Matter of Rakowitz v Consilvio

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[*1] Matter of Rakowitz v Consilvio 2005 NY Slip Op 50310(U) Decided on February 8, 2005 Supreme Court, New York County Mills, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 8, 2005
Supreme Court, New York County

In the Matter of the Retention of Daniel Rakowitz, Petitioner,


Eilleen Consilvio, DIRECTOR, Kirby Forensic Psychiatric Center, Respondent.


Donna M. Mills, J.

The question before this court is whether the respondent, Kirby Forensic Psychiatric Center has met its burden of proving by a preponderance of the credible evidence that the petitioner Daniel Rakowitz suffers from a "dangerous mental disorder" as defined in Criminal Procedure Law (CPL) § 330.20 [1] [c]), and should be retained in a secure facility.


Petitioner was arrested, indicted and tried for the murder and dismemberment of Monica Beerle on August 19, 1989. In 1991, the criminal jury trial concluded with a verdict of not responsible by reason of mental disease or defect. Thereafter, at a hearing on his mental condition, the court found that respondent had a dangerous mental disorder and accordingly committed him to the Kirby facility, a secure State mental hospital. Since petitioner's initial commitment he has continuously been found to be suffering from a dangerous mental disorder and retained at Kirby pursuant to the relevant subdivisions of C.P.L. § 330.20.

Pursuant to C.P.L. § 330.20, petitioner's retention periodically comes up for judicial review. The most recent review and rehearing proceeding was assigned to this Court, which conducted a jury trial between June 14, 2004 and July 20, 2004. Petitioner was represented by Mental Hygiene Legal Services at the rehearing and sought release or a transfer to a non-secure facility. The Attorney General appeared on behalf of respondent Eilleen Consilvio, Director of Kirby. Pursuant to statute, the District Attorney also appeared and presented evidence in support of respondent's application (see CPL 330.20[8]). The State contended that the petitioner continues to suffer from a dangerous mental disorder as that term is defined in CPL § 330.20, and that if released or transferred to a non-secure facility, he would constitute a threat to society.

By a special verdict questionnaire, the jury in the instant action, unanimously found that petitioner currently suffers from a mental illness which requires care and treatment as an inpatient in a psychiatric center, that such care and treatment is essential to his welfare, and that his judgment is so impaired that he is unable to [*2]understand the need for such care and treatment. However, by a five to one vote, the jury found that petitioner does not suffer from a dangerous mental disorder. Prior to the hearing, this Court had informed the parties that the jury's finding, on the issue of whether petitioner suffered from a dangerous mental disorder, was merely advisory, and, that petitioner did not have a right to a jury determination on the issue of whether he suffers from a dangerous mental disorder (Matter of Watkins R. v Berry, 276 AD2d 492, 493 [2d Dept 2000]). Therefore, the issue of dangerousness must be independently decided by this Court. If this Court finds that Daniel Rakowitz is still suffering from a dangerous mental disorder, it must order retention in a secure facility. Should this court find that he is not dangerous, he must be transferred to a non-secure facility pursuant to CPL § 330.20(11).


CPL § 330.20 provides for the confinement of an insanity acquittee, such as petitioner, who has been found not guilty of a crime by reason of mental disease or defect pursuant to CPL 220.15, to either a secure or non-secure mental health facility. The nature of the facility depends on whether the defendant is found at the initial commitment hearing to be suffering from a dangerous mental disorder (CPL 330.20 [1][c]) or is mentally ill and in need of further institutional treatment (CPL 330.20[1][d]).

CPL § 330.20 [1] [c]) provides that

"'Dangerous mental disorder' means: (I) that a defendant currently

suffers from a 'mental illness' as that term is defined in subdivision

twenty of section 1.03 of the Mental Hygiene Law, and (ii) that because of such condition he currently constitutes a physical danger to himself

or others." CPL § 330.20 [1] [d], in relevant part, defines a person who is "mentally ill" as one who"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 judgment is so impaired that he is unable to understand the need for such care and treatment..."

Since the trial jury has already determined that the petitioner is mentally ill, this Court must determine whether he suffers from a dangerous mental disorder. It should be noted, however, that a finding that an individual is "mentally ill" as defined under CPL § 330.20

[1] [d], contemplates a degree of dangerousness that satisfies due process concerns (see In the Matter of David B, 97 NY2d 267, 276 [2002]).

The Attorney General and the District Attorney's Office both argue that this Court should grant their application for a retention order since the jury's determination that the petitioner is not dangerous, cannot be supported under any fair interpretation of the [*3]evidence. In determining whether an insanity acquittee constitutes a current physical danger to himself or others and is therefore in need of secure retention, the courts may consider the nature and recency of the defendant's criminal act; evidence of a history of relapses into violent behavior; substance abuse or dangerous activities upon release or termination of psychiatric treatment; or evidence establishing that continued medication is necessary to control the defendant's violent tendencies and that the defendant is not likely to comply with prescribed medication either because of a prior history of noncompliance or because of threats of future noncompliance (Matter of George L., 85 NY2d 295, 307-308 [1995]).

Petitioner's current treating doctors did not testify. Instead, the former Director of Psychiatry at Kirby, Dr. James Hicks, Acting Director Dr. Jason Herschberger and psychologists, Dr Cynthia Scheuer and Dr. Catherine Mortiere testified for the respondents. The testimony at this hearing, and previous retention hearings for that matter, revealed that since his institutionalization in New York, petitioner has been diagnosed with several mental disorders. Although there are differences in the diagnoses, all of the psychiatrists who have examined the petitioner agree that he has a substance abuse disorder and an antisocial personality disorder. That there are differences in the specific diagnoses are of no legal consequence.

The testimony at the hearing before this Court, revealed that throughout his stay at Kirby, petitioner has demonstrated his preoccupations with killings, mutilations, and other morbid subjects in his statements and collection of disturbing written materials. According to Dr. Hershberger, even if they are not all true, these accounts reflect defendant's enjoyment in bragging about violent behavior, and are symptomatic of psychosis or personality disorders, revealing continuing violent preoccupations which put him at higher risk for future dangerousness.

The record is clear that in the past when petitioner has been released from mental institutions, he relapsed. He became aggressive, delusional and dangerous, and in the case of Monica Beerle, a jury determined beyond a reasonable doubt, that he murdered her. Petitioner simply does not appreciate his need for psychiatric care. The record is replete with petitioner's denials of mental illness. "If the court concludes that a defendant will resort to drugs, alcohol, and dangerous behavior upon release from a controlled environment, it can find that the defendant is currently suffering from a dangerous mental disorder since he will inevitably resort to assaultive or other dangerous behavior upon his release from a controlled environment." See Matter of Francis S., 206 AD2d 4, 20 [1st Dept.1994]).

Petitioner clearly has not taken full responsibility for the death of Monika Beerle. During his first videotaped statement to law enforcement investigating Ms. Beerle's death, he denied any involvement, yet a mere two days later, he admitted in an organized and gruesome detail how he alone killed and skeletonized Ms. Beerle. Petitioner has since denied committing the murder. Instead, he has given multiple, inconsistent versions about his role in the crime ranging from not being present at all, to being a passive witness, and lastly to actively trying to prevent the murder. Despite his recent protestations of innocence, his inculpatory statement given to the police was consistent with the forensic anthropological findings of the victim. Furthermore, to illustrate the petitioner's delusional thinking, Dr. Scheuer testified that the petitioner has spoken repeatedly of his innocence and unjust hospitalization.

The fact that the petitioner in the instant action still lacks insight about his illness, and [*4]refuses to take responsibility for the killing of Monica Beerle (despite the mountain of evidence against him), is a strong indicator to this Court that he may still be a danger to himself or others. This Court finds that the most significant factors in assessing petitioner's future physical dangerousness, is his current mental illness, his past history of violence, and his continuous failure to assume responsibility for the heinous crime for which a jury found beyond a reasonable doubt, that he had committed. Moreover, Dr. Mortiere testified that petitioner has not engaged in any meaningful treatment for substance abuse while being hospitalized in Kirby. He remains untreated and refuses to accept treatment for his severe character pathologies.

Petitioner would like this Court, to not place a great deal of emphasis on the underlying criminal act for which he is currently involuntarily hospitalized. Although the underlying act, the murder of Ms. Beerle was committed more than fifteen years ago, the remoteness in time of this crime does not, in and of itself, establish that he is no longer a danger to himself or others. The testimony and voluminous medical records indicate that petitioner's tendency toward harm and violence was exhibited at an early age and continued into adulthood. Petitioner's counsel correctly points out, and respondent's would concede, that petitioner has not engaged in any noted acts of violence since his involuntary incarceration at Kirby in 1991. However, petitioner has been confined to the most structured, secure type of psychiatric facility available for an insanity acquittee, and has not been able to act as he wished ( In re Application of Richard H. against Eilleen Consilvio, 6 AD3d 7[1st Dept. 2004] citing Matter of Francis S., 87 NY2d 554, 561 [1995]). The fact that a patient's condition is stabilized in a hospital setting during continuous treatment does not inevitably lead to the conclusion that the patient will function normally in a less structured and secure environment. This Court believes that the petitioner's lack of violence while institutionalized, is not dispositive on the sole issue of whether he is a danger, but is due directly to his forced abstinence from illicit psychoactive substances in a structured and secure facility. If he were to recommence using illicit psychoactive drugs, it is quite apparent that he would be susceptible to a relapse. A setting with less restrictive contraband measures than at Kirby, would allow him the opportunity to indulge in the use of illegal mind altering drugs. Moreover, the doctors testifying on behalf of the respondents all agreed, that although petitioner has not exhibited violent behavior, his improvement within the confines of a secure psychiatric institution does not establish that he no longer poses a danger to himself or to others should he be placed in an unsecured facility (see Matter of Francis S., supra).

This court concurs with the respondents, in that there is no fair interpretation of the evidence which supports the determination that petitioner does not have a dangerous mental disorder. Upon the Court's review of the record, including the evidence elicited at the hearing, I find that the Commissioner established that petitioner suffers from a "dangerous mental disorder" as defined by CPL 330.20[1][c]), (see Matter of George L., supra). The testimony of the doctors (including Dr. Dolores Nicole who testified on his behalf), in conjunction with petitioner's clinical records and his own testimony support a determination that he does have a dangerous mental disorder. Further, petitioner's history is rife with incidents of dangerous behavior, including the attempted murder of his father, unlawful imprisonment of a teenage wife, and numerous incidents of assaultive behavior which occurred before the instant offense of which he was found not guilty by reason of insanity.

Nothing in petitioner's case suggests that he is not dangerous. Therefore, this Court [*5]concludes that petitioner Daniel Rakowitz has continued to be, and now remains, a current physical danger to himself and others. There is no rational interpretation of the evidence presented, which would support the finding that the petitioner is not in need of involuntary hospitalization in a secure facility, to insure that he will not repeat his former behavior. Outside of a secure facility, petitioner poses an elopement risk given his lack of both insight into his mental illness, his lack of motivation to receive treatment and stated desire to return to Texas. There is no reasonable expectation that petitioner will engage in treatment if he is placed in a less secure setting or in the community. For these reasons he will remain involuntarily in a secure facility.

Accordingly, petitioner's application for release and in the alternative, transfer to a non-secure hospital, are denied. The application of the respondent for an order of retention is granted.

This constitutes the decision and order of the Court.

Dated:ENTER: ________________


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