Matter of Cindy R.
Annotate this CaseDecided on August 20, 2012
Supreme Court, Queens County
In the Matter of Cindy R., Writ of Habeas Corpus.
500669/12
State of New York-Office of the Attorney General
Attorney for the Petitioner
120 Broadway,
New York, NY 10271
By: Jose L. Velez, Esq., of counsel
Mental Hygiene Legal Service
Attorney for the Respondent
80-45 Winchester Boulevard
79-01 Broadway, C-11, 14J
Queens Village, NY 11427
By: Robert Sepanen, Esq., of counsel
Martin J. Schulman, J.
At the request of the parties at the conclusion of the hearing on thisWrit of Habeus Corpus for the immediate release of the petitioner from Creedmoor Psychiatric Center ("Creedmoor"), the court expounds upon its June 5, 2012, oral ruling discharging the petitioner.
The Writ of Habeas Corpus at bar presents extraordinary circumstances of such magnitude that the petitioner patient's illegal retention and violation of her constitutional right to trial by a jury, her right to due process, and her right to counsel require the Writto be determined on a constitutional basis instead of following appellate decisions which strictly apply the criteria set forth in the codification of Habeas Corpus under the Mental Hygiene Law (see, Mental Hygiene Law §33.15).
The only witness to testify at the hearing on the Writ was Dr. June Mossop, petitioner's treating psychiatrist at Queens Hospital Center ("Hospital"), who testified that the petitioner was first admitted as a patient to the Hospital on January 6, 2012. Thereafter, a retention hearing was conducted by the court on March 15, 2012; the court ordered that the petitioner be retained [*2]involuntarily for a six (6) month period.
On April 9, 2012, the petitioner gave the Hospital notice that she wished to have, pursuant to Mental Hygiene Law § 9.35, "a rehearing and a review of the [March 15, 2012 retention] proceedings". The statute mandates that a jury "try the question of the mental illness and the need for the retention of the patient", unless that right is waived by the patient or the person applying on the patient's behalf for the review.
Two days later, on April 11, 2012, at approximately 9:00 A.M., Mossop converted petitioner's status from involuntary to voluntary without her attorney, Mental Hygiene Legal Services ("MHLS"), being present or notified. The reason provided by Dr. Mossop for the conversion was that since the petitioner "wanted to be given a try to live in the community...changing her status to voluntary would....facilitate an interview with housing". (Transcript at pg. 8). Dr. Mossop testified that petitioner was " agreeable", that "she didn't argue", that "she didn't say no", that "she didn't ....say she wanted to be there on a voluntary status:.."but [that} she was "requesting a trial to be in the community". ( Transcript at pgs 8-9).
However, later that day at 12:30 P.M., Dr. Massop converted the petitioner's status back to involuntary. Fourteen (14) days later on April 25, 2012, the petitioner was transferred to Creedmoor, a long-term state operated psychiatric institution. The Hospital never contacted MHLS prior to the petitioner's transfer.
There was no testimony pertaining to petitioner's mental illness, or whether she was a danger to herself or to others. The Assistant Attorney General representing Creedmore did not cross-examine Dr. Mossop, or refer to petitioner's medical record.
Petitioner's counsel argued that not only was petitioner's liberty unlawfully deprived, the petitioner was deprived of her right to counsel at every state of the change in her status. Her attorney maintained that the legal effect of converting petitioner's status from involuntary to voluntary back to involuntary extinguished
petition's right to a rehearing and review of the March 15, 2012 retention order, without the knowledge and consent of her attorney at MHLS. Counsel also accused the Hospital of not complying with NYCRR § 517.4 by failing to first discuss with the petitioner the transfer to Creedmoor, by failing to provide three (3) days prior notice of the transfer to Creedmoor, and by failing to give MHLS the opportunity to appeal the transfer decision.
The Assistant Attorney General representing Creedmore argued that the nature of this proceeding as a Writ of Habeas Corpus required this court to follow Mental Hygiene Law § 33.15 and
"examine the facts concerning the person's alleged mental
disability and detention. The evidence shall include the clinical records of the patient and medical or other testimony as required
by the court. The court may review the admission and
retention of the person pursuant to the provisions of this chapter.
The court shall discharge the person so retained if it finds
that he is not mentally disabled or that he is in need of further
retention for in-patient care and treatment". Metal Hygiene Law §
33.15(b).
Thus, regardless of whether there were "procedural shortcomings...[which occurred] at Queens Hospital Center", the court, counsel for the State maintained, must evaluate the extent of the petitioner's mental illness and whether the petitioner can be safely discharged into the [*3]community before sustaining or denying the Writ of Habeas Corpus. (Transcript at Pages 15-16; State ex rel Karur ex. rel. Karon G. v Carmichael, 41 AD3d 349, 350; People ex rel. Noel B. v Jones, 239 AD2d 809; see, also, State of NY ex rel. Harkavy v Consilvio 7 NY3d 607, 614 )
Here, however, Mental Hygiene Law § 33.15(b) is not applicable, since the State failed to meet its evidentiary burden that petitioner's detention was lawful by not proffering any testimonial and documentary evidence that the petitioner suffers from a serious mental illness and that she is a danger to herself and to others. Furthermore, there was not a scintilla of evidence that the procedural safeguards established by the Mental Health Law should be disregarded or bypassed. A rehearing and review under Metal Hygiene Law § 9.35 allows a patient to place before a jury the basic liberty issue of whether he or she continue to be confined in a psychiatric facility. (See, Matter of Jamie R. v Cosilvio, 6NY3d 138, 149; Matter of Robert C. v Wach, 167 Misc 3d 677, 680-681).
"The right to invoke habeas corpus, the historic writ of liberty', the greatest of all writs', is so primary and fundamental that it must take precedence over considerations of procedural orderliness and conformity, (see U. S. Const., Art. I § 9"; NY Const., Art. I, § 4[remaining citations omitted]; People v Schildhaus, 8 NY2d 33, 336).
Thus, when the fundamental constitutional rights of a psychiatric patient of the right to due process, the right to counsel and the right to a jury trial are violated, and the patient remains illegally and civilly confined, the Court cannot condone such egregious conduct and instead has the obligation to grant habeas corpus relief and release the patient. (See, generally, Addington v Texas, 441 U.S. 418; See, Namor v Lopez, 143 Misc 2d 469, 473).
Accordingly, the court conditionally sustains the Writ, and directs that the petitioner be safely discharged within three (3) days of this order. (See, Namor v Lopez, supra).
The foregoing constitutes the decision and order of this court.
Dated: August 20, 2012________________________
J. S. C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
