People v D.I.I.

[*1] People v D.I.I. 2009 NY Slip Op 50833(U) [23 Misc 3d 1118(A)] Decided on April 29, 2009 Supreme Court, Queens County Erlbaum, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 29, 2009
Supreme Court, Queens County

The People of the State of New York

against

D.I.I., Defendant.



1346/1990



The defendant was represented by Mental Hygiene Legal Services, by Lawrence Newman, Esq. The People were represented by Assistant District Attorney Michael Kavanagh of the Queens County District Attorney's Office. The State was represented by Edward J. Curtis, Jr. of the New York State Attorney General's Office.

William M. Erlbaum, J.

On February 25, 1990, the defendant, D.I.I., beat his mother to death. After being indicted for two counts of Murder in the Second Degree, on February 5, 1991 the defendant entered a plea of not responsible by reason of mental disease or defect (see, CPL 220.15). The defendant was remanded to the custody of the State Commissioner of Mental Health, and in February of 1991, he was admitted to Mid-Hudson Forensic Psychiatric Center pursuant to CPL 330.20. A commitment order, pursuant to CPL 330.20[6], was issued on May 20, 1991. The defendant remained at Mid-Hudson until he was transferred to Creedmoor Psychiatric Center in July of 1992. Since the defendant has been in the custody of the Commissioner, several orders of retention (see, CPL 330.20[8] and [9]) have issued [FN1]. The defendant is currently still a patient, and resident, of Creedmoor.

The Commissioner filed an application, dated September 25, [*2]2006 for a subsequent retention order.[FN2] The defendant was opposed to retention, was seeking his conditional release [FN3], and this case was adjourned many, many times while the parties involved [FN4] attempted to work out a settlement as to this issue.[FN5] However, the parties were unable to reach a compromise. [*3]Therefore, the Court conducted the instant retention hearing (see, CPL 330.20[9]). The hearing was conducted over several dates, September 3, 2008, September 10, 2008, December 12, 2008, January 12, 2009, February 6, 2009, and March 2, 2009. The defendant's entire medical record, as well as many reports written on his behalf, were deemed admitted into evidence for each side to use in questioning the witnesses and in making argument to the Court. The parties agreed to retain their own copies of any such evidence, and produce it for the Court upon request. However, many of the reports discussed throughout this hearing are contained in the court file.

At the hearing, the State called Dr. Angela Hegarty, and the defense called Drs. Janos Marton, Lawrence Siegel, and Allen Reichman. The Court found all of the witnesses to be credible.

The Court will now summarize the relevant testimony elicited at the hearing.

The first witness to testify for the State was Dr. Angela Hegarty, director of forensic psychiatry at Creedmoor Psychiatric Center. Dr. Hegarty testified on direct examination that she is familiar with the defendant's clinical record [FN6] from Creedmoor Psychiatric Center, and that she is in fact familiar with the defendant himself.

Dr. Hegarty testified regarding how the defendant came to be in the custody of the Commissioner of Mental Health. She explained that in March of 1990, the defendant was arrested in relation to the murder of his mother which had occurred a couple of weeks earlier in the family home. She continued that the defendant had gotten into a car accident in Rockland County, seemed to be disturbed, and was sent to a psychiatric hospital. While hospitalized, he made an admission pertaining to his mother's death. He was subsequently arrested, sent to King's County Hospital, and in 1992 was found, after a plea, to be not responsible by reason of mental disease or defect, for his mother's death. The defendant was sent for treatment to Mid Hudson Psychiatric Center for about eighteen months. While at Mid Hudson, the defendant was medicated and improved very quickly, and within a relatively short amount of time, was deemed ready to be transferred to a less secure facility. The defendant was then sent to Creedmoor.

Dr. Hegarty continued that while at Creedmoor, the defendant had some difficulties and over the years had several very serious psychotic breaks. However, his last psychotic break occurred in [*4]1998. Dr. Hegarty explained that in the past, when the defendant suffered a psychotic break, he developed very real psychiatric symptoms, such as agitation, unintelligible speech, unsanitary behavior, and a threatening disposition, sometimes requiring emergency medication. Furthermore, Dr. Hegarty commented that when the defendant would re-compensate, once his medication took effect, the turnaround in his manner would be quite dramatic. He would be coherent, appropriate, intelligent, sophisticated, and interested in art and literature. She testified that the contrast between the defendant on and the defendant off his medication is one of the most dramatic she has seen during the course of her career. Dr. Hegarty stated that the defendant's decompensations were attributed to the defendant not taking his medication, and also to substance abuse. In 1998, the hospital was granted the authority to medicate the defendant over his objection. He has been medicated ever since, and has not decompensated since.

During the doctor's testimony, the Court asked the witness whether, if she could be assured that the defendant would always take his medication in the correct dosage at the correct time, his retention would be necessary, or would there be a way, less intrusive than retention, for the State to exercise control over him? Dr. Hegarty explained that she believed the defendant would do well in the community, and in a less strict setting than retention provides, as long as the defendant could make a safe transition to the community, and if she were assured that he would stay off drugs and remain on his medication. At this point in time, Dr. Hegarty stands behind the application for retention.

Dr. Hegarty continued that she has serious concerns about the defendant abusing substances. She said that she also has serious concerns about the defendant's ability to tolerate the stresses (sometimes referred by witnesses as "stressors") that he will face if he is suddenly moved from the type of setting he is in right now to being absolutely at liberty in the community. She elaborated that, additionally, she had concerns about a personality disorder that the defendant suffers from and that disorder, along with stress, would set him up for failure. Dr. Hegarty testified that the hospital needs to increase the defendant's privileges, and needs to place him in a more competitive work environment and a more competent educational environment. She explained that the defendant will need help facing the kinds of stressors that he will have to deal with with an increase of privileges, and that he should face the increases in a gradual step by step manner. Dr. Hegarty stated that though the defendant is a young, intelligent man, he has been hospitalized and out of the community for many years.

Dr. Hegarty continued that she believes the defendant is ready for unescorted off- grounds privileges, that he needs to [*5]attend school, and to get re-acquainted with a work environment. Upon questioning by the Court, Dr. Hegarty testified that she also believes that, since the defendant is well aware of the fact that he needs to continue taking his medication and not abuse substances, there could be a treatment plan put into place which transitions the defendant into the community rather quickly, by granting him increased privileges while at the same time providing him the infrastructure necessary to support him. At pages 31-34 of the hearing transcript dated September 3, 2008, the Court asked the doctor, see page 34, line 5, "you're ready to give the man without conditions" [sic]? The doctor indicated that if it were up to her, absolutely. However, clearly there is a typographical error in the transcription of that query by the Court and it is unclear from the colloquy if the doctor is referring to releasing the defendant on unescorted furloughs, or conditionally releasing him with an order of conditions. Though the language of the Court's question seems to indicate that the Court was inquiring about some type of release for the defendant, probably release with an order of conditions, recent reports by this witness indicate that she recommended to the hospital's forensic committee that the defendant be granted only unescorted furloughs.[FN7] Whichever recommendation the witness was making, it is clear that this witness feels the defendant should be receiving far more privileges than he is getting, and though the hospital was totally behind a substantial increase in privileges, her testimony indicated that the Bureau of Forensic Services [FN8] [*6]denied her recommendation.[FN9]

Dr. Hegarty testified that the defendant is suffering from schizophrenia, a narcissistic personality disorder, and that he has a history of mixed substance abuse. When discussing his mental illness of schizophrenia, Dr. Hegarty testified that when the defendant is on his medication, he is symptom free. She stated that when he is well, there is no evidence that he suffers from a thought disorder, hallucinations, or delusions. She continued that except for some issues relating to his personality disorder, the defendant is logical, coherent, and goal directed in his speech. Dr. Hegarty commented that she believes the defendant knows that he must take his medication, is motivated about taking it, and that he is horrified thinking about the image he presented when he was sick.

Upon being questioned about what effect a narcissistic personality disorder has upon the defendant's diagnosis of schizophrenia, Dr. Hegarty testified that the disorder may be an indication why a person with schizophrenia may be violent to the extent of committing a homicide. She explained that while schizophrenia does not usually entail the risk of terrible violence, the underlying personality of the person may contribute to violent tendencies. She stated that hallmarks of a narcissistic personality disorder are a grandiose sense of self, the sense that rules do not apply to the individual, and that one is entitled to special privileges and dispensations. The doctor submitted that sometimes medications are helpful to treat personality disorders and sometimes other modalities of treatment, such as therapy, are helpful.

Dr. Hegarty testified that patients with narcissistic personality disorder have issues with a high self-esteem. When they are stressed, or if they are not treated with deference as to things to which they feel they are entitled, they may become irritable, agitated, angry, upset, depressed, or they may reach for drugs to comfort themselves. Dr. Hegarty elaborated that regarding the defendant for example, when he first came to Creedmoor, he abused drugs due to the stress of his arrival. She continued that he also, due to the disorder, had difficulty accepting his role as a patient, difficulty accepting the notion that he needs medication, and had a ceratin rigidity and [*7]inflexibility in dealing with situations. She testified that the defendant had inappropriate relationships with the staff, which she said was an example of how he did not see himself as a patient in a hospital. Dr. Hegarty said that the defendant had tremendous pressure to succeed placed upon him while growing up. Dr. Hegarty stated that the defendant has made a long and painful journey in realizing what type of help he needs.

Dr. Hegarty testified that she is hoping for the defendant to have a safe transition into the community, where she believes he can do well. She wants him to experience the education system and a stable work environment, where the defendant can see how he measures up to others. However, Dr. Hegarty cautioned that if the defendant were released into the community too quickly, she believes it would be extremely likely that he would relapse, especially with regards to substance abuse, which would have a devastating impact on his psychiatric condition. She continued, that, in her opinion, the defendant is in need of continued retention as a patient in Creedmoor. Dr. Hegarty explained that while the defendant has done well, retention is necessary to effect a safe transition into the community in order to reduce the risk of relapse, and to set him up for success. The doctor submitted that his personality disorder makes him less flexible and resilient in dealing with the stresses of release, and that without a gradual progression of privileges, the stresses could increase the likelihood of the defendant abusing drugs, which could in turn trigger a schizophrenic decompensation. Dr. Hegarty opined that it would be overwhelming for the defendant to go from a totally structured environment to one where everything is in his own control.

Upon questioning by the Court, the doctor stated that if it were up to her, the process of gradually increasing the defendant's privileges and teaching him the skills needed to live on his own would have begun already, but that the Bureau of Forensic Services is denying the defendant the increased privileges. Dr. Hegarty does not concur with its judgement. She continued that if retention is granted, she would do everything in her power to make sure that the increased privileges begin as soon as possible. Dr. Hegarty testified that without a safe transition into the community, she believes it is likely within a reasonable degree of medical and psychiatric certainty that at some point the defendant would pose a danger to himself. She continued that due to his personality disorder it is her opinion that the defendant's judgement is impaired to the point that he does not understand the need for continued impatient treatment.

Dr. Hegarty testified that the defendant tends to see himself as a victim, and that he has a hard time dealing with people who have a negative opinion of him. The doctor continued that, in light of the defendant's ability to function in the [*8]community, she believes that as long as things are going well for him, and he remains on his medication and refrains from drug abuse, he will do fine. Dr. Hegarty stated that problems may occur when people do not react to the defendant as he would like, or that he does not have the success he hopes for socially, interpersonally, or in the art world, as the defendant is an artist. She stated that when things do not go right in a certain way for someone with narcissistic personality disorder, they can suffer paranoia, rage, and they can decompensate. The doctor said that in the defendant's case, when he decompensates, he becomes disorganized, aggressive, and agitated. She elaborated that should the defendant decompensate while in the community, she would be concerned about psychosis and violence. Dr. Hegarty concluded her direct testimony by stating that though the defendant appears in Court demonstrating absolutely no signs of any problems whatsoever, until a safe transition into the community is effected for the defendant, discharging him now would not be consistent with public safety.

Upon cross-examination, Dr. Hegarty testified that in February, 2002, she performed a forensic evaluation, a risk assessment, of the defendant, which might have required her testimony in court. Furthermore, Dr. Hegarty indicated, in a report dated November 6, 2002, that in June, 2002 she began individual psychotherapy with the defendant, which involves a client/therapist relationship. Dr. Hegarty stated that she asked the defendant to consent to her taking on this dual role, as both risk assessor and treating doctor, which he gave. She acknowledged that this put the defendant in a compromising situation, in that he may have answered in the affirmative just to appease her. The doctor did not have the defendant sign a consent form, and she wrote no note in his hospital record indicating his consent. Dr. Hegarty testified that though she is aware of American Academy of Psychiatry guidelines for the practice of forensic psychiatry indicating that, generally, treating psychiatrists should avoid evaluating their patients for legal purposes, it was not a poor decision in this case for her to take on that dual role.

Dr. Hegarty testified that she completed her risk assessment in October of 2002, and that she asked the defendant in late December 2002 if he wanted to continue the individual psychotherapy, and that he indicated that he did. Dr. Hegarty stated she stopped the psychotherapy in January of 2003 because, in part, her schedule was disrupted in that she broke her arm and leg. The doctor also stated that her assessment was completed. Dr. Hegarty testified that she conveyed to the defendant that she would stop seeing him for individual therapy soon after the risk assessment was completed. Dr. Hegarty testified that at some point, early 2003, she called defense counsel wanting to assign [*9]the defendant a new psychotherapist who she thought would be good for the defendant, and informed counsel that the new doctor would not be evaluating the defendant for court purposes. A new individual psychotherapist, however, was not assigned to the defendant until spring of 2004.

Dr. Hegarty testified that prior to the instant offense the defendant had never been hospitalized for mental health purposes, nor was he receiving psychiatric care. He was, however, smoking a great deal of marijuana, suffering from paranoia and psychosis, hearing voices, and receiving messages from the TV. It has been 10 years since the defendant has received messages from the TV and he has not heard voices since 1990. Dr. Hegarty testified that the defendant has not had severe psychotic episodes for 10 years, and it has been much longer since he has suffered other psychiatric symptoms.

Dr. Hegarty continued that the defendant knows the signs and symptoms of his mental illness, and knows to tell his psychiatrist if he exhibits any of them. The doctor testified that the death of the defendant's father was one of the things that set the defendant's psychosis in motion. Furthermore, after his father's death, the defendant began smoking marijuana to such a degree that his functioning deteriorated.

Dr. Hegarty stated that the defendant had improper relationships with the staff, and some of the relationships were of a sexual nature. The doctor testified that one of the individuals with whom the defendant had an improper relationship, although not a sexual one, was a social worker. The doctor conceded that apparently it was the social worker who was inappropriate with the defendant, when she shared a great deal of very personal information with the defendant. Additionally, though not permitted to be an escort for the defendant, she took him off hospital grounds, in her car, to an art store. The social worker subsequently resigned.

Dr. Hegarty also testified about another staff member, a therapy aid, who was inappropriate with the defendant when she was seen on a video sitting on the defendant's lap, with her breasts exposed. The doctor testified, regarding two pictures that were marked for identification as defense exhibits A and B, and demonstrating improper behavior between the defendant and the aid, that the defendant told her that the pictures were taken for an art show. Dr. Hegarty continued that a third individual, a nurse on the defendant's treatment team, was also inappropriate with the defendant. Dr. Hegarty acknowledged that the nurse flirted with the defendant, would bring him food and books, show him special favors and attention, had the defendant assist her with her classes, confided in the defendant regarding her marriage, and possibly engaged in sexual behavior with him.

Dr. Hegarty continued that a fourth individual, a housekeeper, [*10]was also inappropriate with the defendant. The housekeeper was making flirtatious remarks to the defendant and was leaving chocolates on his pillow. The defendant reported this to the staff. The People at this point in the testimony stipulated that there certainly was malfeasance and inappropriate conduct regarding the defendant during the time period in the 1990s (see, the minutes, dated September 10, 2008, page 192, lines 19-22). Furthermore, the Court indicated to the defense that the point was made that many professional people failed in their duty towards the defendant (see, the minutes, dated September 10, 2008, page 190, lines 4- 6).The doctor testified that in May of 1994, the defendant tested positive for illegal drug use. The defendant, however, denied any drug use, and claimed that his urine specimen was mishandled. An investigation followed that allegation. A report dated June 30, 1994, by one Sam Marco was deemed in evidence. The report demonstrated that the defendant's allegation of a mix-up with someone else's urine was substantiated.

Dr. Hegarty continued her testimony during cross-examination by stating that she had conducted a mental status examination of the defendant and her exam indicated that the defendant had excellent social skills, makes good eye contact, and is able to engage in social small talk without difficulty. She continued that his manner is charming, he is alert and oriented, he displays no evidence of movement disorder or medically induced Parkinson's disease, his facial expressions are appropriate, and he is able to pay attention for long periods of time. At this point during the doctor's testimony (see, the minutes, dated September 10, 2008, pages 199- 200), defense counsel referred to Dr. Hegarty's report in evidence, dated November 6, 2002, and alerted the Court to her findings that the defendant demonstrates no evidence of distractibility, when interrupted, he easily returns to the topic at hand, he has a vocabulary consistent with his superior intelligence, he can recall new information, retains knowledge of relevant dates, names and events, shows no evidence of short or long term memory disorder or thought disorder, and denies symptoms of hallucinations or delusions.

Dr. Hegarty continued her testimony acknowledging that there came a time when she recommended the defendant for unescorted off-ground furloughs, based upon her interview of him on October 10, 2007. The doctor indicated that she signed an affidavit on October 31, 2007, supporting such relief, and said affidavit was deemed in evidence. The doctor stated that in the affidavit, she diagnosed the defendant with schizophrenia, with substance abuse in remission while he was in a controlled environment. She conceded that the affidavit did not include the diagnosis that the defendant suffered from narcissistic personality disorder. The doctor indicated that if that diagnosis was not on the [*11]affidavit it was an omission that should be corrected.

Dr. Hegarty testified that the defendant had done well with unescorted on-ground privileges, since prior to 2002, and the defendant would walk everyday from his building to Creedmoor's Living Museum [FN10]. The doctor testified that the defendant was never an elopement risk during the 30 minute walk. Furthermore, the defendant has been approved, by the hospital forensic committee and the Bureau of Forensic Services, for escorted off-grounds privileges, without gender restriction for his escort.Dr. Hegarty testified that she is presently recommending the defendant for unescorted off-grounds furloughs.[FN11] She continued that the hospital forensic committee has also made this recommendation.[FN12]

Dr. Hegarty testified that Dr. Grandy, the head of the hospital forensic committee in 2007, wrote a report dated October 23, 2007, indicating that Dr. Grandy performed a mental status examination on the defendant. Dr. Hegarty continued that the report, which was deemed in evidence, indicated that the defendant's responses were spontaneous, goal directed, relevant, and that no psychotic symptoms on the part of the defendant were elicited. The report also indicated that the defendant denied hallucinations, suicidal ideas, homicidal ideas, that he displayed no cognitive impairment, that he was tearful when discussing his mother's death, and that he had feelings of remorse. Furthermore, it indicated that the defendant admits that the chronic use of marijuana played a part in his homicidal [*12]behavior, that medication saved his life, that the defendant is compliant with his medication and his privileges, and that random drug screenings are always negative. Additionally, the report indicated that the defendant is free of psychotic symptoms, attends NA and AA meetings, and understands the importance of being involved in substance groups to stay drug free.

Dr. Hegarty testified that the defendant has been stable since 1998, and has abstained from illegal drug use since 1992. The doctor stated that these facts indicate that the defendant's medication is working, in a structured setting with the absence of illegal substances. The doctor continued that the stresses the defendant would face if released to a nonstructured setting would lead to a reoccurrence of the his psychotic symptoms. However, after a safe transition has been made, the treatment team would want to release the defendant into housing on the grounds of Creedmoor. Such housing would be structured in a sense, but very much less so than the structure that is provided in the hospital. Dr. Hegarty testified that the defendant has stresses just by being a patient in the hospital. One of those stresses includes living with other patients who suffer from their own mental illnesses. The doctor continued that though the defendant faces countless stressors, he is functioning quite well, and has become a famous artist, with a body of work that he could be proud of. She stated that before he was in the structured hospital setting, the defendant was paranoid, abusing drugs, going from job to job, and despite being an intelligent, creative man, had no work to be proud of. Dr. Hegarty testified that the hospital ward, the medication, the supervision, the absence of illegal drugs, and the Living Museum have been the secrets of the defendant's success, and the defendant's situation should be changed only gradually for a safe transition to the community to be effected.

The Court questioned Dr. Hegarty about why she would ever recommend that the defendant be released, since she testified that the defendant's abilities as an artist have flourished with the medication and structure of the hospital. Dr. Hegarty responded that not only does the defendant not want to be hospitalized, but they only keep people in a hospital who need it. Furthermore, the doctor testified that she is duty- bound to keep a patient in the least restrictive environment as possible. She continued that the hospital's plan for the defendant includes having him released from the hospital, without retention, on an order of conditions [FN13]. The doctor stated that she believes such [*13]release would take place in anywhere from 6 months to 18 months. Dr. Hegarty testified that she reviewed the comprehensive treatment plan signed by Dr. Russo, and deemed defense exhibit C in evidence, which indicates that the defendant had an anticipated discharge date of March 14, 2008, and he would be referred to a structured and supervised residential setting, with psychiatric aftercare including medication management, substance abuse counseling, and case management services.[FN14]

Dr. Hegarty testified that there came a time between February, 2002 and November, 2002 when she borrowed a manuscript from the defendant. This manuscript was a narrative by the defendant, a novel, about his experiences in the system, including the circumstances leading up to, and shortly after, the death of his mother. At some point, the defendant asked the doctor to return the manuscript, and by July, 2004, she had not. Dr. Hegarty testified that she, and her supervisor, received multiple memos from defense counsel, throughout 2004, 2005, and 2006 requesting that the defendant's manuscript be returned to him. The doctor testified that she did not respond to the memos, nor did she return the manuscript until late 2006.[FN15] Dr. Hegarty testified that she was using the narrative in preparing her assessment of the defendant. The doctor conceded that her behavior was inappropriate, and she should have apologized to the defendant. She further conceded that it must have been a stressful situation for the defendant.

At this point in the hearing, Dr. Hegarty was questioned about the position of the Bureau of Forensic Services regarding her application to grant the defendant unescorted off-ground furloughs (see, hearing minutes, dated December 12, 2008, pages 267- 272) . Dr. Hegarty testified that though she, and the hospital forensic committee, made this recommendation, it was forwarded to the Bureau, where the recommendation remained for approximately ten months, before the request was denied. Dr. Hegarty continued that no one from the Bureau personally interviewed the defendant, though she made that request. The doctor testified that she received a memo, dated August 21, [*14]2008,[FN16] from the Bureau, raising some concerns about the defendant [FN17] and indicating that the Bureau decided to turn down the application. Dr. Hegarty testified that she felt that the Bureau was wrong in it's determination, and she believes that the defendant should have been granted unescorted off-ground furloughs.

Dr. Hegarty continued her testimony by stating that the defendant is using his unescorted on-ground privileges, and his escorted off-ground privileges, appropriately. The doctor indicated that the defendant is attending college courses, and receiving vocational training, to aid in his safe transition into the community. She stated that in his classes, he was in attendance with both men and women. She explained that eventually, she sees the defendant being released into the community, as he is an extremely high functioning patient, and she stated she is not certain into what type of residence he would need to be placed, if he would even need a supervised residence on Creedmoor's grounds. However, Dr. Hegarty testified that the transition to that point needs to be gradual. She explained that the defendant's existence is sheltered, and sudden and abrupt changes are not good. Also, she stated that though he is drug free, temptation for substance abuse is always there. She is concerned that if everything is handled too quickly, the defendant may decompensate. The doctor wants to slowly remove the shelter that surrounds the defendant so it can be seen how he would handle different situations, while still having the full support of the hospital.

The Court questioned Dr. Hegarty that if the Bureau of Forensic Services never grants the defendant the privilege of unescorted off-ground furloughs, how would the defendant ever get the chance to test his abilities? The Court also pointed out that if retention were denied, and the defendant were allowed to live under an order of conditions, an order could be fashioned in such a way as to involve a considerable amount of structure. However, the doctor stated that an order of conditions does not involve the ability to monitor the defendant as closely as retention does. Dr. Hegarty responded that she plans to apply again for the defendant to have the privilege of unescorted off-ground furloughs, since she feels that the defendant deserves them. She stated that her belief, that he needs to be [*15]transitioned, prevents her from agreeing with the defendant that he should be discharged. However, she did concede that as long as the Bureau of Forensic Services adheres to it's position, he will never be transitioned. Dr. Hegarty testified that this issue of being denied an opportunity for a furlough, and a chance at a bit of autonomy, clearly would be a stressor for the defendant.

Dr. Hegarty concluded her testimony during cross-examination by indicating that the defendant knows how to use public transportation, knows how to behave in public, how to budget and use a savings and checking account, and has been incident- free during his escorted privileges. Furthermore, the doctor stated that the defendant received a grant in the 1990's from the New York State Council for the Arts, for writing, that he has and knows how to use a computer, and works in a paid position at the Living Museum. At this point in the retention hearing, the State rested.

The first witness called on behalf of the defendant was Dr. Janos Marton, an associate psychologist at Creedmoor Psychiatric Center, and the director of the Living Museum. Dr. Marton testified that the defendant spends four to five hours a day, four days a week, at the Museum, doing art therapy as well as his paid job in the patient employment program, doing whatever work needs to be done at the museum, such as passing out art materials and instructing people on how to use equipment. The defendant has been involved with the Museum for the past 10 years. Dr. Marton testified that for the past 10 years, he has observed the defendant to be free of any symptoms of his mental illness. The doctor stated that the defendant is cooperative, gets along well with peers and the staff, conducts guided tours of the Museum for the public, and is a useful member of the Museum's community. The defendant also exhibits his work at the Museum. The doctor continued that the defendant is a gifted artist, has had commercial success with his work, and is very appropriate when participating in art shows outside of Creedmoor's Living Museum.

The Court framed the issue at this hearing for Dr. Marton, and explained to him that the defendant wants to be released from inpatient care at Creedmoor on an order of conditions, where a lot of autonomy is involved, where there is much less structure, and a lot of self-restraint and discipline is needed. The Court asked the doctor if the defendant can cope with that and if he will do well. The doctor replied in the affirmative. The Court asked the doctor if there is much danger in the defendant relapsing. The doctor replied in the negative. Dr. Marton testified that the defendant would take care of his mental hygiene needs, that he would turn for help if he needed it, and that he would take his medication. Additionally, Dr. Marton testified that the defendant has insight into his mental illness. [*16]The doctor continued his testimony by explaining that the defendant is very fortunate in that he responds well to his anti-psychotic medication, Haldol, which he receives once a month by injection. Furthermore, the defendant suffers no side effects. Dr. Marton testified that the defendant's attitude towards his medication is very good, in that he has no problems taking it, knows he needs it, and recommends to others that they do the same. The defendant is aware of the connection between medication and breakdown. The doctor stated that this viewpoint is a very important factor in discharge, in that most relapses occur from the discontinuation of medication.

Dr. Marton testified that the defendant has been stable for the past ten years. The doctor said that he has not observed any sociopathic behavior, paranoid delusions, hostility, or aggression, in the defendant. Dr. Marton testified that at this time, he feels that the defendant is suitable for conditional release from Creedmoor. The doctor recommended that certain conditions be imposed upon the defendant, should he be released, including medication, outpatient treatment, housing in specific residential facilities on Creedmoor's grounds, employment, random drug testing, and the continuation of his work with the Living Museum. Dr. Marton testified that the defendant's conditional release from Creedmoor would be consistent with public safety and the welfare of the defendant.

The State did not cross-examine Dr. Marton.

The next witness to testify, Dr. Lawrence Siegel, was called by the defense. He was appointed by the Court as an independent psychiatric examiner. Dr. Siegel testified that he interviewed the defendant five or six times over the years, starting in 1992. The doctor stated that since 2001, the defendant's mental illness has been in a state of remission, he has been compliant with his medication, has consistently tested negative for the abuse of drugs, and has met all of the treatment goals delineated by the hospital. Dr. Siegel stated that the defendant has handled his privileges well, has not been involved in assaultive behavior, has not experienced any hallucinations, and is sensitive to other people.

Dr. Siegel continued his testimony by expressing his opinion that the defendant should have been transitioned to community residence in 2001, and the hospital should have expeditiously, at that point, granted him unescorted furloughs to prepare him. The doctor stated that the defendant's crime was due to his psychosis, and not due to any alleged difficulty with women, or narcissistic characteristics. Dr. Siegel testified that he has not seen these traits in the defendant, in any event. Dr. Siegel stated that the defendant is quite aware of his need for medication, and that he always shows up, once a month, to receive his injection. The doctor stated that the defendant is [*17]remorseful for his actions in committing the homicide. Dr. Siegel testified that the defendant's psychosis has been in remission since 2001, and that he is quite ready to be transitioned in the community. Dr. Siegel emphatically stated that the defendant needs to be released from the hospital at this point in time. He continued that there is no reason for him to stay, that it has been 8 years since he has been ready to transition, and that the defendant can be managed as an outpatient. Dr. Siegel submitted that the thought of keeping the defendant in the hospital is unconscionable, that he poses no risk, and that he sees no reason why the hospital is unwilling or unable to implement a plan of release for the defendant. The doctor stated that there is an overwhelming probability that the defendant will be successful upon his release. Furthermore, the defendant anticipates the continued monitoring by the State, and wants the support that the State will provide him. Dr. Siegel also submitted that he fears that if the defendant is kept in the hospital too long, and he has been ready for release for 8 years, it is going to be increasingly difficult for the defendant to maintain his creative self.

Dr. Siegel testified that if the defendant were to be conditionally released, he should, among other things, live in a structured residence, receive psychiatric treatment, continue at the Living Museum, receive medication, and be randomly drug tested. Those conditions would help the defendant maintain his positive mental health adjustment, and provide him with a sufficient network of support. The doctor stated that the defendant's conditional release would be consistent with the public's safety, and the welfare of the defendant.

Upon cross-examination by the Assistant Attorney General, Dr. Siegel testified that he diagnosed the defendant with having paranoid schizophrenia in remission. Contrary to Dr. Hegarty's diagnosis, Dr. Siegel did not diagnose the defendant as suffering from narcissistic personality disorder. Dr. Siegel explained that he did not find indications that the defendant was narcissistic, or that that disorder was an ongoing problem for the defendant.

Upon cross-examination by the Assistant District Attorney,

Dr. Siegel testified that at the time the defendant murdered his mother, he was heavily abusing marijuana, which produced some bad effects for him, including the destabilization of his mental condition. The doctor continued that after the defendant was admitted into the hospital in the 1990's, the defendant had two episodes of psychosis associated with his stopping his medication. The defendant also had one or two instances when he tested positive for marijuana. The doctor stated that he believed that one instance of a positive marijuana test was associated with an episode of psychosis, and another time was just a random [*18]drug test that was positive. However, the last positive drug test was 13 years ago. The doctor continued that marijuana in general tends to destabilize individuals who are suffering from an underlying psychotic illness. Medication is a protective factor. Dr. Siegel testified about the defendant's symptoms when he is psychotic, but stated that he has not had an episode in nine years, and the treatment he receives allowed his illness to go into remission. Furthermore, the doctor testified that if the defendant were to begin to decompensate, it would be clear to anyone observing him that he was having difficulty and that he needed assistance and treatment.

When Dr. Siegel was asked whether it would be more prudent and consistent with the public safety and welfare of the defendant that the defendant be granted unescorted furloughs, but return to the hospital so his condition could be evaluated, instead of being conditionally released, Dr. Siegel stated that that was his recommendation in 2001 and 2005. He explained that at this point, after so much more time in which the defendant has been stable, the defendant needs to be out of the hospital. Dr. Siegel stated that the defendant has been watched for 9 years, is nonpsychotic, and that he could be sufficiently monitored with an order of conditions. That such an order would provide enough protection that if the defendant were to develop problems, corrective actions could be taken. Furthermore, Dr. Siegel stated that the hospital has made no effort to transition the defendant in anticipation of conditional release, and that though there were attempts made during the course of this hearing to get the defendant unescorted furloughs, those furloughs have not been forthcoming. Dr. Siegel testified that though furloughs are generally granted before release, at this point the application is for retention, and he recommends that the defendant not be retained. He stated that the defendant needs to get out of the hospital.

Dr. Siegel continued that alcohol is also something that the defendant needs to avoid. He stated that the defendant has the understanding that he needs to avoid alcohol, as well as marijuana. Furthermore, Dr. Siegel stated that it is likely that he also has the ability to avoid those substances. However, since the doctor does not want to trust it to his ability alone, the defendant should continue with treatment and random screens, but the focus of his treatment should be as an outpatient. The defendant is not cured, but he has progressed to the point that his problems should be managed as an outpatient. Should a problem develop that would require the defendant to be returned to the hospital, so be it, but he more than maximally benefitted from the being an inpatient at the hospital.

The next witness to testify was Dr. Allen Reichman, retained on behalf of the defense. Dr. Reichman testified that he has [*19]reviewed the hospital record of the defendant, and other psychiatric reports concerning him, and has interviewed him in the past. Dr. Reichman interviewed the defendant on May 15, 1997, December 22, 2006, May 29, 2008, and January 22, 2009. In May of 1997, Dr. Reichman was appointed by the court as an independent psychiatrist, and he supported the defendant's application, at that time, opposing retention.[FN18]

Dr. Reichman testified that the defendant does not have any of the signs or symptoms of the psychosis he had when he committed the instant homicide, and that he has not had any symptoms since 1997. He continued that the defendant began receiving long acting Haldol, via injection, in early 1998. Ever since he has been on that medication, the defendant has not exhibited any evidence of psychosis, and he has been stabilized for over ten years. He shows no sign of delusional thinking, suicidal or homicidal ideations, has not had any hallucinations, and has good insight and judgement regarding his condition and need for further treatment. In fact, Dr. Reichman testified that the defendant indicated to him that he anticipates he will be in psychiatric treatment, and be receiving medication, for the rest of his life. The defendant informed the doctor that he recognizes the danger of drugs, and informed him of his intention to remain clean and sober, and in substance abuse treatment, for an indefinite period of time.

Dr. Reichman testified that the defendant has met all the treatment goals set for him by the hospital, and has insight into his mental illness, and his need to take medication. Dr. Reichman stated that the defendant knew that if he were to stop taking his medication, it would almost certainly lead to a recurrence of his psychiatric symptoms. Dr. Reichman stated that there was a time in 1997 when the defendant became noncomplaint with his medication and his symptoms flared up, and the defendant said he does not want that to ever happen again. The doctor submitted that the defendant also appreciates the risk that illegal drugs and alcohol pose to his mental health.

Dr. Reichman testified that the defendant has been in the hospital far too long, and he should have been released years ago. The doctor continued that the defendant needs an outpatient setting, and that he worries about the danger of the defendant becoming more attached to the hospital and less able to manage without it. The doctor stated that that would be a terrible disservice to him.

Dr. Reichman continued his testimony by stating that it is his opinion, with a reasonable degree of psychiatric certainty [*20]that the defendant does not suffer from a dangerous mental disorder at this time. When asked by defense counsel if he had an opinion, with a reasonable degree of psychiatric certainty, whether the defendant suffers from a mental illness that requires inpatient care and treatment at this time, the doctor replied that the defendant is mentally ill, which is chronic, but he does not need any further impatient treatment for that condition. Furthermore, Dr. Reichman testified that it would be consistent with public safety and the welfare of the community, and the defendant, for him to be conditionally released at this time. If the defendant were conditionally released, the doctor would like to see the Court set certain conditions, including a continuation of psychiatric treatment, medication, and substance abuse treatment with random drug testing. He stated that initially the defendant should live on the grounds of the hospital, which the defendant indicated to the doctor would be his plan, and at some point in the future, it might be better for him to move elsewhere.

On cross-examination by the Assistant Attorney General, Dr. Reichman testified that his diagnosis of the defendant is paranoid schizophrenia, which he believes is in full remission at this point. The doctor testified the defendant is in remission because of his medication and the absence of drug involvement. Dr. Reichman stated that he does not think that the defendant has any significant personality disorder. Furthermore, the doctor stated that even though the defendant is protected by the fact that he is high functioning for an individual with a mental illness, and that he has a high degree of self-esteem, he still is at risk to be hobbled by institutionalization if he is kept in the hospital for too long. He stated that that has not happened yet. The doctor continued by stating that there is no aspect of the defendant's mental illness that does not respond to medication.

Upon cross-examination by the Assistant District Attorney, Dr. Reichman testified that at the time the defendant committed the homicide his symptoms included bizarre delusions, hallucinations, and a loss of the ability to maintain a realistic outlook as to what was going on. He was unable to control his behavior. The doctor stated these were cardinal symptoms of paranoid schizophrenia. Dr. Reichman stated that it is difficult to determine how long before the homicide the defendant was exhibiting those symptoms, but he does not think it was a long time. The doctor stated that he thinks the defendant did not have blatant psychotic symptoms for years before the incident.Dr. Reichman continued that the defendant was committed to a hospital immediately after the homicide. He continued that the defendant's outward symptoms were clearly present, and that is what led to the determination of his psychiatric status with [*21]regard to the crime. Furthermore, Dr. Reichman testified that marijuana is a dangerous substance for anybody with a mental illness. It can precipitate psychotic symptoms in a nonpsychotic individual, but with someone who is mentally ill, it is like poison. The doctor stated that the defendant used marijuana since he was hospitalized, approximately 12 years ago, and it lead to a deterioration in his condition. Dr. Reichman stated that they started using injectable medication on the defendant, as opposed to oral medication in 1998. Since the introduction of the injectable medication and the defendant's abstaining from illicit drugs, especially marijuana, his condition has been completely stable. It is the doctor's recommendation that if the defendant were released, he should be monitored for any kind of drug usage, as well as compliance with his medication.At the close of this witness' testimony, the defense rested. The State did not present rebuttal testimony.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The ultimate legal issue before the Court is whether the application of the Commissioner of Mental Health seeking a subsequent 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.

At a hearing on an application for retention, CPL 330.20[9] states that "the commissioner must establish to the satisfaction of the court that the 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. The order only ends the defendant's in-patient status (see, People v. Mooney, 20 Misc 3d 1131(A) [2008]). The defendant would be subject to an order of conditions (see, CPL 330.20[12]), 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 (see, CPL 330.20[1][n] and [13]). Furthermore, a violation of the order of conditions will subject the defendant to recommitment to the hospital and to the custody of the Commissioner (see, CPL 330.20[14]). The burden of proof for the application for retention is on the State, and it must establish [*22]that the defendant has a dangerous mental disorder or is mentally ill, by a preponderance of the evidence (see, Leon R. V. Palmer, 266 AD2d 218 [1999]; In re Jerriell O., 288 AD2d 313 [2nd Dept 2001]).

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,[FN19] 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".

During the course of the retention hearing, this Court heard testimony from four very competent and very compelling doctors. And though the position of the doctor testifying for the State in favor of retention, Dr. Hegarty, was, in part, contrary to the position of Drs. Marton, Siegel, and Reichman, who each favored the defendant's release, the Court finds it very noteworthy that all of the doctors agree on a great many things. All of them agree that the defendant has insight into his mental illness, including the signs and symptoms thereof; they all agree that the defendant is aware of his need to take his medication in order for his mental illness to remain in remission as he is now; they all agree that the defendant is aware of his need to refrain from any type of substance abuse; they all agree that the defendant intends to continue, indefinitely, with both his medication and his sobriety; they all agree that the defendant is in need of hospital privileges far exceeding what he is granted now; they all agree that it is unlikely that the defendant will have a relapse of his mental illness; they all agree that the defendant has been symptom free for more than 10 years, and has been drug free even longer; they all agree that the defendant has done well dealing with the stressors of living in the hospital; and they all agree that the defendant will do well living and working in a [*23]community setting. The Court finds this level of agreement, in an adversarial proceeding, to be quite remarkable.

The Court has concluded that the People have not met their burden of showing that the defendant suffers from a dangerous mental disorder, or is mentally ill, as those terms are defined statutorily in CPL 330.20. Though it is clear, as stated by Dr. Reichman in his testimony, that the defendant is chronically mentally ill in the broader, psychiatric, sense of the term, that factor alone clearly fails to meet the requirements for a defendant's in-patient treatment as provided by statute. See, CPL 330.20[1][c] and [d]. As to whether or not the defendant has a dangerous mental disorder within the meaning of the law, there has been virtually no evidence presented that the defendant constitutes a physical danger to himself or others. What little contrary testimony that was presented, that of Dr. Hegarty , was de minimus and wholly speculative.

As to whether or not the defendant is mentally ill under the statute, "a diagnosis of mental illness alone is insufficient to authorize further retention. CPL 330.20[1][d] also requires a finding that the defendant requires in-patient services at a psychiatric center and that [his] judgment is so impaired that [he] cannot understand that need for inpatient treatment" (see, People v. Mooney, 20 Misc 3d 1131(A), [2008]). Though Dr. Hegarty is tilted toward's the defendant's continued inpatient treatment, the Court declines to accept that conclusion, and instead, adopts that of Drs. Marton, Siegel, and Reichman who all testified that the defendant, at this point, requires only out-patient care.

The Court finds that the testimony of Dr. Marton, who works directly with the defendant every day, Dr. Siegel, the court-appointed independent psychiatric examiner, and Dr. Reichman, the previous independent examiner and now the retained expert, to be extremely compelling. Their combined opinions, clearly on the same page with one another, provide the Court with a clear picture of a defendant who has earned the chance for greater autonomy, long overdo. CPL 330.20 will guide the Court and the hospital to provide the defendant with the support he needs and a framework for assistance and continued treatment. Clearly, the testimony proffered by the defense supports this Court's finding that the defendant does not meet the definitions delineated in CPL 330.20 of having a dangerous mental disorder, nor is he, under the statute, mentally ill. For all these reasons, retention of the defendant at this point in time constitutes unconscionable State action.

A question that lingers is why Dr. Hegarty seems to favor the defendant's retention when her testimony indicates that she agrees with so many of the conclusions of the other three doctors at the hearing? In that connection, it appears that Dr. Hegarty [*24]and the hospital have been stalled by so many years of inaction on the part of the State psychiatric bureaucracy in Albany. The defense experts testified that the defendant should have been released years ago, and, at least, permitted unescorted off- ground furloughs. The testimony indicates that Dr. Hegarty, fundamentally, is not in disagreement with those conclusions. Dr. Hegarty stated that she believes the defendant will do well in the community, that the defendant is an articulate and smart man whose illness has been in remission for many years, and yet he still has insight into that illness. She testified that when the defendant is released, she is confident that he will succeed. However, the Bureau of Forensic Services has stymied her requests in recent years to increase the defendant's privileges and slowly prepare him for release. She conceded that there is nothing she can do unless or until the Bureau approves her request, which she admits could be never. In fact, the doctor stated that if retention were granted, she would do whatever she could to see that the defendant is gradually released. However, there is no assurance that that will ever happen, and she was never even able to guarantee the defendant some sort of relief over the months that this hearing was conducted. For example, though she testified she believed the defendant needed unescorted furloughs, and she would do everything she could to get them for him, she was never able to deliver on that aspiration. For the truth of the matter is that Dr. Hegarty's hands are tied by the Bureau of Forensic Services, and no evidence was presented to this Court that that State agency ever intends to approve a loosening of the reins upon this defendant. Unfortunately, the Court is forced to conclude that Dr. Hegarty's hopes for the defendant's increased autonomy are simply illusory. After all of the many, many months of false hope, such an expectation amounts to a pipedream. The Court is understanding of the State's claim that the usual practice is for a defendant to be granted unescorted furloughs before achieving conditional release. However, the record is utterly devoid of any sign that those furloughs will ever be forthcoming, and several of the testifying forensic experts have concluded, without contradiction, that defendant's further institutionalization will be destructive to him.

Throughout the course of Dr. Hegarty's testimony, she repeated her position that the defendant needs to be gradually and slowly released. However, the defendant has not been given any opportunity to fully rejoin the community in small steps. He has been symptom free since 1998, and yet, after these 11 years, the defendant does not have the privileges which purportedly, in a system operating properly, should precede his ultimate release. Dr. Hegarty stated that the defendant will do well in the community as long as he makes a safe transition, however, nothing has been done to ensure that that safe transition will ever [*25]occur. Although the mantra reiterated by Dr. Hegarty may be true, the hospital and Dr. Hegary have failed to live up to their obligation to make sure, that in the case of this patient, it comes to fruition.

The Court is well aware of the statement in In the Matter of David B., 97 NY2d 267, 279 [2002], that retention "may also be supported by the need to prepare for a safe and stable transition from non-secure commitment to release". Dr. Hegarty's testimony turns upon that concept. However, the Court is moved by the words of Justice Price in the case of People v. Mooney, 20 Misc 3d 1131(A)[2008] and finds that those words are resoundingly similar to the situation at bar. The Court, in that case, in rejecting the doctor's testimony that the defendant should be retained for the sole purpose of transitioning her back to the community, stated, "Regrettably the evidence adduced at the hearing established that Rockland Psychiatric Center has been woefully dilatory and neglectful in granting the defendant off-ground privileges and in planning for her transition back to the community. Indeed, her discharge planning has been nonexistent . The People's own expert. . . conceded that there was no clinical reason for withholding these privileges from the defendant. The hospital's inexplicable withholding of privileges recommended more than three years ago, which would have facilitated the defendant's transition back into the community, is particularly egregious in light of the defendant's life-threatening illness and the absence of any clinical reason for her retention. Thus, the Court finds that the State has not met its burden of proof by a preponderance of the evidence that the defendant should be retained for the purpose of preparing her for a transition back to the community". Though the defendant in the instant case is not suffering from a life threatening illness, he too has been waiting endlessly for privileges and release which might support him in his return to the community, with no credible reason for their denial. The Court, therefore, is unpersuaded that release of the defendant upon an order of conditions should only take place after the defendant has been granted a transitional phase in which he receives unescorted off-ground furloughs, inasmuch as that option has never been granted to the defendant.

The Court of Appeals in In the Matter of David B., 97 NY2d 267, 279 [2002], stated that when considering retention, "in addition to recent acts of violence and the risk of harm to the defendant or others that would be occasioned by release from confinement, a court may consider the nature of the conduct that resulted in the initial commitment, the likelihood of relapse or a cure, history of substance or alcohol abuse, the effects of medication, the likelihood that the patient will discontinue medication without supervision, the length of confinement and treatment, the lapse of time since the underlying criminal acts [*26]and any other relevant factors that form a part of an insanity acquittee's psychological profile". This Court has considered these factors very carefully. Looking to the testimony presented by each side, the Court notes there was no evidence of recent acts of violence on the part of the defendant, and no solid evidence beyond conjecture of the risk of harm to the defendant or others upon the defendant's release. There was testimony that the defendant's release would be consistent with public safety and the welfare of the community and of the defendant himself. Furthermore, the Court has looked to Dr. Marton's testimony about the low risk of the defendant relapsing, to all of the doctors' testimony regarding how the defendant has not had an incident regarding substance abuse since 1992, to all of the doctors' testimony about the defendant's successful medication regime, and the low likelihood of him ceasing that regime, and the lengthy time period, more than a decade, that the defendant has been psychosis free. Looking to this testimony, and after much reflection regarding it, the Court agrees with the opinions of the defense experts that the time has come for the defendant to be conditionally released from the hospital.

Accordingly, the State's application for a subsequent retention order is denied. The defendant will be conditionally released upon the Court's signing of an order of conditions. The parties are directed to formulate a written service plan in a proposed order of conditions (see, CPL 330.20[12]) that must, upon its approval by the Court, be complied with by the defendant. The issue regarding the substance of the order of conditions will be heard by the Court with all deliberate speed.This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order to the attorneys representing the parties.

.............................WILLIAM M. ERLBAUM, J.S.C.

Footnotes

Footnote 1: An order of retention, defined in CPL 330.20[1], subdivisions [g],[h], [i], and [j] is a court order authorizing continued custody of a defendant by the Commissioner of Mental Health for a specific period of time.

Footnote 2: After two retention orders have already been issued regarding a defendant, the third or any subsequent retention order is referred to as a "subsequent retention order". See, CPL 330.20[1][i].

Footnote 3: A release order is one, "directing the commissioner to terminate a defendant's in-patient status without terminating the commissioner's responsibility for the defendant" (see, CPL 330.20[1][m]). This order may also be referred to as a conditional release order, in that the defendant, if released, must be subject to an order of conditions. See, Matter of Oswald N., 87 NY2d 98 [1995]; see also, CPL 330.20[12]. An order of conditions is "an order directing a defendant to comply with [a] prescribed treatment plan, or any other condition which the court determines to be reasonably necessary or appropriate..." (see, CPL 330.20[1][0]). "Should a defendant fail to comply with the treatment plan specified in the order of conditions and thereafter become[s] dangerous to himself or others, the courts may, upon a hearing, recommit the defendant to a secure psychiatric hospital" (see, Matter of Oswald N., 87 NY2d 98, 102 [1995]).

Footnote 4: The defendant is represented by the State of New York Mental Hygiene Legal Service. The State's interests are represented by two different offices. The Queens County District's Attorney's Office represents the People of Queens County, in that the crime charged occurred in their jurisdiction. The Commissioner of Mental Health, and in turn the Office of Mental Health, as well as Creedmoor Psychiatric Center, are represented by the Office of the New York State Attorney General. It is not unusual for these two offices to work together, as they did in this case, in this type of hearing.

Footnote 5: Had the State consented, a possible settlement to this case may have involved the defendant being granted unescorted off-ground furloughs (see, CPL 330.20[1][k] and [10]), or perhaps a compromise on the time until the retention order would expire. Pursuant to CPL 330.20[1][i] the order is in place for a "period not to exceed two years".

Footnote 6: Dr. Hegarty explained that a clinical record is all of the documentation regarding a patient's treatment. The defendant's clinical record was deemed People's 1 in evidence.



Footnote 7: See, for example, affidavit of Dr. Hegarty, dated February 25, 2009, located in court file.

Footnote 8: The New York State Office of Mental Health Bureau of Forensic Services is "the Administrative Unit within the Division of State Psychiatric Center Management which is responsible for coordinating the delivery of mental health services to individuals involved with New York State's criminal justice system" (see, Office of Mental Health website, www.omh.state.ny. us/omhweb/forensic/BFS.htm). The Bureau of Forensic Services "coordinates the placement of persons and oversees the delivery of inpatient services to individuals committed to the custody of the Commissioner pursuant to various sections of the Criminal Procedure Law and Corrections Laws. In addition, State Psychiatric Management staff provide administrative, fiscal, and programmatic direction to forensic facility and forensic unit directors" (see, Office of Mental Health website, www.omh.state. ny.us/omhweb/forensic/BFS.htm).

Footnote 9: The Court notes that Dr. Hegarty was asked on cross-examination whether she was aware of a nurse who was reprimanded for making inaccurate entries in the defendant's file. The doctor was unaware of this. Two emails, dated March 13, 2008 and March 17, 2008, reflecting this, were deemed in evidence. Dr. Hegarty testified that the inaccuracies were not the reason why the defendant was denied unescorted off- ground furloughs.

Footnote 10: The Living Museum is a showcase for artwork produced by patients of the hospital (see, Wikipedia, the Free Encyclopedia, at http://en.wikipedia.org/wiki/The_Living_Museum). Dr. Hegarty testified that the defendant spends about 22 hours a week at the Living Museum, and he is also the art assistant to Dr. Janos Martin.

Footnote 11: A furlough is defined by CPL 330.30[1][k] as an order for the defendant to "temporarily leave the facility for a period not exceeding fourteen days, with or without the constant supervision of one or more employees of the facility".

Footnote 12: There was no testimony elicited, to this point in the hearing, regarding what position the Bureau of Forensic Services has taken concerning the hospital's, and Dr. Hegarty's request, that the defendant be granted these furloughs. The approval of the Bureau, as the overseer of the defendant's care, would be necessary before the hospital would grant the defendant this privilege.

Footnote 13: An order of conditions is defined in CPL 330.20[1][0] as "an order directing a defendant to comply with [the] prescribed treatment plan, or any other condition which the court determines to be reasonably necessary or appropriate..."

Footnote 14: The Court notes that the date when this testimony was elicited was September 10, 2008, but the defendant was not, in fact, discharged from the hospital.

Footnote 15: The memos were collectively deemed in evidence as defendant's exhibits D-1 and D-2.

Footnote 16: Along with the entire hospital record, this memo is in evidence.

Footnote 17: Such concerns included lack of insight, limited interest in the therapeutic process, and ongoing negative attitudes toward women.

Footnote 18: Dr. Reichman's reports concerning his interviews with the defendant were deemed marked in evidence.

Footnote 19: "The term "mental illness" as defined in Mental Hygiene Law [section] 1.03(20) means an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation" (see, Jamie R. v. Consilvio, 6 NY3d 138, 143 [2006]).