Mrs. D. testified that she and the defendant share a great marriage

This is a proceeding wherein the defendant, D.S.D. entered a plea of not responsible by reason of mental disease or defect pursuant to CPL 220.15 to the crime of Criminal Possession of a Weapon in the Second Degree, and to other related offenses.

It was alleged that on 23 January 2004, the criminal defendant displayed a firearm while threatening to use it against the complainant, the defendant’s sister-in-law, and that said actions caused her fear of physical injury.

A commitment order, pursuant to CPL 330.20[6], was issued and the defendant was remanded to the care and custody of the State Commissioner of Mental Health. The defendant was confined in a secure facility pursuant to CPL 330.20.

After stipulation by the parties, the defendant was found, although mentally ill, to no longer have a dangerous mental disorder. The defendant was subsequently transferred to Creedmoor Psychiatric Center, a non-secure facility. Since the defendant has been in the custody of the Commissioner, several orders of retention pursuant to CPL 330.20[8] and [9] have issued. The defendant is currently still a patient, and resident, of Creedmoor.

The Commissioner has filed an application, dated 20 May 2010, for a subsequent two- year retention order. The defendant is opposed to retention and is seeking his conditional release.

Since the parties involved in this case were unable to work out a settlement as to this issue, the matter was adjourned for the Court to conduct the instant retention hearing.

At the hearing, the State called Dr. E and the defense called Dr. R. The Court found both of these witnesses to be credible.

Dr. E testified that she supervises the doctor who treats the defendant. She testified that she has known the defendant for a little less than a year. It is her opinion, with a reasonable degree of clinical certainty that the defendant is suffering from mental illness. The doctor stated that the defendant suffers from a “major depressive disorder with psychotic features currently in remission” a “substance use disorder”, “a personality disorder not otherwise specified with some significant sociopathic traits”, and regarding his physical condition, the defendant has a “history of colon cancer, status post resection of a portion of the colon. He had history of head trauma. He has arthritis of the cervical spine. He has minor herniated discs on the cervical spine. He recently was found to have polyps of the colon. And he also has some type of seizure disorder which I believe is complex partial seizures”.

Further, Dr. E indicated that some of the defendant’s mental health symptoms are in remission. The doctor continued that remission means that the symptoms have been controlled with the current treatment that the defendant is receiving. The symptoms in remission are not manifested to a degree that causes impairment in function. Dr. E also has concerns about substance abuse issues. She testified that the use of substances can adversely affect the defendant’s depression and psychotic features.

The Court then asked the doctor how the defendant’s seizure condition fits into his mental or physical profile, and Dr. E explained that “after seizure activity can manifest as psychosis such as a hallucinations, delusions, paranoia.”

Furthermore, she stated that seizures can be affected by the use of substances, in that alcohol, cocaine, and marijuana can lower the seizure threshold, so that even on medication, an individual may have a relapse of seizures. Dr. E elaborated that seizure medication may interact with psychiatric medications, so that medications for seizures and psychiatric symptoms must be balanced.

Dr. E opines that the care and treatment in a hospital is presently essential to the defendant’s welfare. She explained that the defendant needs to work harder on his substance abuse issues and needs to develop a deeper understanding of the interaction between illicit substances and his depression with psychotic features, and his complex partial seizures.

When asked how the defendant is being prepared for transition to the community, the doctor explained that the defendant is being closely monitored regarding his belongings and urines, is encouraged to participate in group therapy, and has been advised to accept the fact that substances are a part of his life and are dangerous, even if only used once or twice a month.

Dr. E testified, regarding the defendant’s privileges at the hospital, that the defendant now has level 2A privileges, which means he can leave his unit unescorted, but his freedom is limited to within his building, and he can attend any program within his building unescorted.

Dr. E testified that it would be at least a year before the hospital would consider the defendant for discharge to the community. Upon cross-examination, Dr. Escovar testified that it is the hospital’s policy that the defendant must progress through each of the levels before he is ready for discharge, and that all the patients must go through this process. The doctor testified that treatments are individualized for each patient, and possession of some contraband may cause a loss of privileges and possession of other contraband, or other infractions, may not cause a loss.

The defense called Dr. R and testified that the defendant denied ever having psychotic symptoms. The defendant’s records reflect that his diagnosis is major depressive disorder with psychotic features. Dr. R testified that the psychotic features that are sometimes seen with this condition include delusions, hallucinations, and thought disorder. He testified that the defendant indicated to him that he had never suffered from delusions or hallucinations.

Further, he testified that the defendant appeared to be emotionally stable and did not have any outward signs of mental illness. He stated that his concern with regard to substance abuse is that the defendant is a man on medications. The defendant did indicate to him that he intends to continue his medications as long as it is considered necessary. He testified that he is comfortable recommending the defendant’s discharge, because at the time he examined him, the defendant denied any history of sex crimes or substance abuse, and in the records there was an indication that the defendant had denied it.

The court and defense counsel indicates that prior to the offense that brings the defendant before the court he had been arrested in the distant past, the last conviction being in 1989. Furthermore, it was stated that the only crime constituting a threat of violence in the defendant’s history was a robbery conviction from 44 years ago.

The next witness called on behalf of the defense was Mrs. D., the defendant’s wife of nine years. Mrs. D. testified that she and the criminal defendant share a great marriage. The defendant was admitted to Creedmoor in May of 2007, and before that he was in Kirby. Mrs. D. testified that the defendant was hospitalized due to an incident that occurred in 2004 wherein the defendant was upset, and pulled a gun on her father, cause Mrs. D. was beaten by her father. When the Court inquired as to how this became a psychiatric matter, the witness indicated that there was more to the story, but that she did not want to address it.

Mrs. D. testified that she sees the defendant two to three times a week, that she works full time, that she wants the defendant to come home, and that she has never felt threatened by the defendant. Mrs. D. continued that if the defendant came home, she would like him to continue in outpatient treatment, and that if she ever felt threatened, she would take steps to protect herself.

Upon cross-examination by the Assistant Attorney General, Mrs. D. testified that when the defendant pulled the gun on her father, she took the gun away from him. Mrs. D. testified that the defendant got upset and pulled the gun on her father because the defendant saw bruises on her, and she had told the defendant that her father had beaten her. The defendant pulled the gun and made Mrs. D.’s father apologize. The defendant also accused Mrs. D.’s father of sexually touching her. Mrs. D. indicated that her father did molest her, that she had told this to the defendant, and that it was not a delusion on the part of the defendant that this had happened. Her father’s sex crimes misbehavior is what Mrs. D. did not want to discuss earlier in her testimony.

Mrs. D. testified that she had discussed with members of the defendant’s treatment team at Creedmoor the reasons that the defendant pulled the gun on Mrs. D.’s father, the issue of inappropriate sexual conduct.

Upon cross-examination by the Assistant District Attorney, Mrs. D. testified that her father, who is now 86 years old, lives with her. She stated that she is now 47 years old and that she was an adult when the incidents with her father occurred. Mrs. D. continued that when the defendant pulled a gun on her father, she was living with the defendant, her father, and her sister. The witness stated that the defendant was informed by her sister, who is now 62 years old, that her father was committing the same acts that he was committing against her, against her sister. Mrs. D. indicated that the defendant saw some conduct on the part of the witness’ father that he did not like. Mrs. D. stated that her mother has been deceased for many years. She continued that her sister was forced to have sex with her father, and that was conveyed to the defendant.

The next witness called by the defense was the defendant himself. The defendant testified that he was in court so it could be determined if he should get an order of retention or hopefully be discharged. The defendant testified that should he be released, he would continue to take his medications. He testified that he has no desire to hurt himself or anybody else.

After an incident of violent confrontation with his father in law, the defendant’s wife came to the precinct and the police asked her about her father. She denied everything. The defendant testified that he knows why she did this, that she was frightened, embarrassed, and ashamed. The defendant continued that he was sent to Rikers Island, to a mental health unit. The defendant testified that the reason he was “taking mental health drugs” was because at the same time his neck was broken, he found out that he had colon cancer and diabetes. The defendant stated that he became depressed, was referred by his medical doctor to a psychiatrist, and he was put on Effexor and Risperidone and that these are the same medications he was taking before he was hospitalized, and that he is still taking them today. The defendant testified that when he was at Rikers Island, personnel there took him off the medications, but when he got to Kirby, they put him back on the medications.

When asked how his case went from a criminal case to a psychiatric case, the defendant explained that he told his wife that he was going to trial, because the People offered him a plea of five years incarceration, and he felt that he did not deserve that sentence. All he did was stick up for his wife, and that any man would do the same under these circumstances. The defendant testified that his wife asked him not to go to trial, as she did not want her father to get locked up and the neighbors to find out. The defendant stated that then he was sent to the psychiatrists, that he thought about it, and decided to accept the five years. By then the doctors’ reports were in, the defendant stated that he was not permitted to go to trial, and he was given the insanity plea. The defendant testified that he agreed to pursue the insanity plea reluctantly in order to save his wife from everything that she was afraid would happen.

With regard to the defendant’s involvement with a bank robbery, the defendant testified that his nephew robbed a bank, and that the defendant put him on a train so he could run away. The defendant stated that he was arrested eight months later, and was charged with obstruction of justice. The authorities told him they would have found his nephew sooner had he not intervened. The defendant testified that he was sentenced to 18 months in federal prison, served ten months, and then served the other eight months in a halfway house. The defendant stated that he did not rob a bank, that his nephew did. The defendant said that he was an accessory after the fact of a bank robbery. The defendant continued that he was required to pay $25,480 in restitution as part of his plea, and that he is still paying that now. The defendant elaborated that his nephew got killed, but that he is still forced to pay the money every month.

The defendant testified that he did not tell Dr. L that he made up a substance abuse problem so that he could get into a mentally ill chemical dependent program so that he could get out of Rikers Island.

The defendant indicated that he will comply with any order to continue taking the medications if he is released. The defendant acknowledged that the medications do help him with his feelings of depression, and he continued by stating that when he gets out, he will stay on the medications, and will follow the instructions of the therapist he will be seeing, as to what he should do. The defendant stated that he will continue to take any medications until his therapist or psychiatrist feels that he does not have to take them anymore. The defense then rested its case.

The State re- called Dr. E as a rebuttal witness. She testified that she was present during the entire testimony of the defendant, and his wife. The doctor testified that after hearing the defendant’s testimony, and after hearing the testimony of his wife, and after being present during the entire court hearing, she continues to maintain, based on the evidence in the chart, that the defendant does have a mental illness. Furthermore, the doctor indicated that she would question whether someone who absolutely feels that he has no mental illness and, no symptoms, would ever take medication because a physician says so. When the Court commented to the doctor that perhaps an individual would do so to gain his release, the doctor stated that the defendant’s symptoms pre-date the instant offense.

Dr. E opines that the rape issue was a delusion mentioned by others. She testified that mental illness sometimes has a cyclical quality, so that there are cycles in which an individual may appear to be fine, but there is a very good possibility of a recurrence of symptoms if the person is not maintained on medications throughout the natural course of the illness. The doctor stated that the defendant appears to be fine, but the defendant is on medications. The doctor stated that the defendant’s present diagnosis is major depression with psychotic features in remission. Dr. E explained that remission means it is fine now, it is treated, so there are no significant active symptoms that impair his functioning at the present time, however, it could come back.

She testified that with maintenance medications, the defendant can lead a very productive life out of the hospital. When the Court noted that the defendant stated that he would take his medications, Dr. E commented “for a condition that he doesn’t believe he has”.

The court is now faced with the issue of whether the application of the Commissioner of Mental Health seeking a subsequent two- year retention order of the defendant pursuant to CPL 330.20 should be granted. The defendant is opposed to that application and is seeking his conditional release for sex crimes.

CPL 330.20[9] states that “the commissioner must establish to the satisfaction of the court that the criminal defendant has a dangerous mental disorder or is mentally ill”. Furthermore, the statute states that “if the court finds that the defendant does not have a dangerous mental disorder and is not mentally ill, it must issue a release order and an order of conditions pursuant to subdivision 12 of this section”. CPL 330.20[12], entitled “Release order and order of conditions”, delineates the course of action that must be taken before, and during, a defendant’s release, and the responsibilities of the parties involved. It must be noted, that should a defendant be released, the Commissioner’s responsibility for, and his supervision over, the defendant would not be terminated.

It was held in People v Mooney that the order only ends the defendant’s in-patient status. The defendant would be subject to an order of conditions which must issue and which will guarantee that the defendant will be supervised for years to come, unless the time comes, if ever, when the defendant earns the right to absolute discharge.

Furthermore, a violation of the order of conditions will subject the defendant to recommitment to the hospital and to the custody of the Commissioner. The burden of proof for the application for retention is on the State, and it must establish that the defendant has a dangerous mental disorder or is mentally ill, by a preponderance of the evidence as in Matter of David B., Leon R. V. Palmer, and In re Jerriell O.

Statutorily, the terms “dangerous mental disorder” and “mentally ill” have their own meanings in relation to CPL 330.20. A dangerous mental disorder, defined in CPL 330.20[1][c], “means (i)that a defendant currently suffers from a “mental illness” as that term is defined in subdivision twenty of section 1.03 of the mental hygiene law, and (ii) that because of such condition he currently constitutes a physical danger to himself or others”. Mentally ill, defined in CPL 330.20[1][d], “means that a defendant currently suffers from a mental illness for which care and treatment as a patient, in the in-patient services of a psychiatric center under the jurisdiction of the state office of mental health, is essential to such defendant’s welfare and that his judgement is so impaired that he is unable to understand the need for such care and treatment”.

The court finds that the relevant statute in this case is CPL 330.20[1][d] since the defendant was previously adjudicated non-dangerous. The Court must determine if the defendant is mentally ill. The New York State Court of Appeals has held that the term “mentally ill” has three distinguishing characteristics: “(1) illness is of a kind that requires inpatient care and treatment, (2) care and treatment of the illness are essential to the defendant’s welfare, and (3) because of impaired judgment the defendant does not understand the need for such care and treatment.”

In the case at bar, the court concludes that the People have demonstrated “by a preponderance of the evidence that continued care and treatment are essential to the physical or psychological welfare of the defendant and that the defendant is unable to understand the need for such care and treatment. Therefore, the Court finds that the People have met their burden of proving that the defendant is mentally ill as that term is defined statutorily in CPL 330.20.

The court is persuaded by Dr. E’s conclusion that the defendant should not be released at this time. Despite the testimony that the defendant has indeed been taking his medications consistently, there is a real threat to their continued success and that threat is the defendant’s apparent drug use. The court finds upon review of the evidence in this case, that the defendant is indeed using illicit substances. The court finds little assurance that the defendant will follow any rules upon release that will help to maintain his remission.

The final factor in determining if retention in this case is warranted is whether, because of impaired judgment, the defendant does not understand the need for care and treatment. The court finds that to be the case, based on the totality of the circumstances. The defendant’s behavior as an in-patient resident of Creedmore demonstrates a lack of insight into his mental illness. By denying that he even has a mental illness, which again, the defendant suffered from prior to the instant offense, and denying that he has substance abuse issues, the defendant has shown the Court that he does not know or understand that he needs treatment. Furthermore, by using illegal drugs and alcohol, it is clear that the defendant does not understand the interaction these substances have with his medications and how they can reduce their effectiveness.

As to Mrs. D’s testimony, the court finds that she and her sister were in fact sexually and physically abused by their father, and when the defendant, her husband, was arrested, out of fear for her father, she lied to the police and the doctors, and insisted that the sex crimes abuse had not taken place. Thus, the doctors, as well as others in the criminal justice system, concluded that the defendant was delusional. Mrs. D. now asks the Court to believe that that is not true, that her husband is not, and was not, delusional.

Mrs. D.’s testimony has created a unique aspect to this hearing. Essentially, Mrs. D.’s testimony raises questions as to the initial validity of the defendant’s “not responsible” plea and to the doctors’ claims that the defendant’s beliefs, regarding his wife and sister-in-law having sex with their father, are delusions. The Court finds that in analyzing this situation, it must not lose focus on the true issue at hand, namely, is the defendant presently mentally ill and in need of retention?

Initially, the Court finds that none of the parties, including the defendant himself, are requesting that the Court vacate the defendant’s not responsible plea. They are prepared to stand by that plea. Based upon those representations, as well as upon the presumption of regularity, the Court is not prepared, sua sponte, to vacate the defendant’s plea. The Court does not find, at this point in time, enough solid evidence to find that the defendant committed a fraud upon the court when he entered his plea. The court finds that the issue of Mrs. D.’s testimony, regarding whether or not she and her sister were in fact physically and sexually abused by their father, is not relevant at this time to the central issue at hand, namely, whether the defendant is presently mentally ill and in need of retention. The Court must answer this question in the affirmative.

The court finds that the defendant is not yet ready for conditional release.

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