Cases handed down on:October 18, 2018
By Renwick, J.P., Richter, Manzanet-Daniels, Tom, Gesmer, JJ.7062., 7062A. In re New York State Office of Mental Health, Petitioner-Respondent, v. Marco G., Respondent-Appellant.- – - – - Eric Gonzalez, Kings County District Attorney, Nonparty Respondent.Respondent Marco G. appeals from the amended order of the Supreme Court, New York County (Lisa A. Sokoloff, J.), entered on or about January 23, 2018, which denied his petition pursuant to Mental Hygiene Law §9.35 and CPL 330.20(16) for a jury rehearing and review, and from the order of the same court (Kelly O’Neill Levy, J.), entered October 5, 2017, recommitting respondent from non-secure confinement to confinement in a secure facility.Marvin Bernstein, Mental Hygiene Legal Service, New York (Diane Goldstein Temkin and Sadie Zea Ishee of counsel), for appellant.Barbara D. Underwood, Attorney General, New York (Linda Fang and Steven C. Wu of counsel), for New York State Office of Mental Health, respondent. Eric Gonzalez, District Attorney, Brooklyn (Avshalom Yotam, Leonard Joblove, Ann Bordley and David C. Kelly of counsel) for Eric Gonzalez, respondent.GESMER, J.After a criminal defendant is found not responsible by reason of mental disease or defect, the court must hold an initial hearing, and then successive hearings, to determine if the defendant has a dangerous mental disorder or is mentally ill, and must, therefore, be committed to the custody of the Commissioner of Mental Health (CPL 330.20). A defendant who is dissatisfied with an order resulting from such a hearing may request, as of right, a rehearing and review de novo before a jury (CPL 330.20[16]; Mental Hygiene Law §9.35; Matter of Norman D., 3 NY3d 150, 155 [2004]). In this case, respondent Marco G. (defendant) made such a request and the motion court denied it, wrongfully. The Office of Mental Health (OMH) and the District Attorney argue that we should not consider the merits of defendant’s appeal because defendant has no right to appeal under CPL 330.20. We reject that argument. The Court of Appeals has held that retention orders affect a “basic liberty issue” (Matter of Jamie R. v. Consilvio, 6 NY3d 138, 142 [2006]). Consequently, the order being appealed from affects a “substantial right” and is properly before us as of right under CPLR 5701(a)(2)(v). Accordingly, we consider the merits of the appeal and reverse the trial court.BackgroundIn 1998, after a nonjury trial for multiple sex offenses and attempted assault, defendant was found not responsible by reason of mental disease or defect. As is required by statute, the court then ordered an examination of defendant to evaluate his mental condition (see CPL 330.20[2], [4], and [6]). After receiving a report, the court held a hearing pursuant to CPL 330.20(6) and found that defendant suffered from a “dangerous mental disorder.”1 As a result of this finding, defendant was committed to the custody of the Commissioner of Mental Health for confinement in a secure facility for a period of six months and 2 was committed to Kirby Forensic Psychiatric Center, a secure facility operated by OMH.After his initial commitment, the court held the required periodic hearings on defendant’s mental condition. After a hearing in 2013, Supreme Court, New York County determined that defendant was “mentally ill” but no longer suffered from a “dangerous mental disorder.” Based on that, defendant was transferred from Kirby Psychiatric Center to Manhattan Psychiatric Center (MPC), a non-secure facility (see CPL 330.20[11]).On or about November 10, 2015, OMH applied, under CPL 330.20(14), for a recommitment order, seeking a determination that defendant had a dangerous mental disorder and should be confined in a secure facility for a period of six months. OMH supported its application with an updated forensic report, which in return referred to alleged incidents of misconduct by defendant.Supreme Court held a nine day hearing over a span of approximately seven months on OMH’s application, and issued its decision on September 29, 2017. At the hearing, defendant’s expert testified, inter alia, “[W]e are really doing the hearing only about, does [defendant] stay in a civil hospital or is he going to the maximum security.” During summation, defendant’s counsel stated, inter alia, “[Defendant is] locked up. We are not releasing him to the community… . He’s not going into the community. He is at Manhattan Psych… .He’s staying in a locked facility… . [Defendant] is dangerous enough to be held in MPC, granted, but not to be sent to a secure facility… .” In its decision, Supreme Court, New York County, found that OMH had established that defendant suffered from a dangerous mental disorder in that he had a mental illness and a level of dangerousness to himself or others which warranted secure confinement. Therefore, it ordered that he be recommitted to a secure facility for a term of six months.
