Preview:

[*1]


Decided on April 29, 2009
Supreme Court, Queens County

1346/1990
The defendant was represented by Mental Hygiene Legal Services, by Lawrence Newman, Esq. The People were represented by Assistant District Attorney Michael Kavanagh of the Queens County District Attorney's Office. The State was represented by Edward J. Curtis, Jr. of the New York State Attorney General's Office.
William M. Erlbaum, J.
On February 25, 1990, the defendant, D.I.I., beat his mother to death. After being indicted for two counts of Murder in the Second Degree, on February 5, 1991 the defendant entered a plea of not responsible by reason of mental disease or defect (see, CPL 220.15). The defendant was remanded to the custody of the State Commissioner of Mental Health, and in February of 1991, he was admitted to Mid-Hudson Forensic Psychiatric Center pursuant to CPL 330.20. A commitment order, pursuant to CPL 330.20[6], was issued on May 20, 1991. The defendant remained at Mid-Hudson until he was transferred to Creedmoor Psychiatric Center in July of 1992. Since the defendant has been in the custody of the Commissioner, several orders of retention (see, CPL
330.20[8] and [9]) have issued [FN1]. The defendant is currently still a patient, and resident, of Creedmoor.
The Commissioner filed an application, dated September 25, [*2]2006 for a subsequent retention order.[FN2] The defendant was opposed to retention, was seeking his conditional release [FN3], and this case was adjourned many, many times while the parties involved [FN4] attempted to work out a settlement as to this issue.[FN5] However, the parties were unable to reach a compromise. [*3]Therefore, the Court conducted the instant retention hearing (see, CPL 330.20[9]). The hearing was conducted over several dates, September 3, 2008, September 10, 2008, December 12, 2008, January 12, 2009, February 6, 2009, and March 2, 2009. The defendant's entire medical record, as well as many reports written on his behalf, were deemed admitted into evidence for each side to use in questioning the witnesses and in making argument to the Court. The parties agreed to retain their own copies of any such evidence, and produce it for the Court upon request. However, many of the reports discussed throughout this hearing are contained in the court file.
At the hearing, the State called Dr. Angela Hegarty, and the defense called Drs. Janos Marton, Lawrence Siegel, and Allen Reichman. The Court found all of the witnesses to be credible.
The Court will now summarize the relevant testimony elicited at the hearing.
The first witness to testify for the State was Dr. Angela Hegarty, director of forensic psychiatry
at Creedmoor Psychiatric Center. Dr. Hegarty testified on direct examination that she is familiar with the defendant's clinical record [FN6] from Creedmoor Psychiatric Center, and that she is in fact familiar with the defendant himself.
Dr. Hegarty testified regarding how the defendant came to be in the custody of the Commissioner of Mental Health. She explained that in March of 1990, the defendant was arrested in relation to the murder of his mother which had occurred a couple of weeks earlier in the family home. She continued that the defendant had gotten into a car accident in Rockland County, seemed to be disturbed, and was sent to a psychiatric hospital. While hospitalized, he made an admission pertaining to his mother's death. He was subsequently arrested, sent to King's County Hospital, and in 1992 was found, after a plea, to be not responsible by reason of mental disease or defect, for his mother's death. The defendant was sent for treatment to Mid Hudson Psychiatric Center for about eighteen months. While at Mid Hudson, the defendant was medicated and improved very quickly, and within a relatively short amount of time, was deemed ready to be transferred to a less secure facility. The defendant was then sent to Creedmoor.
Dr. Hegarty continued that while at Creedmoor, the defendant had some difficulties and over the years had several very serious psychotic breaks. However, his last psychotic break occurred in [*4]1998. Dr. Hegarty explained that in the past, when the defendant suffered a psychotic break, he developed very real psychiatric symptoms, such as agitation, unintelligible speech, unsanitary behavior, and a threatening disposition, sometimes requiring emergency medication. Furthermore, Dr. Hegarty commented that when the defendant would re-compensate, once his medication took effect, the turnaround in his manner would be quite dramatic. He would be coherent, appropriate, intelligent, sophisticated, and interested in art and literature. She testified that the contrast between the defendant on and the defendant off his medication is one of the most dramatic she has seen during the course of her career. Dr. Hegarty stated that the defendant's decompensations were attributed to the defendant not taking his medication, and also to substance abuse. In 1998, the hospital was granted the authority to medicate the defendant over his objection. He has been medicated ever since, and has not decompensated since.
During the doctor's testimony, the Court asked the witness whether, if she could be assured that the defendant would always take his medication in the correct dosage at the correct time, his retention would be necessary, or would there be a way, less intrusive than retention, for the State to exercise control over him? Dr. Hegarty explained that she believed the defendant would do well in the community, and in a less strict setting than retention provides, as long as the defendant could make a safe transition to the community, and if she were assured that he would stay off drugs and remain on his medication. At this point in time, Dr. Hegarty stands behind the application for retention.
Dr. Hegarty continued that she has serious concerns about the defendant abusing substances. She said that she also has serious concerns about the defendant's ability to tolerate the stresses (sometimes referred by witnesses as "stressors") that he will face if he is suddenly moved from the type of setting he is in right now to being absolutely at liberty in the community. She elaborated that, additionally, she had concerns about a personality disorder that the defendant suffers from and that disorder, along with stress, would set him up for failure. Dr. Hegarty testified that the hospital needs to increase the defendant's privileges, and needs to place him in a more competitive work environment and a more competent educational environment. She explained that the defendant will need help facing the kinds of stressors that he will have to deal with with an increase of privileges, and that he should face the increases in a gradual step by step manner. Dr. Hegarty stated that though the defendant is a young, intelligent man, he has been hospitalized and out of the community for many years.
Dr. Hegarty continued that she believes the defendant is ready for unescorted off- grounds privileges, that he needs to [*5]attend school, and to get re-acquainted with a work environment. Upon questioning by the Court, Dr. Hegarty testified that she also believes that, since the defendant is well aware of the fact that he needs to continue taking his medication and not abuse substances, there could be a treatment plan put into place which transitions the defendant into the community rather quickly, by granting him increased privileges while at the same time providing him the infrastructure necessary to support him. At pages 31-34 of the hearing transcript dated September 3, 2008, the Court asked the doctor, see page 34, line 5, "you're ready to give the man without conditions" [sic]? The doctor indicated that if it were up to her, absolutely. However, clearly there is a typographical error in the transcription of that query by the Court and it is unclear from the colloquy if the doctor is referring to releasing the defendant on unescorted furloughs, or conditionally releasing him with an order of conditions. Though the language of the Court's question seems to indicate that the Court was inquiring about some type of release for the defendant, probably release with an order of conditions, recent reports by this witness indicate that she recommended to the hospital's forensic committee that the defendant be granted only unescorted
furloughs.[FN7] Whichever recommendation the witness was making, it is clear that this witness feels the defendant should be receiving far more privileges than he is getting, and though the hospital was totally behind a substantial increase in privileges, her testimony indicated that the
Bureau of Forensic Services [FN8] [*6]denied her recommendation.[FN9]
Dr. Hegarty testified that the defendant is suffering from schizophrenia, a narcissistic personality disorder, and that he has a history of mixed substance abuse. When discussing his mental illness of schizophrenia, Dr. Hegarty testified that when the defendant is on his medication, he is symptom free. She stated that when he is well, there is no evidence that he suffers from a thought disorder, hallucinations, or delusions. She continued that except for some issues relating to his personality disorder, the defendant is logical, coherent, and goal directed in his speech. Dr.
Hegarty commented that she believes the defendant knows that he must take his medication, is motivated about taking it, and that he is horrified thinking about the image he presented when he was sick.
Upon being questioned about what effect a narcissistic personality disorder has upon the defendant's diagnosis of schizophrenia, Dr. Hegarty testified that the disorder may be an indication why a person with schizophrenia may be violent to the extent of committing a homicide. She explained that while schizophrenia does not usually entail the risk of terrible violence, the underlying personality of the person may contribute to violent tendencies. She stated that hallmarks of a narcissistic personality disorder are a grandiose sense of self, the sense that rules do not apply to the individual, and that one is entitled to special privileges and dispensations. The doctor submitted that sometimes medications are helpful to treat personality disorders and sometimes other modalities of treatment, such as therapy, are helpful.
Dr. Hegarty testified that patients with narcissistic personality disorder have issues with a high self-esteem. When they are stressed, or if they are not treated with deference as to things to which they feel they are entitled, they may become irritable, agitated, angry, upset, depressed, or they may reach for drugs to comfort themselves. Dr. Hegarty elaborated that regarding the defendant for example, when he first came to Creedmoor, he abused drugs due to the stress of his arrival. She continued that he also, due to the disorder, had difficulty accepting his role as a patient, difficulty accepting the notion that he needs medication, and had a ceratin rigidity and [*7]inflexibility in dealing with situations. She testified that the defendant had inappropriate relationships with the staff, which she said was an example of how he did not see himself as a patient in a hospital. Dr. Hegarty said that the defendant had tremendous pressure to succeed placed upon him while growing up. Dr. Hegarty stated that the defendant has made a long and painful journey in realizing what type of help he needs.
Dr. Hegarty testified that she is hoping for the defendant to have a safe transition into the community, where she believes he can do well. She wants him to experience the education system and a stable work environment, where the defendant can see how he measures up to others. However, Dr. Hegarty cautioned that if the defendant were released into the community too quickly, she believes it would be extremely likely that he would relapse, especially with regards to substance abuse, which would have a devastating impact on his psychiatric condition. She continued, that, in her opinion, the defendant is in need of continued retention as a patient in Creedmoor. Dr. Hegarty explained that while the defendant has done well, retention is necessary to effect a safe transition into the community in order to reduce the risk of relapse, and to set him up for success. The doctor submitted that his personality disorder makes him less flexible and resilient in dealing with the stresses of release, and that without a gradual progression of privileges, the stresses could increase the likelihood of the defendant abusing drugs, which could in turn trigger a schizophrenic decompensation. Dr. Hegarty opined that it would be overwhelming for the defendant to go from a totally structured environment to one where everything is in his own control.
Upon questioning by the Court, the doctor stated that if it were up to her, the process of gradually increasing the defendant's privileges and teaching him the skills needed to live on his own would have begun already, but that the Bureau of Forensic Services is denying the defendant the increased privileges. Dr. Hegarty does not concur with its judgement. She continued that if retention is granted, she would do everything in her power to make sure that the increased privileges begin as soon as possible. Dr. Hegarty testified that without a safe transition into the community, she believes it is likely within a reasonable degree of medical and psychiatric certainty that at some point the defendant would pose a danger to himself. She continued that due to his personality disorder it is her opinion that the defendant's judgement is impaired to the point that he does not understand the need for continued impatient treatment.
Dr. Hegarty testified that the defendant tends to see himself as a victim, and that he has a hard time dealing with people who have a negative opinion of him. The doctor continued that, in light of the defendant's ability to function in the [*8]community, she believes that as long as things are going well for him, and he remains on his medication and refrains from drug abuse, he will do fine. Dr. Hegarty stated that problems may occur when people do not react to the defendant as he would like, or that he does not have the success he hopes for socially, interpersonally, or in the art world, as the defendant is an artist. She stated that when things do not go right in a certain way for someone with narcissistic personality disorder, they can suffer paranoia, rage, and they can decompensate. The doctor said that in the defendant's case, when he decompensates, he becomes disorganized, aggressive, and agitated. She elaborated that should the defendant decompensate while in the community, she would be concerned about psychosis and violence. Dr. Hegarty concluded her direct testimony by stating that though the defendant appears in Court demonstrating absolutely no signs of any problems whatsoever, until a safe transition into the community is effected for the defendant, discharging him now would not be consistent with public safety.
Upon cross-examination, Dr. Hegarty testified that in February, 2002, she performed a forensic evaluation, a risk assessment, of the defendant, which might have required her testimony in court. Furthermore, Dr. Hegarty indicated, in a report dated November 6, 2002, that in June, 2002 she began individual psychotherapy with the defendant, which involves a client/therapist relationship. Dr. Hegarty stated that she asked the defendant to consent to her taking on this dual role, as both risk assessor and treating doctor, which he gave. She acknowledged that this put the defendant in a compromising situation, in that he may have answered in the affirmative just to appease her. The doctor did not have the defendant sign a consent form, and she wrote no note in his hospital record indicating his consent. Dr. Hegarty testified that though she is aware of American Academy of Psychiatry guidelines for the practice of forensic psychiatry indicating that, generally, treating psychiatrists should avoid evaluating their patients for legal purposes, it was not a poor decision in this case for her to take on that dual role.
Dr. Hegarty testified that she completed her risk assessment in October of 2002, and that she asked the defendant in late December 2002 if he wanted to continue the individual psychotherapy, and that he indicated that he did. Dr. Hegarty stated she stopped the psychotherapy in January of 2003 because, in part, her schedule was disrupted in that she broke her arm and leg. The doctor also stated that her assessment was completed. Dr. Hegarty testified that she conveyed to the defendant that she would stop seeing him for individual therapy soon after the risk assessment was completed. Dr. Hegarty testified that at some point, early 2003, she called defense counsel wanting to assign [*9]the defendant a new psychotherapist who she thought would be good for the defendant, and informed counsel that the new doctor would not be evaluating the defendant for court purposes. A new individual psychotherapist, however, was not assigned to the defendant until spring of 2004.
Dr. Hegarty testified that prior to the instant offense the defendant had never been hospitalized for mental health purposes, nor was he receiving psychiatric care. He was, however, smoking a great deal of marijuana, suffering from paranoia and psychosis, hearing voices, and receiving messages from the TV. It has been 10 years since the defendant has received messages from the TV and he has not heard voices since 1990. Dr. Hegarty testified that the defendant has not had severe psychotic episodes for 10 years, and it has been much longer since he has suffered other psychiatric symptoms.
Dr. Hegarty continued that the defendant knows the signs and symptoms of his mental illness, and knows to tell his psychiatrist if he exhibits any of them. The doctor testified that the death of the defendant's father was one of the things that set the defendant's psychosis in motion. Furthermore, after his father's death, the defendant began smoking marijuana to such a degree that his functioning deteriorated.
Dr. Hegarty stated that the defendant had improper relationships with the staff, and some of the relationships were of a sexual nature. The doctor testified that one of the individuals with whom the defendant had an improper relationship, although not a sexual one, was a social worker. The doctor conceded that apparently it was the social worker who was inappropriate with the defendant, when she shared a great deal of very personal information with the defendant. Additionally, though not permitted to be an escort for the defendant, she took him off hospital grounds, in her car, to an art store. The social worker subsequently resigned.
Dr. Hegarty also testified about another staff member, a therapy aid, who was inappropriate with the defendant when she was seen on a video sitting on the defendant's lap, with her breasts exposed. The doctor testified, regarding two pictures that were marked for identification as defense exhibits A and B, and demonstrating improper behavior between the defendant and the aid, that the defendant told her that the pictures were taken for an art show. Dr. Hegarty continued that a third individual, a nurse on the defendant's treatment team, was also inappropriate with the defendant. Dr. Hegarty acknowledged that the nurse flirted with the defendant, would bring him food and books, show him special favors and attention, had the defendant assist her with her classes, confided in the defendant regarding her marriage, and possibly engaged in sexual behavior with him.
Dr. Hegarty continued that a fourth individual, a housekeeper, [*10]was also inappropriate with the defendant. The housekeeper was making flirtatious remarks to the defendant and was leaving chocolates on his pillow. The defendant reported this to the staff. The People at this point in the testimony stipulated that there certainly was malfeasance and inappropriate conduct regarding the defendant during the time period in the 1990s (see, the minutes, dated September 10, 2008, page 192, lines 19-22). Furthermore, the Court indicated to the defense that the point was made that many professional people failed in their duty towards the defendant (see, the minutes, dated September 10, 2008, page 190, lines 4- 6).The doctor testified that in May of 1994, the defendant tested positive for illegal drug use. The defendant, however, denied any drug use, and claimed that his urine specimen was mishandled. An investigation followed that allegation. A report dated June 30, 1994, by one Sam Marco was deemed in evidence. The report demonstrated that the defendant's allegation of a mix-up with someone else's urine was substantiated.
Dr. Hegarty continued her testimony during cross-examination by stating that she had conducted a mental status examination of the defendant and her exam indicated that the defendant had excellent social skills, makes good eye contact, and is able to engage in social small talk without difficulty. She continued that his manner is charming, he is alert and oriented, he displays no evidence of movement disorder or medically induced Parkinson's disease, his facial expressions are appropriate, and he is able to pay attention for long periods of time. At this point during the doctor's testimony (see, the minutes, dated September 10, 2008, pages 199- 200), defense counsel referred to Dr. Hegarty's report in evidence, dated November 6, 2002, and alerted the Court to her findings that the defendant demonstrates no evidence of distractibility, when interrupted, he easily returns to the topic at hand, he has a vocabulary consistent with his superior intelligence, he can recall new information, retains knowledge of relevant dates, names and events, shows no evidence of short or long term memory disorder or thought disorder, and denies symptoms of hallucinations or delusions.
Dr. Hegarty continued her testimony acknowledging that there came a time when she recommended the defendant for unescorted off-ground furloughs, based upon her interview of him on October 10, 2007. The doctor indicated that she signed an affidavit on October 31, 2007, supporting such relief, and said affidavit was deemed in evidence. The doctor stated that in the affidavit, she diagnosed the defendant with schizophrenia, with substance abuse in remission while he was in a controlled environment. She conceded that the affidavit did not include the diagnosis that the defendant suffered from narcissistic personality disorder. The doctor indicated that if that diagnosis was not on the [*11]affidavit it was an omission that should be corrected.
Dr. Hegarty testified that the defendant had done well with unescorted on-ground privileges, since prior to 2002, and the defendant would walk everyday from his building to Creedmoor's Living Museum [FN10]. The doctor testified that the defendant was never an elopement risk during the 30 minute walk. Furthermore, the defendant has been approved, by the hospital forensic committee and the Bureau of Forensic Services, for escorted off-grounds privileges, without gender restriction for his escort.Dr. Hegarty testified that she is presently recommending the defendant for unescorted off-grounds furloughs.[FN11] She continued that the hospital forensic committee has also made this recommendation.[FN12]
Dr. Hegarty testified that Dr. Grandy, the head of the hospital forensic committee in 2007, wrote a report dated October 23, 2007, indicating that Dr. Grandy performed a mental status examination on the defendant. Dr. Hegarty continued that the report, which was deemed in evidence, indicated that the defendant's responses were spontaneous, goal directed, relevant, and that no psychotic symptoms on the part of the defendant were elicited. The report also indicated that the defendant denied hallucinations, suicidal ideas, homicidal ideas, that he displayed no cognitive impairment, that he was tearful when discussing his mother's death, and that he had feelings of remorse. Furthermore, it indicated that the defendant admits that the chronic use of marijuana played a part in his homicidal [*12]behavior, that medication saved his life, that the defendant is compliant with his medication and his privileges, and that random drug screenings are always negative. Additionally, the report indicated that the defendant is free of psychotic symptoms, attends NA and AA meetings, and understands the importance of being involved in substance groups to stay drug free.
Dr. Hegarty testified that the defendant has been stable since 1998, and has abstained from illegal drug use since 1992. The doctor stated that these facts indicate that the defendant's medication is working, in a structured setting with the absence of illegal substances. The doctor continued that the stresses the defendant would face if released to a nonstructured setting would lead to a reoccurrence of the his psychotic symptoms. However, after a safe transition has been made, the treatment team would want to release the defendant into housing on the grounds of Creedmoor. Such housing would be structured in a sense, but very much less so than the structure that is provided in the hospital. Dr. Hegarty testified that the defendant has stresses just by being a patient in the hospital. One of those stresses includes living with other patients who suffer from their own mental illnesses. The doctor continued that though the defendant faces countless stressors, he is functioning quite well, and has become a famous artist, with a body of work that he could be proud of. She stated that before he was in the structured hospital setting, the defendant was paranoid, abusing drugs, going from job to job, and despite being an intelligent, creative man, had no work to be proud of. Dr. Hegarty testified that the hospital ward, the medication, the supervision, the absence of illegal drugs, and the Living Museum have been the secrets of the defendant's success, and the defendant's situation should be changed only gradually for a safe transition to the community to be effected.
The Court questioned Dr. Hegarty about why she would ever recommend that the defendant be released, since she testified that the defendant's abilities as an artist have flourished with the medication and structure of the hospital. Dr. Hegarty responded that not only does the defendant not want to be hospitalized, but they only keep people in a hospital who need it. Furthermore, the doctor testified that she is duty- bound to keep a patient in the least restrictive environment as possible. She continued that the hospital's plan for the defendant includes having him released from
the hospital, without retention, on an order of conditions [FN13]. The doctor stated that she believes such [*13]release would take place in anywhere from 6 months to 18 months. Dr. Hegarty testified that she reviewed the comprehensive treatment plan signed by Dr. Russo, and deemed defense exhibit C in evidence, which indicates that the defendant had an anticipated discharge date of March
14, 2008, and he would be referred to a structured and supervised residential setting, with psychiatric aftercare including medication management, substance abuse counseling, and case management services.[FN14]
Dr. Hegarty testified that there came a time between February, 2002 and November, 2002 when she borrowed a manuscript from the defendant. This manuscript was a narrative by the defendant, a novel, about his experiences in the system, including the circumstances leading up to, and shortly after, the death of his mother. At some point, the defendant asked the doctor to return the manuscript, and by July, 2004, she had not. Dr. Hegarty testified that she, and her supervisor, received multiple memos from defense counsel, throughout 2004, 2005, and 2006 requesting that the defendant's manuscript be returned to him. The doctor testified that she did not respond to the
memos, nor did she return the manuscript until late 2006.[FN15] Dr. Hegarty testified that she was using the narrative in preparing her assessment of the defendant. The doctor conceded that her behavior was inappropriate, and she should have apologized to the defendant. She further conceded that it must have been a stressful situation for the defendant.
At this point in the hearing, Dr. Hegarty was questioned about the position of the Bureau of Forensic Services regarding her application to grant the defendant unescorted off-ground furloughs (see, hearing minutes, dated December 12, 2008, pages 267- 272) . Dr. Hegarty testified that though she, and the hospital forensic committee, made this recommendation, it was forwarded to the Bureau, where the recommendation remained for approximately ten months, before the request was denied. Dr. Hegarty continued that no one from the Bureau personally interviewed the defendant, though she made that request. The doctor testified that she received a memo, dated August 21,
[*14]2008,[FN16] from the Bureau, raising some concerns about the defendant [FN17] and indicating that the Bureau decided to turn down the application. Dr. Hegarty testified that she felt that the Bureau was wrong in it's determination, and she believes that the defendant should have been granted unescorted off-ground furloughs.
Dr. Hegarty continued her testimony by stating that the defendant is using his unescorted on

Download 2009_50833.pdf

New York Law