New York Criminal Lawyer Blog
A post-conviction hearing was held pursuant to section 208 of the Mental Hygiene Law on defendant’s denial of addiction to a narcotic drug.
On 16 January 1969, defendant was examined by the jail physician. The physician executed a certificate on the regular form provided by the Narcotic Control Commission, which indicated that, pursuant to the order to perform a medical examination to determine addiction, he has personally observed and examined the defendant or the alleged criminal narcotic addict, examined the report of the interviewer, the Petition or the Officer’s report, and/or appended papers, and as a result, found insufficient evidence upon which to certify that the said defendant is a narcotic addict, within the meaning of such term, as defined by 201 of the Mental Hygiene Law. Annexed to the certificate was a form setting forth the following facts: defendant used the drug heroin by vein three times daily for five years; defendant’s last fix of heroin was April 1968; and defendant had pigmented scarred tracks both arms.
At the hearing, the jail physician stated his opinion that defendant was not addicted at the time of his examination as the term addiction is defined in section 201 of the Mental Hygiene Law. Moreover, a record from a certain State Hospital was received in evidence. This record set forth the following pertinent facts: defendant was admitted to the hospital on 8 March 1966; his diagnosis was: Drug Addiction—Heroin; he was arrested four times with three convictions including charges of petty larceny and possession of narcotics; he used heroin since 1957; on 7 June 1966, he was released on convalescent care; his subsequent police record showed a conviction for criminal possession of narcotics on 20 November 1967 based on an arrest on 9 August 1967 and a similar conviction on 27 November 1967 based on an arrest on 23 October 1967. No weapons were found.
Here, it was clear that defendant has been addicted to heroin in the past. The only issue on defendant’s present addiction was raised by the opinion of the jail physician. On inquiry by the court to state his prognosis in simple terms without employing the statutory definition, the jail physician stated that he felt that defendant was more prone to use heroin than one who did not have a past history of such use and that defendant might resort to such use immediately on release from custody, or a week or a month later or even more, or not at all. Robbery was not an issue.
Clearly, the legislature has not delegated to a medical doctor the ultimate determination of addiction. Under the statute, that is a judicial determination. Whether a person with a history of long continued use of heroin is in imminent danger of becoming dependent on heroin seems to be a question whose answer is beyond the competence of medical science alone when the person has been maintained in a controlled environment where the drug is not available. The behaviour of such a person after release in an uncontrolled environment is unpredictable. The jail physician here could make no such prediction, and the physician at the State Hospital also could make no such prediction.
Further, there seemed to have been an understanding on the part of defense counsel that the formal certificate amounted to a finding of non-addiction binding on the court. However, a close reading of the form would show that it is merely a statement of no opinion because of insufficient evidence. The best way to predict the future of the defendant is by examining his past. He has a solid history of long continued use of heroin accompanied by the usual stealing to support his addiction. After therapy at the State Hospital he went right back to the use of heroin. Obviously, it has been demonstrated by a fair preponderance of the credible evidence that defendant is in imminent danger of becoming dependent upon heroin. He is therefore addicted as that term is defined in the statute.
Accordingly, defendant was remanded to the care and custody of the Narcotic Addiction Control Commission.
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