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Respondent has no insight into his various mental illnesses

This is a recommitment proceeding wherein defendant was at the scene of a drug raid for the purposes of purchasing marijuana. He refused the order of a police officer to leave and was arrested for disorderly conduct. As he was being placed under arrest, he pulled out a six-inch hunting knife and attempted to stab the officer. As a result, he was also charged with attempted assault in the first degree and criminal possession of a weapon in the third degree. Following arraignment on these charges, he was released on his own recognizance and then engaged in various criminal acts in New Jersey, which resulted in his arrest and confinement at a Psychiatric Center.

A Suffolk County Criminal attorney said that during his confinement, which lasted from May 1984 until April 1986, defendant reported aural and visual hallucinations, claiming in one instance that he was seeing snakes, bugs and images of Satan and was hearing voices telling him to get a gun and blow his brains out. He also claimed that he communicated with God, worked for God, was God, that he feared that Satan would kill him because he was an archangel, and that he was depressed and wanted to die.

As a result of the observations as well as examinations of respondent, he was diagnosed as a chronic undifferentiated schizophrenic with acute exacerbation. His treating psychiatrist prescribed a high dosage of anti-psychotic medication. The doctors agreed that he presented a danger to himself and others and thus, despite the medication’s beneficial effects, required continued hospitalization on a closed ward until he was stabilized on it.

Thereafter, he escaped from the center using a spoon he had fashioned into a key that could open a security lock. He was quickly apprehended, returned and ultimately stabilized on Prolixin.

In April 1986, he was discharged from the center and extradited to New York to face prosecution on the 1983 attempted assault and weapon charges. The discharge diagnosis reported that he remained a chronic undifferentiated schizophrenic but was in remission because of his hospitalization and treatment, and was no longer hostile or violent. The doctor who discharged him recommended that he received aftercare at a local New York City mental health center upon release from custody.

Upon being returned to New York, he was released on his own recognizance. In February 1987, while drunk and without a driver’s license, S. drove his car into a parked car in Manhattan, causing a multi-vehicle accident. As a result, he was charged with reckless endangerment of property, reckless driving, and DWI, driving while intoxicated. One month later, he was found in possession of three glassine envelopes of heroin and was charged with criminal possession of a controlled substance in the seventh degree, to which he pleaded guilty, and served a short prison sentence.

Respondent pleaded not guilty by reason of mental disease or defect in satisfaction of the 1983 indictment for attempted assault of the police officer and weapon possession, and following a hearing pursuant to CPL 330.20(7), was found to be mentally ill, but not suffering from a dangerous mental disorder, as those terms are defined in CPL 330.20(1)(c) and (d). Accordingly, he was remanded to a non-secure facility for four months under the custody of the New York State Office of Mental Health. In addition, the Justice issued a five-year order of conditions, which required that he comply with the terms of the treatment plan prescribed by the Office of Mental Health.

In August 1992, the Office of Mental Health (OMH) brought a recommitment application pursuant to CPL 330.20(14) based upon its review of S.’s psychiatric records, his arrests in 1991 and 1992, and his persistent non-compliance with the order of conditions. OMH asserted that respondent suffered from a dangerous mental disorder. However, OMH was not able to locate him.

Based on the information available and their observations, the Doctors diagnosed Respondent as suffering from bipolar disorder, manic and recurrent, polysubstance abuse and antisocial personality disorder. They explained that bipolar disorder could be treated with prescribed antipsychotic medication–Prolixin and lithium–but the Doctor added that S. often refused to take it and that his failure to take the prescribed medication would result in his descending into a paranoid psychotic episode.

During one session, respondent told the doctor that he did not need medication, and when the medication was ordered in the form of tablets he pretended to take them by “cheeking” and not swallowing them. When the medication was changed to concentrate form, S. refused to take it. Both doctors agreed that S.’s violent conduct outside of the facility, and his numerous arrests, all indicate his descent into a paranoid psychotic state, characterized by a total loss of control, lack of insight and impairment of judgment.

The doctors agreed that Criminal Respondent’s paranoid symptoms were aggravated by his use of drugs and alcohol, and opined that it was his abuse of those substances, combined with his failure to take his medication and adhere to an out-patient treatment plan, that caused him to act in an aggressive and violent fashion. According to the doctors, Respondent has no insight into his various mental illnesses and needs a longer period of time to be educated about his illness and convinced of the extent of the illness.

Based on the conclusions that Respondent suffered from a dangerous mental disorder, he was transferred to a Psychiatric Center, a secure psychiatric facility. There the board certified psychiatrist, began treating him. Based on his review of his psychiatric records, observations and conversations with him and talks with his mother, he diagnosed him as having a major affective disorder, manic type, and manic bipolar disorder. He added that respondent also suffered from other diagnoses including attention deficit disorder, antisocial personality, alcoholism and drug abuse.

The patient is verbally provocative, even with his fiance. He cannot control himself to refrain from escalating incidents. Such behavior has led to his numerous arrests. He never learns from his past experience. As I indicated, the patient has violated his order of conditions. He has constantly moved from program to program. This is what he has done in the past. He never stays at any one program and complies with it 100 percent, so that progress can be made. He never moves from square one. And if he’s released from the hospital he probably will continue that same behavior. However, the law does not permit me to confine Respondent to a secure hospital, because he is not currently dangerous.

The Criminal Court found no merit to respondent’s argument that since he was originally found to be mentally ill but not suffering from a dangerous mental disorder, following his plea of not responsible by reason of mental disease or defect, he may not be recommitted pursuant to CPL 330.20(14) which requires a finding of dangerous mental disorder by a preponderance of the evidence, but, instead should be treated like a civil committee which requires a finding of dangerousness by clear and convincing evidence.

The central issue on this appeal is whether an acquittee by reason of mental disease or defect, who has repeatedly violated the order of conditions upon which he gained release, and who is still mentally ill and a polysubstance abuser given to acts of violence, may still be found to be not suffering from a dangerous mental disorder because at the time of the hearing on recommitment pursuant to CPL 330.20(14) the acquittee, under the structured environment of a psychiatric hospital, is not presently exhibiting dangerous behavior.

After lengthy hearings, the Supreme Court found that the acquittee, respondent is mentally ill, and suffers from alcoholic dependence and polysubstance abuse; has an antisocial personality disorder; has a narcissistic personality disorder; has an attention deficit hyperactivity disorder; is a master of manipulation; uses the criminal justice system to his benefit; is highly likely to get into trouble again upon release from the hospital because he refuses to take medication or to attend Alcoholics Anonymous meetings; and cannot control himself to refrain from escalating incidents leading to numerous arrests. Nevertheless, the court felt constrained to release him and not to grant the application for recommitment upon the authority of a case because he was not, at the time of the hearing, suffering from a dangerous mental disorder even though the reason for this improved condition was the fact that he had been hospitalized for some six months, and on a regimen of medication and separation from polysubstance abuse. Domestic Violence and also Sex Crimes could occur.

That argument was specifically rejected by the Court of Appeals as a matter of statutory construction and by the Appellate Division, Second Department, under constitutional due process and equal protection standards. In any event, even if the clear and convincing evidence test were deemed applicable to the instant proceeding, we would find that the evidence at the hearing met that more stringent test.

Nor the Criminal Court find merit to his claim that the proceeding to recommit him was untimely. The application for recommitment was originally filed on August 4, 1992, within the five-year period of the order of conditions which commenced August 7, 1987, the date S. pleaded not responsible by reason of mental disease or defect. While these conditions were amended at one point, the amendment was made nunc pro tunc as of August 7, 1987. The application was filed with the court on August 4, 1992, and attempted service at S.’s last known address was made. However, it was later discovered that S. did not receive a copy of the recommitment application, and shortly thereafter a new notice of the recommitment application was sent to S. at his fiancee’s residence in Baldwin, New York, where it was actually received by S.

CPL 330.20(14) provides that “[a]t any time during the period covered by an order of conditions an application may be made by the commissioner or the district attorney to the court that issued such order for a recommitment order when the applicant is of the view that the defendant has a dangerous mental disorder.” The order of conditions did not expire until August 7, 1992, and the present application was filed on August 4, 1992.

Therefore, it was timely. While CPL 330.20(14) requires service of the application for recommitment on the defendant, it does not require that service on the defendant be made simultaneously and within the five-year term of the order of conditions. The failure to serve the recommitment application within the five-year period was not a jurisdictional defect, and the State was properly permitted to hold the statutorily mandated hearing, especially where the recommitment application was made to the court within the period governing the order of conditions.

Finally, Criminal Respondent argues that the affidavit submitted in support of the recommitment application was insufficient and, therefore, the application should be dismissed.

In any event, the alleged insufficiency of the allegations in the affidavit submitted in support of the recommitment application are not jurisdictional defects, but rather would be pertinent only to a motion to dismiss the proceeding or a habeas corpus petition prior to hearings. By analogy, there seems little point in concentrating our attention upon the technical sufficiency of the affidavit, upon which the recommitment proceeding was commenced, after extensive hearings generating over 1,500 pages of mostly psychiatric testimony, in the course of which 1,800 pages of S.’s psychiatric records were admitted into evidence, explored and tested. The question before us is whether or not the evidence at the hearing established that Respondent had a dangerous mental disorder. We have concluded that the evidence at the hearing established that Respondent did suffer from a dangerous mental disorder.

For your criminal law concerns, please contact our Suffolk County Criminal attorneys here in Stephen Bilkis and Associates. We are always available to help and serve you. We will ensure that your rights are protected. In case of illegal arrest during entrapment operation, we also have Suffolk County Drug Crime lawyers, who shall defend you from abuses from police operatives.

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