An appellate panel ruled that a defendant who stabbed his wife in 1993 should continue to be confined at Mid-Hudson Forensic Psychiatric Center in New Hampton.
An appellate panel ruled that a defendant who stabbed his wife in 1993 should continue to be confined at Mid-Hudson Forensic Psychiatric Center in New Hampton. (omh.ny.gov)

A man confined to psychiatric institutions for most of the last 20 years after repeatedly stabbing his wife is still dangerous and should remain hospitalized, despite the testimony of a psychologist who said he is harmless and no longer hostile toward the victim, a divided appellate panel has held.

The Appellate Division, Second Department, split 3-2 on a factual issue of whether the proof of Marvin P.’s mental instability met the preponderance of the evidence standard to justify his continued commitment. But the majority took the psychologist to task for her “lack of objectivity,” a comment that the perpetrator has forgiven his victim and for making an “intemperate and unprofessional” remark suggesting it is “quite normal” for New York Jews like the patient to be loud and annoying.

Matter of Marvin P., 2012-08392, centers on a man who repeatedly stabbed his wife in 1993. The victim, Susan, survived despite suffering six wounds and a punctured lung. Marvin was allowed to plead not responsible by reason of mental disease to attempted second-degree murder and institutionalized.

Records show Marvin was transferred from a secure to a nonsecure facility in 1998 and was released in 2003 with orders to stay away from Susan, at that point his ex-wife. However, he called her repeatedly and was arrested on a criminal contempt charge. Marvin was subsequently re-admitted to the secure Mid-Hudson Forensic Psychiatric Center.

Nearly two years ago, Supreme Court Justice Catherine Bartlett of Orange County held that Marvin should be released, prompting an appeal by Nassau County District Attorney Kathleen Rice and the state Office of Mental Health. Bartlett’s decision was stayed, and Marvin remained at Mid-Hudson as the appeal argued May 30, 2013 was pending.

In a decision issued Wednesday, the Second Department majority said a factual review of the evidence supports the case for continued confinement.

The majority relied on the testimony of two mental health experts who testified for the prosecution.

Those experts said that Marvin suffers from a bipolar disorder and an antisocial personality disorder, and that his mental illness manifests itself in “excessive, overzealous litigation,” the refusal to obey rules, a tendency to lie and use racial and ethnic slurs, and provocative and aggressive behavior toward other patients and staff. They concluded that Marvin remains a danger to others and himself, and one of the professionals went so far as to predict that if he were released, Marvin would again attack Susan.

The appellate panel majority, led by Justice Cheryl Chambers (See Profile), rejected the testimony of two defense experts, one of whom had been fired from Mid-Hudson for double billing and on a prior report concluded that Marvin was dangerously mentally ill, and another who claimed that the patient isn’t mentally ill.

Chambers and the majority took particular exception to the testimony of Manhattan psychologist Alison Conner, who opined that while Marvin has traits of personality disorders, he does not suffer from a mental illness.

Conner, according to the decision, found that the stabbing was an isolated episode brought about by stress-related depression that is now fully in remission. She said the patient has no animosity toward his former wife and has a “forgiving attitude toward her.”

Conner said allegations that Marvin held a pen to another patient’s throat, spit at an intern, threw water at an aide and claimed to have physically abused his first wife were either fabrications or resulted from Marvin’s attempts to defend himself, according to the decision. She said that his admission of abusing a prior wife was a false “act of chivalry,” merely to provide a basis for their divorce.

The psychologist also said that the loud behavior that Marvin exhibits is typical for someone who, like herself, is from New York and Jewish.

Chambers, along with justices Reinaldo Rivera (See Profile) and Sylvia Hinds-Radix (See Profile), said the evidence that Marvin “does not suffer from a mental illness and is not dangerous is simply not credible.” The majority castigated Conner for a “lack of objectivity” and said she “accepted every innocent explanation [Marvin] offered for his conduct,” including the conclusion that the district attorney and state are conspiring to keep the patient detained.

“In addition, some of the comments she made during her testimony alone call into question the soundness of her judgment,” Chambers wrote. “Her comment that the respondent has forgiven Susan, despite the fact that she was the one stabbed, was, to say the least, odd. It reflects again that she has adopted the respondent’s point of view without giving any consideration to how he has manipulated the facts to portray himself as a victim.”

The court said Conner’s “remark that the respondent’s behavior simply reflects that he is a typical ‘New York Jew’ was intemperate and unprofessional,” adding: “A misguided stereotype is no explanation for atypical behavior.”

Conner, in an interview, noted that the only judge who actually heard her testimony, Bartlett, found her credible and ordered Marvin’s release based on her findings. The psychologist criticized the Second Department for a decision that she said will unjustly keep an infirm 74-year-old man locked up for the rest of his life.

“What is going on here is a real travesty of justice,” Conner said. “It is very sad. But they apparently needed to smear me in order to substantiate their opinion, for which they otherwise had no basis. It was just a convenient way for them to overturn the decision.”

Conner said she took the matter as a “charity case” because she “felt a moral obligation to assist” a man she believes is inappropriately detained. She said her remark about New York Jews was perhaps “colorful,” but said she stands by the comment, which she said needs to be viewed in the context in which it was made.

“I am a New York Jew,” Conner said. “Marvin is a New York Jew, and we understand each other from a cultural perspective. Marvin comes from a background where people are very expressive. He can be loud, but he is not threatening in his loudness. Just loud.”

Conner said the Second Department opinion distorts the record below.

Justices Peter Skelos (See Profile) and Leonard Austin (See Profile) dissented in an opinion by Skelos. They said the proof showed that Marvin is indeed mentally ill, but not that he suffers from a dangerous disorder justifying continued confinement in a secure institution.

Skelos said that while Marvin’s underlying crime was “extremely violent,” it occurred two decades ago and was never repeated, even when the patient was in a nonsecure facility or free in the community.

“As established by the record and as amply recited in the majority opinion, the respondent’s mental illness manifests itself in excessive and overzealous litigiousness, annoying behaviors, verbal abuse, and socially offensive behavior such as the use of racial or ethnic epithets,” Skelos wrote. “This conduct does not demonstrate that respondent poses a physical threat to others.”

Assistant Nassau County district attorneys Tammy Smiley and Jacqueline Rosenblum appeared for the prosecution. Assistant attorneys general Cecelia Chang and Patrick Walsh represented the Office of Mental Health. Marvin was pro se.

Shams Tarek, spokesman for the Nassau County District Attorney’s office, said the ruling is significant “because we were successful in reversing an order directing the release of a dangerously-mentally-ill person from a secure psychiatric hospital into the community.”

He also said Marvin was uncooperative and the ruling “makes clear that an insanity acquittee’s refusal to submit to a psychiatric examination will not automatically render the proof of his dangerousness insufficient.”