judgment is appropriate.


The fact that all of the plaintiffs have been retained pursuant to new court orders since this action was commenced does not render this action moot. By statute, the term of an involuntary commitment by court order cannot exceed six months (Mental Hygiene Law Section 9.33 subd [b] ). At the end of that period, the hospital must apply for a new court order if it wishes to retain the patient. Furthermore, the patient can, on his own application, obtain a hearing at any time, either under the terms of the statute (Mental Hygiene Law Section 9.35) or by petition for a writ of habeas corpus. In addition, there are numerous other patients, at the hospital and other state mental health facilities, who will shortly be the subject of retention hearings.

The "massive curtailment of liberty" which results from an involuntary commitment (Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394) mandates that any constitutional questions raised concerning commitment procedures be heard and determined. Both sides have briefed this case fully and now seek a declaration. The Court is satisfied that the issues raised in this action bear a likelihood of repetition, typically will evade review, and present significant questions not previously passed upon. The action is therefore not moot (see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714-715, 431 N.Y.S.2d 400, 409 N.E.2d 876, see also Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248; Matter of Amato v. Ward, 41 N.Y.2d 469, 393 N.Y.S.2d 934, 362 N.E.2d 566).


Issues similar to those at bar were raised before the Court of Appeals in 1969 in People v. Fuller, 24 N.Y.2d 292, 300 N.Y.S.2d 102, 248 N.E.2d 17. In Fuller, the Court considered the constitutionality of certain provisions of the Narcotic Control Act of 1966, which permitted a defendant charged with certain offenses to seek civil commitment as a narcotic addict in satisfaction of the criminal charges against him. If after a hearing the defendant was found to be an addict, he could be committed for up to five years. The defendant in Fuller challenged his adjudication, in part on the grounds that statements he made in the course of a prehearing medical examination which were introduced against him at the hearing were taken in the absence of counsel and without benefit of the privilege against self-incrimination.

The Court of Appeals rejected the defendant's challenge. Reasoning that the program was intended solely to benefit the defendant, the Court held that "[i]t is the non-incriminating purpose of the examination that makes the privilege against self incrimination and the right to counsel inoperative at the physical examination" (24 N.Y.2d at 302, 300 N.Y.S.2d 102, 248 N.E.2d 17). The Court found that since the program was curative, and not punitive, the constitutional guarantees applicable in the ordinary criminal proceeding did not necessarily apply.

"[I]t is not every deprivation of liberty that will bring into play all the constitutional provisions applicable to criminal trials. It is only those curtailments of liberty which serve the traditional purposes of the criminal law which require the full protections of a criminal trial."

(24 N.Y.2d at 303, 300 N.Y.S.2d 102, 248 N.E.2d 17).

Despite its seeming similarity to the case at bar, the holding in People v. Fuller, is not controlling. In the first place, the commitment in Fuller was an alternative to incarceration for a defendant who either stood accused of committing a crime or had already been tried and found guilty. Here, the patient is before the court solely as a result of his status as a mentally ill person, and there is no benefit to him from the adjudication in the same sense as there was in Fuller. In this situation the "conviction" and the treatment are one and the same. Second, and more important, subsequent to the decision in Fuller, the Supreme Court made it clear that the applicability of due process requirements to civil proceedings depends not on their quasi-criminal nature, but on the deprivation of liberty that may result (see Lassiter v. Dept. of Social Services, 452 U.S. 18, 25, 101 S.Ct. 2153, 2158, 68 L.Ed.2d 640; see also, Heryford v. Parker, 396 F.2d 393 (10th Cir.) ). Since the deprivation of liberty inherent in a civil commitment is obvious, the patient is entitled to due process of law (Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323). The question is whether in light of "any relevant precedents" and after "assessing the several interests that are at stake" (Lassiter, 452 U.S. at 25, 101 S.Ct. at 2158), due process requires the protections the plaintiffs claim.


The historical privilege against self-incrimination is enshrined in both the Fifth Amendment to the United States Constitution and Article I, Section 6 of the New York State Constitution. It is well established that the federal constitutional privilege against self-incrimination applies to the states (see Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653). In the absence of some contrary indication from the Court of Appeals, the identical language of the federal and state privilege requires that they be construed identically.

By their terms, the constitutional privileges against self-incrimination apply only to criminal proceedings. The Supreme Court held long ago, however, that despite this limitation the privilege is "as broad as the mischief against which it seeks to guard" (Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110). The privilege therefore extends to any situation in which "the government seeks testimony that will subject its giver to criminal liability" (Garner v. United States, 424 U.S. 648, 655, 96 S.Ct. 1178, 1182, 47 L.Ed.2d 370; Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574; NLRB v. Trans Ocean Export Packing Inc., 473 F.2d 612 (9th Cir.) ). Any testimony obtained in violation of the privilege is inadmissible in any future criminal prosecution (Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274).

Unquestionably, the privilege against self-incrimination insulates a patient...

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