People v Mooney

[*1] People v Mooney 2008 NY Slip Op 51689(U) [20 Misc 3d 1131(A)] Decided on August 4, 2008 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 4, 2008
Supreme Court, Bronx County

The People of the State of New York,

against

Susan Mooney, Defendant.



1375-01



Robert Reno, Esq.

Attorney for Defendant

Marvin Ray Raskin, Esq.

Attorney for Defendant

Mark Rosenzweig, Esq.

New York State Attorney General's Office

ADA Daniel Kraft

Bronx County District Attorney's Office

Richard Lee Price, J.

The defendant is currently retained at Rockland Psychiatric Center, a non-secure facility of the New York State Office of Mental Health, by reason of a previously issued retention order, having been found not responsible of murder by reason of mental illness on November 14, 2002. The Commissioner of the New York State Office of Mental Health moves for a subsequent retention order pursuant to CPL 330.20. The defendant, who has Stage IV breast cancer, opposes the application and seeks an order releasing her from the facility. A retention hearing was held before this Court on April 28, 2008, April 29, 2008, and May 1, 2008. For the reason's which follow, the Commissioner's petition for a subsequent retention order is denied.

Findings of Fact

The relevant facts are as follows. The defendant was tried before this Court, without a jury, upon her indictment for murder in the second degree (PL 125.25[1]), and related charges, arising out of the death of her seven-month old child. The tragedy occurred during the course of an episode of the defendant's post-partum depression and included psychotic features. On [*2]November 14, 2002, this Court found the defendant not responsible by reason of mental disease or defect pursuant to CPL 330.10(2)]. On the same date, the court issued an examination order, committing the defendant to a secure facility for the purpose of conducting a psychiatric examination to determine whether the defendant had a dangerous mental disorder, or if she did not have a dangerous mental disorder, whether she was mentally ill.

On November 15, 2002, the defendant was admitted to Mid-Hudson Forensic Psychiatric Center, a secure facility, for the purpose of examination. On April 29, 2003, following a hearing, the Court issued an initial Commitment Order, finding the defendant to have a "dangerous mental disorder" as that term is defined in CPL 330.20[1][c]), and directing that she be committed to a secure facility designated by the Commissioner for a period of six months.

The Commissioner applied for a First Retention Order on September 29, 2003, and on October 29, 2003, hearings were commenced to determine whether the defendant should be retained for an additional period of one year. On December 11, 2003, the Court issued an Interim Commitment Order, continuing the prior April 29, 2003 Commitment Order. On September 24, 2004, the Court issued a First Retention Order, finding that the defendant continued to have a "dangerous mental disorder," and directing that she be committed to a secure facility maintained by the Commissioner for a period not to exceed one year from October 29, 2003.

On October 13, 2004, the Commissioner applied for a Second Retention Order. On November 17, 2004, based upon the Commissioner's application, and with the concurrence of the District Attorney of Bronx County and all other interested parties, this Court issued a Transfer Order and a Second Retention Order, finding that the defendant did not have a dangerous mental disorder, but suffered from a mental illness as that term is defined in CPL 330.20 (1)(d) and that her clinical condition warranted her transfer from a secure facility to a non-secure facility, and authorizing the Commissioner to continue custody of the defendant for care and treatment for a period not to exceed two years from the expiration of the period set forth in the First Retention Order. Pursuant to these orders, in December 2004, the defendant was transferred from Mid-Hudson Forensic Psychiatric Center, a secure facility, to Middletown Psychiatric Center, a non secure facility. On March 26, 2006, the defendant was transferred to Rockland Psychiatric Center when Middletown Psychiatric Center was closed.

On October 23. 2006. the Commissioner made an application for a Subsequent Retention Order. During the course of the retention hearing, the Court heard the expert testimony of Dr. Mary Ann Butler, called by the New York State Attorney General's Office, Dr. Stuart Kirschner, called by the Bronx District Attorney's Office, and Dr. Dominic Ferro, called by the defendant.

Dr. Mary Ann Butler, a psychiatrist at Rockland County Psychiatric Center, testified that the defendant came into her unit in September 2006. Dr. Butler stated that the defendant suffered from bipolar disorder and was currently receiving medications to control her symptoms, as well as individual and group therapy. Dr. Butler opined that the defendant's retention in a psychiatric hospital was necessary to prepare her for a safe and stable transition back into the community and that she may be a danger to herself if she were discharged from the hospital (H:32). Dr. Butler conceded, however, that the only indication of the defendant's "suicidal ideation" was that she had considered discontinuing chemotherapy at one point (H:67). In Dr. Butler's opinion, the defendant's insight into her mental condition was "superficial," she was detached from strong emotions, and her judgment was limited (H:29). Dr. Butler acknowledged that the defendant had [*3]been compliant with taking medication since her arrest in 2001, had shown steady progress during the past six and a half years, and had not exhibited any hallucinations or delusions during that period (H:44).

Dr. Butler conceded that while Middletown Psychiatric Center had recommended that the defendant be granted escorted off-ground privileges in December 2005, almost two and a half years ago, she was still not receiving these privileges at Rockland Psychiatric Center despite her steady progress and the absence of any deterioration in her mental condition. It was not until January 10, 2008, almost two years after defendant's admission to Rockland Psychiatric Center, that the treatment team recommended that the defendant receive escorted off-ground privileges. Although the forensic team agreed with the recommendation, the defendant was still without these privileges on April 28, 2008, the date of Dr. Butler's hearing testimony, more than two years after her admission to Rockland Psychiatric Center. Dr. Butler did not know whether the request for escorted off-ground privileges had ever been submitted to the Division of Forensic Services in Albany for approval, and admitted that the application was sent to the "wrong court" (H:62).

Dr. Butler acknowledged that the defendant currently suffers from life-threatening Stage IV breast cancer [FN1] that has metastasized to her lungs. Although the defendant has not been granted escorted off-ground privileges, when taken off grounds on more than 85 occasions to receive chemotherapy, she always behaved appropriately (H:69). Dr. Butler acknowledged that the defendant had never "decompensated" during her hospitalization, despite significant stressors including the diagnosis of Stage IV breast cancer, a mastectomy, and the death of both parents (H:83).

Dr. Stuart Kirschner, a psychologist at John Jay College of Criminal Justice, testified that the defendant suffered from a chronic mental illness, i.e., bipolar disorder, and would probably need mood-stabilizing medications for the rest of her life (H:174). Dr. Kirschner concurred with Dr. Butler's opinion that the defendant may present a danger to herself if released from the facility (H:180). He acknowledged that the defendant had "dramatically improved over the years" and that her mood has stabilized and she is no longer clinically depressed, that she understands she needs medication and has been compliant with taking medication (H:186). Dr. Kirschner opined that the defendant should be granted unescorted off-ground furloughs to reintegrate herself into the community, but that outright release would be premature at this time (H:186). He acknowledged that had the defendant been granted escorted off-ground privileges in 2006, which had been recommended in December of 2005, followed by unescorted off-ground privileges in 2007, it would be easier to assess whether she was ready to be released, and that there was no clinical reason why the treatment team had not proceeded in that manner (H:208-209).

Dr. Dominic Ferro, the Court-appointed psychiatrist, examined the defendant on November 30, 2007, approximately six months before the hearing. Dr. Ferro opined that the defendant was no longer mentally ill as defined by CPL 330.20. He stated that the defendant had [*4]bipolar disorder, which was in remission, and that she did not require inpatient treatment (H: 281). He testified further that the defendant had an "excellent understanding of her mental illness" (H: 297). His review of the Rockland Psychiatric Center Records reflected that the defendant had been an active participant in all aspects of her treatment, including numerous groups, and fully compliant with taking her medication. Dr. Ferro opined that the defendant did not present a danger to herself or others, did not need in-patient level of care, and that her retention in a psychiatric institution was not necessary in order to prepare her for a safe and stable transition back into the community.

Conclusions of Law

At a hearing on an application for retention, "... the Commissioner must establish to the satisfaction of the court that the defendant has a mental disorder or is mentally ill" (CPL 330.20[9]). In the case at bar, in December 2004, the defendant was previously found to no longer have a dangerous mental disorder and was transferred from a secure hospital (Mid-Hudson Forensic Psychiatric Center) to a civil hospital (Middletown Psychiatric Center). Thus, the Commissioner has the burden of proving the defendant is currently mentally ill, warranting her further confinement in a civil hospital.

CPL 330.20(1)(d) defines that standard as follows:

(d) "Mentally ill" 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 judgment is so impaired that he is unable to understand the need for such care and treatment (emphasis added).

Under this provision, 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 her judgment is so impaired that she cannot understand that need for inpatient treatment. Moreover, the Court of Appeals has further held:

Both mental illness and dangerousness are necessary elements of any commitment or retention of an insanity acquitee (see Jones v United States, 463 US 354 [1983]). Neither a showing of mental illness alone, nor dangerousness alone, will satisfy the requirements of due process when an individual's right to liberty is at stake (see Foucha v Louisiana, 504 US 71 [1992]). Indeed, all parties now agree that there is a constitutionally required minimum level of dangerousness to oneself or others that must be shown before an insanity acquitee may be retained in a non-secure facility, and 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.

(Matter of David B., 97 NY2d 267 at 276 [2002]).

In the case at bar, the hearing evidence does not support a finding that the defendant suffers from a mental illness for which care and treatment as a patient in an in-patient psychiatric center is essential to her welfare. To the contrary, the expert testimony established that the defendant's psychiatric condition, i.e., her bipolar disorder, is in remission and that she has been fully compliant with taking the medications necessary to control her condition.

The only remaining basis for permitting further retention of the defendant is "the need to [*5]prepare for a safe and stable transition from non-secure commitment to release" (Matter of David B, supra, 97 NY2d at 279). In this regard, the Court rejects Dr. Butler's testimony that the defendant should be retained for the purpose of transitioning her back to the community. 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 into the community. Indeed, her discharge planning has been nonexistent. The People's own expert, Dr. Kirschner, 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 preponderance of the evidence that the defendant should be retained for the purpose of preparing her for a transition back to the community (see Matter of David B., supra, at 179).

In sum, it is the finding of this Court, based upon the evidence presented at the hearing, that the defendant does not have a dangerous mental disorder as that term is defined in paragraph [c] of subdivision one of CPL 330.20, and is no longer mentally ill as that term is defined in paragraph [d] of subdivision one of CPL 330.20.

Finally, it should be noted that a Release Order will not terminate the Commissioner's responsibility for, or supervision over, the defendant. It simply terminates the defendant's in-patient status (CPL 330.20[1][m]). Notably, a Release Order must be accompanied by an Order of Conditions (CPL 330.20[12]), with which the defendant must comply for a minimum of five years, renewable for another five years. Thus, the defendant will still be subject to years of supervision, notwithstanding her release from the facility. Furthermore, a violation of the Order of Conditions will subject the defendant to prompt recommitment to the custody of the Commissioner (CPL 330.20[14]).

Accordingly, the Commissioner's application for a Subsequent Retention Order is hereby denied, and the defendant's application for a Release Order is granted, with a 30-day stay to permit Rockland Psychiatric Center an opportunity to prepare an immediate discharge plan which will be incorporated into the statutorily mandated Order of Conditions with which the defendant must comply. The parties are directed to submit proposed conditions governing the defendant's release.

This constitutes the Decision and Order of the Court.

Dated:Bronx, New York

August 4, 2008

E N T E R

_________________________

Richard Lee Price, J.S.C. Footnotes

Footnote 1:The defendant was diagnosed with Stage IV breast Cancer in April 2001, while still incarcerated at Rikers Island. She underwent a radical mastectomy, radiation therapy and chemotherapy, and treatment is still ongoing.