IN THE MATTER OF FRANCIS S., A/K/A FRANCES S., APPELLANT. / DISTRICT ATTORNEY
OF NEW YORK COUNTY AND COMMISSIONER, NEW YORK STATE OFFICE OF MENTAL HEALTH,
RESPONDENTS.
87 N.Y.2d 554, 663 N.E.2d 881, 640 N.Y.S.2d 840
December 28, 1995
1 No. 305(1995 NY Int. 307)
Decided December 28, 1995
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Stephen J. Harkavy, for Appellant.
Howard L. Zwickel, for Respondent Commissioner.
Morrie I. Kleinbart, for Respondent District Attorney.
American Alliance for Rights & Responsibilities, et al., amici curiae.
LEVINE, J.:
In 1987, with the permission of the court and the consent of the
People, defendant Francis S. entered a plea of not responsible by
reason of mental disease or defect to charges of attempted assault in
the first degree and possession of a weapon in the third degree (see,
CPL 220.15). Before accepting that plea, the court made the requisite
finding "that each element of (each) offense * * * charge(d) in the
indictment would be established beyond a reasonable doubt" (CPL
220.15(5)(a)). Following a psychiatric examination and initial hearing
to assess his present mental condition (see, CPL 330.20(2), (6)), he
was determined to be a "track 2" insanity acquittee, that is, mentally
ill but not suffering from a dangerous mental disorder (see, Matter
of Jill ZZ., 83 NY2d 133, 137), and was remanded to the custody of the
Commissioner of Mental Health ("the Commissioner") to be civilly
committed for a four month period (see, CPL 330.20(7)). The hearing
court also issued a five-year order of conditions, which required
defendant inter alia to comply with the terms of the treatment plan
prescribed for him by the Office of Mental Health ("OMH").
Pursuant to that plan, defendant was treated on both an inpatient
basis in a nonsecure facility and on an outpatient basis at various
State psychiatric clinics over the next several years. However, in
early 1991, he unilaterally changed his treatment center in violation
of his order of conditions.
That order of conditions was due to expire August 7, 1992. On August
SNIPPETS:
IN THE MATTER OF FRANCIS S., A/K/A FRANCES S., APPELLANT.
/ DISTRICT ATTORNEY OF NEW YORK COUNTY AND COMMISSIONER, NEW YORK STATE OFFICE OF MENTAL
Morrie I. Kleinbart, for Respondent District Attorney.
In 1987, with the permission of the court and the consent of the People, defendant Francis S.
The hearing court also issued a five-year order of conditions, which required defendant inter
defendant was treated on both an inpatient basis in a nonsecure facility and on an outpatient
Although S. could not initially be located and failed to appear on the recommitment
The court denied the motion in all respects and held a hearing to determine whether S.
The hearing evidence consisted primarily of expert psychiatric evaluations and evidence of
All six agreed that S. was suffering from a mental disorder; the primary source of
At the conclusion of the hearing, Supreme Court found that S. was mentally ill.
The court nevertheless felt constrained under the authority of Matter of Torres (168 AD2d
A three- Justice majority at the Appellate Division concurred with Supreme Court's finding of
We likewise reject S.'s argument that statutory predicates for the hearing court's
According to that provision, any application by the Commissioner for an order pursuant to CPL
Stripped to its essentials, his argument is that, if at the initial hearing after being found
As we have repeatedly recognized, however, the provisions of CPL 330.20 for imposing orders
ce of dangerous behavior derived from mental illness.
In Matter of Oswald N. ), we recognized the inability of modern psychiatry to guarantee the
And in Matter of George L. (85 NY2d 295, 306, supra), we relied upon one legal commentator2
The reasons the Supreme Court found sufficient for permitting lesser procedural safeguards on
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