Matter of Larry TT.

[*1] Matter of Larry TT. 2009 NY Slip Op 51286(U) [24 Misc 3d 1206(A)] Decided on June 25, 2009 Supreme Court, Tompkins County Mulvey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 30, 2009; it will not be published in the printed Official Reports.

Decided on June 25, 2009
Supreme Court, Tompkins County

In the Matter of the Admission and Retention of Larry TT., a patient at Central New York Psychiatric Center

In the Matter of the Application of The State of New York, Petitioner,

against

Larry TT., a patient in the care and custody of the Office of Mental Health at Central New York Psychiatric Center, Respondent. for Civil Management Pursuant to Article 10 of the Mental Hygiene Law.





2008-0887



Office of the Attorney General

By: James J. Williams, Esq., AAG

Attorneys for Petitioner

207 Genesee Street, Room 508

Utica, New York 13501

Mental Hygiene Legal Service

By: David M. LeVine, Esq.

Attorneys for Respondent

40 Steuben Street, Suite 501

Albany, New York 12207

Robert C. Mulvey, J.

Respondent, Larry TT., currently a patient under the care and custody of the Central New York Psychiatric Center (CNYPC), has filed this motion seeking leave to renew his motion, brought in March of 2007, requesting dismissal of the underlying application for his admission to CNYPC made on or about February 23, 2007, dismissal of the application for his commitment to CNYPC made on or about March 5, 2007, and an order releasing Mr. TT. from CNYPC and the custody of the Office of Mental Health (OMH). The respondent's present motion also seeks dismissal of the State's application for involuntary hospitalization of the respondent pursuant to Article 10 of the Mental Hygiene Law made on March 25, 2008 and his immediate release from OMH custody, or an order directing that the respondent be afforded a hearing to determine whether he met the standards under Correction Law Sec. 402/MHL Article 9 for placement/commitment with OMH on February 23, 2007. Petitioner, Superintendent of the Attica Correctional Facility and Office of Mental Health/State of New York have submitted papers in opposition to the relief requested by the respondent.

The respondent, through his counsel, Mental Hygiene Legal Services, contends that the underlying applications made by the petitioner on February 23, 2007 and March 5, 2007 seeking admission and/or commitment of the respondent to CNYPC/OMH must be dismissed as a matter of law since such applications were made pursuant to Section 9.27 of the Mental Hygiene Law rather than Section 402 of the Correction Law as required by the decision of the Court of Appeals in Harkavy v. Consilvio I, 7 NY3d 607. Respondent also argues that if the administrative transfer and placement of the respondent with CNYPC/OMH was made pursuant to MHL Section 9.27, then the petition filed under MHL Article 10 on March 25, 2008 must be dismissed because the respondent did not qualify as a detained sex offender as defined in MHL Section 10.03 (g) (5). The respondent's initial motion to dismiss, brought by order to show cause on March 20, 2007, sought dismissal of the petitioner's applications referred to above on grounds that they failed to state a cause of action and constituted a violation of the decision of the Court of Appeals in Harkavy v. Consilvio I.

Petitioner opposes the relief requested by the respondent on several grounds including, 1) that the respondent has not sufficiently demonstrated compliance with the provisions of CPLR 2221 (e) with respect to his motion for leave to renew his prior motion to dismiss, 2) that the prior motion to dismiss was properly denied, 3) that the respondent was properly transferred to OMH pursuant to Section 402 (9) of the Correction Law, and 4) that the respondent qualifies as a "Detained Sex Offender" under MHL Article 10 (MHL Sec. 10.03 [g] [5]) and any further hearings conducted in connection with the respondent's civil confinement with OMH should be held in accordance with MHL Article 10. [*2]

Procedural Time Line - Reflected by the Record

7/30/93 - The respondent was sentenced in Tompkins County Court to a term of incarceration of 7 ½ to 15 years upon convictions for the crimes of Sodomy in the First Degree and Rape in the First Degree.

8/06/93 - The respondent was received into the custody of the New York State Department of Correctional Services (DOCS).

2/01/07 - Respondent was still in the custody of DOCS at the Attica Correctional Facility as an inmate undergoing his sentence of imprisonment.

2/07/07 - Supreme Court, Wyoming County, Justice Mark H. Dadd, presiding, signed an Order to Show Cause in connection with an application filed by the Superintendent of the Attica Correctional Facility seeking appointment of examining physicians pursuant to Sec. 402 (1) of the Correction Law with respect to involuntary hospitalization of the respondent. The Order to Show Cause appointed two physicians, Dr. Raja Rao and Dr. Robert Young, to examine the respondent. The portion of the Order to Show Cause that authorized the Commissioner of OMH to retain the respondent as an involuntary patient in a psychiatric center pending the hearing and determination of the application was struck from the order to Show Cause by Justice Dadd. The Mental Hygiene Legal Service was directed to be given notice of the time and place of the doctors' examinations. The return date on the Order to Show Cause was set for February 22, 2007. (Respondent's Exhibit 1).

2/13/07 - An Assistant Attorney General involved in the case sent an email to Counsel for DOCS indicating that one of the physicians appointed to examine the respondent had contacted him, and possibly the Court, and that physician stated that he did not want to do the exam and wanted to have the order lifted. The physician also stated that, if he did the exam, he would not be able to find that civil commitment was justified and that he was opposed to such proceedings. (Respondent's Exhibit 16).

2/20/07 - The Mental Hygiene Legal Service was advised that the court appointed physicians refused to examine the respondent on February 20, 2007. (Respondent's Exhibit 2).

2/22/07 - The Assistant Attorney General presented a new Order to Show Cause to Justice Dadd seeking the same relief as the previously signed Order to Show Cause except that two new physicians were to be appointed to examine the respondent. Justice Dadd refused to sign the new proposed Order to Show Cause without specifying any reason for such denial and returned the papers to the Assistant Attorney General unsigned. (Respondent's Exhibit 2).

2/23/07 - The Superintendent of the Attica Correctional Facility obtained written certifications from two examining physicians, Dr. Gorman and Dr. Gumbula, that the respondent suffered from mental illness for which hospitalization was appropriate, that such illness posed a substantial threat of harm to himself or others and that such hospitalization could reasonably be [*3]expected to improve his condition or at least prevent his deterioration. The Superintendent then signed and filed an Application For Involuntary Admission On Medical Certification with respect to the respondent and the respondent was released from the Attica Correctional Facility and transferred to the Central New York Psychiatric Center (CNYPC). (The heading on the Application form and a Notice of Status of Rights form made reference to Section 9.27 Mental Hygiene Law). (Respondent's Exhibits 3 and 12).

2/25/07 - The respondent's sentence(s) on the sex offenses committed in Tompkins County expired.

2/26/07 - The respondent signed a Request For Court Hearing form. (The box on the form labeled "Current Legal Status" contained the entry "9.27"). (Respondent's Exhibit 4).

2/27/09 - The Hon. Anthony F. Shaheen, J.S.C., Supreme Court, Oneida County, signed an Order appointing V. Komerath, M.D. and K. Sangani, M.D. as examining physicians and directing them to examine the respondent and report to the Court. The Order was apparently submitted to Justice Shaheen on an exparte basis. (The heading on the face of the Order made reference to Correction Law Sec. 402). (Respondent's Exhibit 5).

3/05/07 - The Executive Director of the Central New York Psychiatric Center, Donald Sawyer, Ph.D., for the Superintendent of the Attica Correctional Facility, signed a Notice of Application and Petition seeking an order committing the respondent to an OMH hospital for a period of six months based upon the certificates of Dr. Komareth and Dr. Sangani. The application was initially made returnable before Supreme Court, Oneida County on March 15, 2007. Copies of such documents were served upon the respondent's primary therapist and MHLS on or about March 7, 2007. (The heading on the face of the Notice of Application, Petition and Affidavit of Service made reference to Correction Law Sec. 402). (Respondent's Exhibit 6).

3/20/07 - The Hon. Robert F. Julian, J.S.C., Supreme Court, Oneida County, signed an Order to Show Cause filed by MHLS on behalf of the respondent seeking an order dismissing the application for admission made on or about February 23, 2007 and the application for commitment made on or about March 5, 2007 and seeking release of the respondent from CNYPC and the custody of OMH. This Order to Show Cause, under Index No. CA2007-744, was made returnable on April 2, 2007, in Supreme Court, Oneida County. (This is the initial motion to dismiss which the respondent now seeks to renew). (Respondent's Exhibit 7).

3/29/07 - The Attorney General's Office filed papers in response to the motion to dismiss made by MHLS on behalf of the respondent. (Respondent's Exhibit 8).

4/02/07 - Counsel from the Attorney General's Office and MHLS appeared in Supreme Court, Oneida County, before the Hon. Robert F. Julian, J.S.C. and, after the Court was advised by counsel that neither party had anything further to offer beyond their submissions, the Court denied the respondent's motion in its entirety from the bench. Neither the remarks of counsel nor [*4]the decision of the Court were placed on the record. (No order documenting or memorializing this decision was ever signed before Judge Julian's service as a Supreme Court Justice ended). (Petitioner's Exhibit A).

4/13/07 - Mental Hygiene Law, Article 10 - Sex Offender Management and Treatment Act (SOMTA) became effective as law.

12/26/07 - Notice of Determination From Case Review Team was issued with respect to the respondent pursuant to MHL Article 10, Section 10.05 (g). (Respondent's Exhibit 9 - Exhibit A).

3/25/08 - The petitioner filed a Notice of Petition and Sex Offender Civil Management Petition seeking involuntary hospitalization of the respondent pursuant to MHL Art. 10. The Petition, under Index No. CA2008-000873, was made returnable before the Hon. James C. Tormey, J.S.C., Supreme Court, Oneida County, on March 31, 2008. (Respondent's Exhibit 9).

3/28/08 - MHLS, on behalf of the respondent, filed a Notice of Removal with respect to the MHL Art. 10 proceeding that had been commenced in Supreme Court, Oneida County, demanding that the proceeding be removed to Tompkins County. In response thereto, the petitioner filed a Motion to Retain Venue in Oneida County.

3/31/08 - The Hon. James C. Tormey, J.S.C., Supreme Court, Oneida County, signed an Order which removed the MHL Art. 10 proceeding to Tompkins County, adjourned the probable cause hearing in the Art. 10 proceeding that had been scheduled to commence on March 31, 2008, and directed that OMH had authority to retain the respondent pending completion of and a determination on the adjourned probable cause hearing. The removal of the MHL Art. 10 proceeding to Tompkins County and the adjournment of the probable cause hearing were made upon the consent of the respondent and over the objection of the Attorney General's Office. (Respondent's Exhibit 10). (Upon receipt of the MHL Art. 10 proceeding in Tompkins County, it was given Index No. 2008-0918 and was assigned to Justice Elizabeth A. Garry).

7/16/08 - The Hon. Samuel D. Hester, J.S.C., Supreme Court, Oneida County, signed an Order to Remove which effectively removed the "Article 9 proceeding" under Oneida County Index No. Ca2007-000744 to Tompkins County and directed that said action be continued there together with the related Article 10 proceeding. (Upon receipt of this action in Tompkins County, it was given Index No. 2008-0887 and was assigned to Justice Elizabeth A. Garry).

9/16/08 - The Hon. Elizabeth A. Garry, J.S.C., Supreme Court, Tompkins County, signed an Order, pursuant to CPLR 9002, which documented and memorialized the decision of Justice Robert F. Julian made orally on April 2, 2007 which denied the respondent's motion to dismiss in its entirety. This Order reflects that counsel for the parties agreed to the facts set forth in the body of the Order. (Respondent's Exhibit 11). [*5]

10/09/08 - MHLS, on behalf of the respondent, filed a Notice of Appeal to the Appellate Division, Third Department, in connection with the Order signed by Justice Garry on September 16, 2008. (The Order signed by Justice Garry on September 16, 2008 and the Notice of Appeal filed in connection therewith both mistakenly reflect the index number assigned in Tompkins County for the Art 10 proceeding , rather than "Art. 9" proceeding).

2/17/09 - The respondent filed his present motion seeking leave to renew in Supreme Court, Tompkins County.

3/12/09 - The above referenced actions were reassigned to the Hon. Robert C. Mulvey, J.S.C., Supreme Court, Tompkins County, regarding all further proceedings.

Respondent's Motion for Leave to Renew Pursuant to CPLR 2221

The petitioner opposes the respondent's motion to renew arguing that the respondent has not sufficiently demonstrated compliance with the provisions of CPLR 2221 (e). Those provisions require that the motion be based upon new facts not offered on the prior motion that would change the prior determination or demonstrate that there has been a change in the law that would change the prior determination. (CPLR 2221 [e] [2]). The moving party must also show a reasonable justification for the failure to present such facts on the prior motion. (CPLR 2221 [e] [3]). The respondent's counsel asserts that the attachments to his reply affirmation, especially the email attached as Exhibit 16, constitute new facts and that judicial decisions have been issued which were not available to the respondent and Justice Julian in April of 2007. The email referred to by respondent's counsel was apparently obtained from the Attorney General's Office in 2008 through a response to discovery demands served by the respondent in the related Art. 10 proceeding.

The Court notes that the respondent has provided virtually no elaboration has to how these new facts would have changed Justice Julian's decision to deny the motion to dismiss in April of 2007 and the respondent has not specifically identified what judicial decisions rendered after April of 2007 addressed issues that were before Justice Julian and would have changed his decision. However, accepting that the email relied upon by the respondent constitutes new facts and acknowledging that the reasons for Justice Julian's decision are not contained in the record, this Court, in the exercise of its discretion, shall hereby grant the respondent leave to renew and shall address the merits of the respondent's motion to dismiss.

Respondent's Motion to Dismiss

Upon review and consideration of the papers submitted by the parties and the procedural history of the related actions set forth above, the Court has determined that the respondent's motion to dismiss should be denied in its entirety. The Court shall set forth its reasons for its determination. [*6]

First, the Court is not persuaded that the transfer of the respondent from the Attica Correctional Facility to CNYPC on February 23, 2007 was made under MHL Sec. 9.27 as alleged by the respondent. Although the Application of the Superintendent and the Notice of Status and Rights dated February 23, 2007 contained references in the headings on those documents to "Section 9.27 Mental Hygiene Law," the certificates of Dr. Gorman and Dr. Gumbula made no reference to MHL Sec. 9.27 and such certificates addressed the definition of "mental illness which is likely to result in serious harm to himself or others" under MHL 9.39 (a) which is referred to in Correction Law Sec. 402 (9). The Order signed by Justice Shaheen on February 27, 2007, which relied upon the reports to those two doctors, also contains a reference in its heading to "(Correction Law 402)." Further, it is undisputed that the respondent was transferred to CNYPC which is specifically required by the provisions of Correction Law Sec. 402 (9). Moreover, the respondent could have raised this issue in a hearing before Justice Shaheen or Justice Julian, but apparently chose not to demand a hearing. Although the respondent signed a Request For Hearing form on February 26, 2007, there is no evidence in the record that the respondent or his counsel ever demanded a hearing before either of those Justices. The Court also notes that after the respondent's sentence(s) expired on February 25, 2007, any further proceedings related to his continued need for hospitalization due to his mental illness were to be governed by the Mental Hygiene Law. (see, Correction Law Sec. 404 [1]; Harkavy v. Consilvio I, 7 NY3d 607, 614). (see also, Correction Law Sec. 402[13], effective 4/13/07).

Second, the Court does not accept the respondent's argument that the transfer of the respondent to CNYPC on February 23, 2007 was a clear violation of the decision of the Court of Appeals in Harkavy v. Consilvio I, supra. The Court of Appeals in Harkavy v. Consilvio I directed that commitment proceedings related to inmates undergoing a sentence of imprisonment, regardless of when the inmate is scheduled to be released, must be conducted pursuant to the provisions of Correction Law Section 402. Although that decision discussed the Court's preference for the pre-transfer protections afforded by the provisions of Correction Law Sec. 402 (1) and (3), the Court did not specifically preclude the transfer of an inmate nearing the end of his sentence by way of Correction Law Sec. 402 (9). Rather, the Court of Appeals recognized that such procedural safeguards could be bypassed if the psychiatric admission was sought on an emergency basis under Section 402 (9). Harkavy v. Consilvio I, supra at pages 612 and 613. Nor do the provisions of Correction Law Sec. 402 specifically preclude a transfer under 402 (9) after the commencement of a proceeding under Section 402 (1).

In this instance, the petitioner commenced a proceeding pursuant to Correction Law Sec. 402 (1) 18 days prior to the expiration date of the respondent's sentence. The record reflects, and it appears to be undisputed, that such proceeding was never completed because the physicians appointed to examine the respondent by the Order to Show Cause signed by Justice Dadd on February 7, 2007, refused or neglected to examine the respondent in accordance with said order. Faced with such circumstances and the imminent expiration of the respondent's sentence(s) of imprisonment, the petitioner chose to proceed with a transfer of the respondent pursuant to Correction Law Sec. 402 (9). In this Court's view, such circumstances were sufficient to constitute an emergency under Correction Law 402 (9). Again, the Court notes that the [*7]respondent or his counsel could have requested a hearing before Justice Shaheen or Justice Julian to explore factual issues as to whether the attendant circumstances were sufficient to constitute an emergency, however the respondent chose to file his motion to dismiss and did not demand a hearing in connection therewith.

Third, even if the transfer of the respondent to CNYPC on February 23, 2007 constituted a violation of Harkavy v. Consilvio I, such a violation does not warrant the release of the respondent. Although the decisions of the Court of Appeals in both Harkavy v. Consilvio I, supra and Harkavy v. Consilvio II, 8 NY3d 645 held that the determinations involving the involuntary commitment/hospitalization of the petitioners in each of those cases were improperly made under Mental Hygiene Law Article 9, the Court did not direct or permit the release of said petitioners, but rather directed that each petitioner be afforded an appropriate commitment hearing. Harkavy v. Consilvio I, 7 NY3d 607, 614; Harkavy v. Consilvio II, 8 NY3d 645, 652. In this instance, the Court finds the circumstances to be analogous. Should the transfer of the respondent to CNYPC on February 23, 2007 ultimately be deemed inappropriate under either Correction Law 402 (9) or Mental Hygiene Law Article 9, the petitioner should not be released but should be afforded an appropriate commitment hearing.

Fourth, the Court finds that any future commitment hearings to be had in this matter should be conducted in accordance with the provisions of Mental Hygiene Law, Article 10. The Sex Offender Management Treatment Act (SOMTA - Mental Hygiene Law, Article 10) became effective on April 13, 2007. DOCS or OMH apparently issued a notice pursuant to MHL Sec. 10.05 (b) on or about December 4, 2007, and the petitioner filed a petition against the respondent pursuant to MHL Article 10 on March 25, 2008. Said proceeding is still pending, although it does not appear that a preliminary hearing has ever been conducted. The Court's file indicates that a preliminary hearing was last scheduled to be conducted before Justice Garry in the Art.10 matter on October 16, 2008, but that hearing was adjourned and there has been no request to reschedule the hearing since the filing of the respondent's motion herein. Further, the Court of Appeals in Harkavy v. Consilvio II decided that each petitioner therein qualified as a "detained sex offender" as defined in MHL Sec 10.03 (g) (5) and fell "within the purview of the statutory scheme," even though they had been improperly committed under MHL Article 9. Harkavy v.Consilvio II, 8 NY3d 645, 652. Here, the respondent qualifies as a "detained sex offender" under MHL 10.03 (g) (5) whether he was properly committed under Correction Law 402 (9) or improperly committed under Correction Law 402 or Mental Hygiene Law Article 9.

The Court is not persuaded by the respondent's argument that the cases of State v. Randy M., 57 AD3d 1157 and People ex rel. Joseph II v. Superintendent of Southport Correctional Facility,, 59 AD3d 921 require a different result. The cases cited by the respondents dealt with inmate/petitioners who were under post-release supervision that had been imposed by DOCS at the conclusion of their sentences and were alleged to qualify as "detained sex offenders" under MHL 10.03 (g) (1). Each inmate/petitioner therein was directed to be released because his term of post-release supervision was illegally imposed by DOCS rather than his sentencing Court. Further, it does not appear that either of those inmate/petitioners was in the custody of OMH [*8]when the Art. 10 notice was given in each instance pursuant to MHL 10.05 (b). Here, it is undisputed that the respondent was in the custody of CNYPC/OMH when the notice was given pursuant to MHL 10.05 (b) in his Art. 10 proceeding. The Court finds that the type of commitment hearing to be conducted in this instance is governed by Harkavy v. Consilvio II. Moreover, the respondent's involuntary commitment proceedings commenced in Wyoming County and Oneida County are rendered moot and/or academic due to the commencement of the MHL Article 10 proceeding. (see, State of New York v. Myron W., Supreme Court, Albany County, Decision and Order dated July 15, 2008, O'Connor, J. Presiding, Index No. 2021-08).

Lastly, based upon the findings set forth above, the Court has determined that the respondent qualifies as a "detained sex offender" as defined under MHL 10.03 (g) (5) and the respondent's motion to dismiss the MHL Article 10 proceeding pending against him under Index No. 2008-0918 should be denied.

Accordingly, for the reasons set forth above, it is

ORDERED, that the respondent's motion to dismiss the actions/proceedings referred to above upon the grounds set forth in said motion is hereby denied in its entirety, and it is further

ORDERED, that proceedings under Index No. 2008-0887 in Tompkins County (formerly Oneida County Index No. CA2007-744) have been rendered moot and/or academic due to the commencement of the MHL Article 10 proceeding in Tompkins County under index No. 2008-0918.

This shall constitute the Decision and Order of the Court. No costs are awarded on the motion.

Dated:June _____, 2009______________________________

ROBERT C. MULVEY

J.S.C.