BakerHostetler
April6, 2017
New York State Court of Appeals
Attn: Bon. John Asiello, C1erk
20 Eagle Street
Albany, New York 12207
Re: Herman v. Herman/ APL-2017-00031
Dear Mr. Asiello:
Baker & Hostetler LLP
45 Rockefeller Plaza
New York, NY 1011 1
T 212.589.4200
F 212.589 420 1
www. bakeriaw com
John Siegal
direct dial: 21 2.5&9.4245
jsiegal@bakerlaw.com
We represent Defendants-Appellants and Third Party Plaintiff-Appellant
Julian Maurice Herman and Windsor Plaza LLC (co11ective1y, "Maurice") and
submit this letter brief pursuant to 22 NYCRR § 500.11 in support of the appeal.
PRELIMINARY STATE.lVIENT
Our courts are an adversary system anchored in the ethos that truth-seeking
and the quest for justice emerge from the clash of evidence presented by advocates
for each party. In our system, one-sided justice is no justice at all.
Our courts also properly require adherence to rules and orders, for
adversarial justice requires fair play.
In this case, the trial court imposed a discovery sanction completely
precluding Maurice from participating in a damages inquest. That sanction
eviscerates the adversarial process, denying Maurice due process, and undermining
the court's truth-seeking function.
Atlanta Chicago Cincinnati Cleveland Columbus Costa Mes
Gilbert Ortega, Defendant
Supreme Court, Bronx County
1618/84
March 6, 1985
CITE T ITLE AS: People v Ortega
HEADNOTES
Escape of Insanity Acquittee from Nonsecure Facility
([I J) A person acqu itlcd of a crime by reason of insan ity
who is placed pursuant to court order in a nonsecure
mental health facility may not be indicted for felony
escape for leaving the facil ity without authorization since
a nonsecure psych iatric hospital, where the primaty
emphasis is on care, treatment and rehabili tation of the
mentally disabled, is not a "detention faci lity" (cf 14
NYCRR 54 1. 1 [zJ) within the meaning of the felony
escape statutes (Penal Law § 205.00 [1] ; § 205.10 [I]);
the fact that there is no reference to penal sanctions for
escape in the comprehensive statutoty and regulatory
scheme governing insanity acquittees (see, CPL 330.20
[ 19]; 14 NYCRR 54 1.1 2) reflects a legislative intent to
insulate insanity acquittees from all criminal prosecution
for escape since the Legislature could have enacted a
specific statute authorizing prosecution of an insanity
acquittee who escapes from either a secure or nonsecure
faci lity if it had intended to criminalize the escape of an
insanity acquittee.
APPEARANCES OF COUNSEL
I~· l' ' fl lf I
Caesar D. Cirigliano, Robert Stuart Rosensweet and
Segundo A. Mercado-Llorens for defendant. Mario
Merola, District Attorney (Seth Marvin of counsel), for
pia inti fT.
OPINION OF THE COURT
Irving Lang, J.
An unusual issue is raised by defendant's motion to
dism iss the indictment: can a person acquitted by reason
of insanity, who is placed pursuant to cout1 order in a
nonsecure mental health faci lity, be indicted for the crime
of escape?
I. FACTS
On November 22, 1978, the Grand Jury of New York
County indicted the defendant Gilbert Ortega for the
crimes of rape in the first degree and related offenses. On
January 8, 1981, following a jury trial before Honorable
Morris Goldman, the defendant was found not responsible
by reason of mental disease or defect. In March 1981,
following a hearing pursuant to CPL 330.20 (6), Justice
Goldman found that the defendant was suffering from a
dangerous mental disorder and committed the defendant
to the Commissioner of Mental Hygiene. He was placed
in a "secure" faci lity.
On September 3, 198 1 and on October 27, 1982,
Honorable Angelo Ingrassia and Honorable David Ritter,
both of the Orange County Court, signed first and second
retention orders, *718 respectively, thereby continuing the
defendant in the custody of the Commissioner of Mental
Hygiene.
On November 14, 1983, Ronald T. Greene, Acting
Director of the Bureau of Forensic Services, applied for a
transfer order on the ground that Ortega was no longer
suffering from a dangerous mental disorder and no longer
warranted continued confinement in a secure facility.
Following a hearing at Orange County Court on f ebruary
22, 1984, Honorable Peter Patsalos signed an order
transferring the defendant from Mid-Hudson Psychiatric
Center to Bronx Psychiatric Center. The latter is a
nonsecure mental health facility. The transfer was
effected on March 8, 1984.
The People allege that on April 2, 1984, at approximately
I :00 p.m., the defendant left Bronx Psychiatric Center
without authorization. Four days later, the defendant
voluntarily surrendered to Por1 Authority Pol ice and was
I V
People v Ortega, 127 Misc.2d 717 (1985)
487 N.Y.S.2d 939
returned to the psychiatric facility. On May 4, 1984, the
Grand Jury of Bronx County indicted defendant Ortega
for the crimes of escape in the second degree and escape
in the third degree (Penal I a\\ § 205.10 [I]; § 205.05). A
warrant for defendant's arrest was executed at Bronx
Psychiatric Center, and on May 7, 1984 the defendant was
an·aigncd before this court. He interposed a plea of not
guilty. The present motion ensued.
II. ISSUE
Defendant's motion to dism iss the indictment presents the
issue whether an unauthorized departure from a nonsecure
psychiatric faci lity, by an insanity acquittee confined
therein pursuant to CPL article 330, constitutes the crime
of escape. Stated otherwise, what type of conduct did the
Legislature intend to criminalize when it enacted the
escape statute? In order to ascertain the legislative intent,
a two-pronged analysis is required. Both the plain
language of the escape statute and the over-all statutory
scheme relating to insanity acquinees must be examined.
Ill. THE STATUTES AND THE CONTENTIONS
The first count of the indictment charges the defendant
with escape in the second degree. Penal Law § 205.10 (I)
defines this offense as follows:
"A person is guilty of escape in the second degree when:
" I. [h]e escapes trom a detention faci li ty".
Detention facility is defined as "any place used for the
confinement, pursuant to an order of a court, of a person
(a) charged *719 with or convicted of an offense, or (b)
charged with being or adjudicated a youthfu l offender,
person in need of supervision or juvenile delinquent, or
(c) held for extradition as a material witness, or (d)
otherwise confined pursuant to an order of a court."
(Penal Law~ 205.00 f l] .) Paragraph (d) of this section is
at issue here.
The second count of the indictment charges the defendant
with the class A misdemeanor of escape in the third
degree. This offense is defined in Penal Law§ 205.05: "A
person is guilty of escape in the third degree when he
escapes from custody." The term custody "means restraint
by a public servant pursuant to an authorized arrest or an
order of a court." (Penal Law§ 205.00 [2].)
The defendant contends that the Legislature never
intended to include insanity acquittees, involuntarily
committed to mental hospitals pursuant to court order,
within the ambit of the escape statute. With regard to the
misdemeanor count, the defendant argues that the term
"custody" applies only to one who stands in a penal
relationship before the court, and not to an insanity
acquittee who is confined to a hospital for treatment.
With reference to the felony count, the defendant asserts
that Bronx Psychiatric Center is not a "detention facility"
and that the term "any place used for the confinement ...
of a person ... otherwise confined pursuant to an order of a
court" (Pen a I Law § 205.00 [ I] [ d]) is not intended to
apply to a psychiatric treatment center.
The defendant also argues that CPL article 330 is the
exclusive avenue of adjud ication for insan ity acqui ttees,
and that CPL 330.20 provides the sole remedy for one
who escapes fi·om confinement from an institution such as
Bronx Psychiatric Center.
In opposition to defendant's motion to dismiss, the People
argue that defendant Ortega's unauthorized depmture
does constitute the crime of escape. Regarding the
misdemeanor count, the prosecutor argues that People v
Buthy (85 AD2d 890 14th Dept 1981 ), lv denied 55 NY2d
1040 [1982]) is controlling. In Buthy, the defendant, an
insanity acquittee who eloped from Gowanda Psychiatric
Center, a secure facility, was indicted for escape in the
second degree. He pleaded guilty to escape in the third
degree and then appealed, arguing that Gowanda
Psychiatric Center was not a detention facility, and
therefore the evidence before the Grand Jury was
insufficient to establish the felony. The Appellate
Division affirmed the conviction, and noted in dicta that:
"It appears clearly that the evidence establishes *720
defendant's comm ission of escape, third degree, a lesser
included offense of escape [in the] second degree, in that
defendant escaped from the custody of the Comm issioner
of Menta I Hygiene, a pub I ic servant under whose restrai11t
he was placed by court order" (p 890; emphasis added).
The prosecutor argues that this statement in Buthy is
dispositive of Ortega's challenge regarding the legal
sufficiency of the misdemeanor count.
With reference to the felony count, the People contend
that the wording of Penal Law § 205.10 (I) is clear and
unambiguous, and that defendant's action in leaving
Bronx Psychiatric Center falls squarely within the plain
language of that statute.
The prosecutor further asserts that CPL 330.20 was not
intended by the Legislature to be the exclusive remedy for
dealing with the unauthorized departure of an insanity
acquittee from a psychiatric facility. He argues that the
procedures contained in CPL 330.20 are purely
People v Ortega, 127 Misc.2d 71 7 (1 985)
487 N.Y.S.2d 939
permissive, and do not divest the Penal Law escape
provisions of their substantive applicability in this case.
Whi le the defendant's commitment as a mentally ill
person is central to this case, neither his competency to
stand trial (CPL art 730) nor h.is crim inal responsibility
are involved in this motion. He was found fit to proceed at
his tr ial in 1981. And the acquittal by reason of insan ity
was a determination that he was not responsible by reason
of mental disease or defect at the time of the alleged rape
in 1978. Neither law nor logic presumes continued lack of
responsibi lity. The finding that the defendant was
suffering from a "dangerous mental disorder" after his
trial means that he was mentally ill with in the meaning of
Mental Hygiene Law§ 1.03, which makes no reference to
either competency to stand trial or criminal responsibility
(CPL 330.20 [1] [c]; [2]).
IV. ANALYSIS
(A) Survey of Existing Case Law
No New York case has specifically addressed the question
of whether criminal liabili ty should attach to an insani ty
acquittee who "escapes" fi·om a non secure psych iatric
facil ity. A few New York cases (such as PeopLe v Buthy,
supra) have tangentially touched upon the issue.
In People ex ref. Powell v Warden (73 AD2d 654 [2d
Dept 1979]), petitioner was found unfit to proceed to trial
pursuant to CPL a1t icle 730 and was adm itted to
Mid-Hudson Psych iatric Hospital. Two years later, a
hearing was held at wh ich time it was determined that
there was no substantial likelihood that *721 petitioner
would be competent to stand trial in the fo reseeable
future. In accord with the mandate of Jackson v Indiana
( 406 U.S. 71 5), petitioner was admitted by the hospital
director as an involuntary patient under Mental Hygiene
Law § 9.27. He was subsequently transferred to
Kingsboro Psych iatric Center, a less restrictive institution.
Less than 60 days later, petitioner left the Kingsboro
Psychiatric Center without perm ission. He voluntarily
returned the same day and was charged with escape in the
first degree. In granting the petition for a writ of habeas
corpus, the Appellate Division held that petitioner's
escape was not criminal. The cowt reasoned that although
the defendant had been confined at the time of his escape,
he was not confined pursuant to an order of the court.
Since he escaped during the initial 60-day period, he was
confined pursuant to the discretionary action of the
hospital director. The indictment was thus held to be
defective.
In the context of a drug treatment center, two New York
•' If
courts have held that where a person is voluntarily civi lly
comm itted to the Narcotic Add iction Control Commission
(hereinafter NACC) pursuant to court order, and he
escapes from a drug rehabilitation faci li ty, he can be
indicted for escape in the second degree. (People v
B[fulco, 64 Mise 2d 10 [1969]; People ex ref. Farruggia v
Nenna, 57 Mise 2d 229 [ 1968].) These cases held that
drug treatment centers were detention fac ilities within the
meaning of the escape statute. (But see, contra, People v
Malloy, 58 Mise 2d 538 [Crim Ct, NY County 1968].)
Finally, in Matter of Freeman ( I 03 Mise 2d 649 [Fam Ct,
Onondaga County 1980]) the Family Court held that a
person alleged to be in need of supervision who is
committed by a cou1t to a nonsecure boarding home as a
status offender is nol in "detention" as that term is defined
in Penal Law article 205 (see also, Matter ofSylvia H., 78
AD2d 875 [2d Dept 1980]).
Thus, existing New York case law does not provide a
clear precedent for resolution of the present issue.
Moreover, the decisions from sister States and Federal
courts reflect a marked diversity of opinion. For example,
in United States v Powell (503 F2d 195 [DC Cir 1974])
the U.S. Cowt of Appeals held that the defendant's
escape fi·om a mental hospital to which he was comm itted
following an acquittal by reason of insanity did not
violate the Federal Escape Act ( 18 USC§ 75 1 [a]).' The
court *722 reasoned that the Federal escape statute could
be violated only if the defendant was in custody "by
virtue of an arrest on a charge of felony, or conviction of
any offense". Since a defendant's acquittal by reason of
insanity was not a conviction, and since the arrest lost its
legal vitality upon the acqui ttal, defendant's "escape" did
not violate 18 USC § 75 1 (a). The cou1t held that upon
defendant's acquittal by reason of insanity he was in
custody pursuant to a separate statute -- DC Code Ann §
24-3 0 I (d).2 That statute embodies a separate escape
provision which expressly supersedes the Federal Escape
Act (DC Code Ann § 24-30 I [h]).' That separate escape
provision states: "When a person has been ordered
confined in a hospital for the mentally ill pursuant to this
section and has escaped from such hospital the court
which ordered confinement shalL, upon request of lhe
government, order the return of the escaped person to
such hospital." (DC Code Ann § 24-30 I [i]; emphasis
added.) The Powell hold ing was adhered to in United
States v Wood (628 F2d 554 [en bane, DC Cir 1980]). "18
U.S.C. § 75 1 (a) does not apply to a patient who escapes
fi·om St. El izabeths Hospital, having been confined there
upon his acquittal in a prior crim inal case by reason of
insanity" (supra, at p 560).
Simi lar reasoning is expressed in State v Delafose ( 185 Ct
l •l>V 'I l VI'•
People v Ortega, 127 Misc.2d 717 (1985)
487 N.Y.S.2d 939
517, 44 1 A2d 158 [ 1981 ]). In Delafose the Supreme
Court of Connecticut held that defendant's escape from a
State mental institution, where he had been committed
pursuant to a verdict of not guilty by reason of insanity
did not constitute the fe lony of escape in the first degree
(Conn Gen Stat An n § 53a-169).• The court held that the
escape statute only applied to an individual who is '" in
the custody of the commissioner of correction or is
required to be returned to the custody of said
commissioner upon his release"' (supra, at p 525). Since
the insanity acquittee was sent directly *723 to a mental
hospital and into the jurisdiction of the Commissioner of
Mental Health, the court reasoned that he could not be
prosecuted for felony escape.
In State v Kyles (166 NJ Super 343,399 J\2d 1027 [Super
Ct, App Div 1979]) the New Jersey court also held that
the escape statute (NJ Stat Ann § 2/\: I 04-6)' does not
apply to the unauthorized departure from a psychiatric
institut ion by a person who is involuntarily civilly
committed. Rejecting the State's contention that a civil
commitment order constitutes a "writ or process in a civil
(proceeding]" the court reasoned that "the legislature did
not intend criminal culpability to attach to the wanderings
of involuntarily committed persons sutrering from mental
illness" (supra, at p I 029). The court also rejected the
argument that civi l commitment is "detention for law
enforcement purposes" (supra, at p I 030)."
In contrast, the California Legislature has specifically
designated the escape of one committed to a mental health
facility upon a finding of insanity a crime. (Cal Penal
Code§ I 026.4.)' Similarly, in Sf(tte v Flemming (377 A2d
448 [Me 19771), the Supreme Judicial Court of Maine
held that an escape by an individual confined in a mental
health institution upon a find ing of not guilty by reason of
mental disease or defect does fa ll within the purview of
the escape statute.• The phrase "other place of
confinement" was deemed to include a mental health
facility where an individual is held subject to judicially
ordered *724 restraint on his movement. (See also, People
v Giles, _Col_ , 662 P2d I 073 [ 1983], where the
Supreme Court of Colorado held that the due process and
equal protection clauses are not violated by application of
the escape statute to those committed to a State facility as
a result of a prior insanity adjudication; State v Ewing,
518 S W2d 643 [Mo 1975], which held that an insanity
acquittee who escapes from a mental health facility may
be prosecuted for a fe lony.)
It is thus apparent that there ex ists a distinct po larization
of views on the issue of the criminal liabi li ty of the
insanity acquillee who escapes fi·om a mental hospital. In
order to determine whether Gilbert Ortega's unauthorized
I f
departure from Bronx Psychiatric Center constitutes
conduct proscribed by the New York escape provisions,
the point of departure must be the interpretation of the
relevant statutes.
(B) Rules of Statutory Construction
Certain fundamental tenets of statutory interpretation are
applicable here. First, words of ordinary import are to be
given d1eir usual and commonly understood meaning
unless it is plain fi"om the statute that a di./Jerent meaning
is intended (Matter of Bolden v Blum, 68 J\D2d 600, 602
[3d Dept], af!d 48 NY2d 946 [ 19791). When the statutory
language is precise and definite, courts should not go
elsewhere in search of conjecture so as to restrict or
extend that meaning. (Malter l?{ Erie Coun~v Agric. Soq•.
v Cluchey, 40 NY2d 194, 200 [ 1976].) Courts may only
look behind the words of a statute when the law itsel f is
doubtful or ambiguous. (Finger Lakes Racing Assn. ''
New York State Rucing & Wagering Bd., 45 NY2d 47 1,
480 [ 1978].) finally, '"of two constructions which might
be placed upon an ambiguous statute one which would
cause (objectionable) consequences is to be avoided."'
(Maller of fi-eeman, I 03 M isc 2d, at p 655.)
(C) The Felony Count-- A Literal Interpretation
Given the above rules of statutory construction, the ini tial
question is whether the defendant's action falls within the
plain meaning of the statute and whether the definition of
"detention facility" was intended to include Bronx
Psychiatric Center.
The defendant was confined at Bronx Psychiatric Center
by virtue of three orders: ( I) a retention order signed by
Judge Ritter; (2) a transfer order signed by Judge
Patsalos; and (3) an order of conditions, which provided
that the defendant shall not leave the facility without
permission. The District Attorney alleges that since Bronx
Psychiatric Center is a place used for confinement of a
person pursuant to cowt order, it is a detention *725
faci lity. Since defendant Ortega is a person confined
pursuant to court order, and since his departure from the
detention faci li ty was unauthorized, an escape was
committed within the plain meaning of d1e felony statute
and the inquiry must stop.
The prosecutor's argument has logical appeal. On its face,
the felony escape statute appears to encompass
defendant's act. However, were one to extend the District
Attorney's theory to its logical limit, the result would be
that any person who is civilly committed to any facility by
order of the court (be it a mental hospital, a halfway
People v Ortega, 127 Misc.2d 717 (1 985)
487 N.Y.S.2d 939
house, or a hostel for the mentally d isabled) who leaves
that faci lity w ithout permission, could be found guilty of
felony escape. Thus, if the prosecutor 's argument is
correct a purely literal interpretation of the statute would
mean that if a mentally ill parent was certified or
commi tted to a hospital by a c.ourt at the behest of the
chi ldren and the parent left the faci lity w ithout
authorization he wou ld be gu ilty of a fe lony escape. (See,
Mental I lygiene Law former art 5 for involuntary
commitment procedure by a court.) The same reason ing
would apply to a parent petit ioning the court for
commitment of a mentally defective child under Mental
Hygiene Law, former a1t 6, § 124 (I). That section
authorizes a cowt to order a mentally defect ive person to
"be certified to and confined in any licensed private
institut ion" (emphas is supplied). If the mental defective
escapes from that private institution in violation of the
court order, can we assume that the Legislature intended
that he be prosecuted for escape?
It is c lear that these issues cannot be resolved by merely
examin ing the escape statute. We must also exam ine the
nature of the fac ility and the nature of the individual so
confined.
(D) Detention Facility Secure v Nonsecure Facility
The term "detention faci li ty" was first incorporated into
the Penal Law in 1965. Between 1909 and 1965, the law
of escape was contained in Pena l Law of 1909 §§ 1609
and 1694. T hose provis ions contained a definition of the
term "prison" and "prisoner". Penal Law of !909 § 1690
defined a "prison" as "any place designated by law for the
keeping of persons held in custody under process of law,
or under lawful arrest." " [P]risoner" was defined as "any
person held in custody under process of law, or under
lawful arrest." The substantive offense, contained in Penal
Law of !909 § 1694 was defined as follows:
"Prisoner escaping
"A prisoner who, being confined in a prison, or being in
lawful custody of an officer or other person [by force or
11-aud] escapes *726 fi·om such prison or custody, is guilty
of a felony if such custody or confinement is on a charge,
an·est, commitment or conviction for a felony; and of a
m isdemeanor if such custody or confinement is upon a
charge, arrest, commitment or conviction for a
misdemeanor."
No significant changes in the law occurred until 1942,
when the Legislature made it a misdemeanor to escape
following a conviction for an offense, traffic infraction, or
violation of an ordinance. (Penal Law of 1909 § 1694; L
1942, ch 142.) At th is time, no reference was made to
psychiatric or civil commitments.
In 1943, the Legislature again expanded section 1694 and
declared it a misdemeanor to escape fi·om custody
following arrest or commitment in a civil action or
proceeding. In the revision notes to L 1943, ch 134, the
drafters stated that the 1943 amendment was "intended to
make it a misdemeanor to escape from lawful custody on
civil arrests or to aid such escape or to rescue a civil
prisoner" (Note of Commission, McKinney's Cons Laws
of NY, Book 39, Penal Law of 1909 § 1694, p 283;
emphasis added). Again, the term prisoner (as opposed to
patient) is ut ilized, and no reference whatsoever is made
to a psychiatric commitment or to a psych iatric facility .
No further s ignificant amendments to the statute were
unde1taken until the adoption, in 1965, of the revised
Penal Law. The 1964 Commission Staff Notes of the
Temporary State Commission of Revision of the Penal
Law and Criminal Code (at 373) provide an interesting
perspective regarding the Legis lature's aim vis-a-vis the
term "detention faci lity": "Section 210.00 [subsequently
enacted as § 205.00] defines four terms that are used
throughout ... Article 210 [renum a1ticle 205] The
definition of[the term] 'detention facility' in subdivision I
substantially restates existing Penal Law § 1690"
(emphasis added). Thus, not only were the drafters of the
present provision reiterating existing law, but there is
absolutely no indication, as the District Attorney suggests,
that one of the purposes of the expansion of the section
was to include escape from a mental health faci lity.
Finally, the current Practice Commentaries to Penal Law
§ 205 .00 (I) (Hechtman, McKinney's Cons Laws of NY,
Book 39, p 434) reflect the same theme. It states: "[t]he ...
term, 'detention faci lity,' is designed to replace the term
'prison' which was defined in former Penal Law § 1690
as 'any place designated by law for keeping of persons
held in custody under process of law, or under lawfu l
arrest.' Since the term 'prison' is popularly thought of as
a specific place of confinement for persons already
convicted, subdivision one of§ 205.00 is intended simply
to *727 clarify the situation by defining a term of broader
applicability. Clause (d) of subdivis ion one is intended to
apply to such places as a civil jail used for the
confinement of persons committed thereto in connection
with a civil action or proceeding" (emphasis added).
Thus, as the prosecutor points out, although the term
detention faci lity has a broader mean ing than the term
" prison", the limits on the term's appl icability are clearly
indicated. That is paragraph (d) ("otherwise confined
pursuant to cou1t order") is narrowly construed to apply
to faci lities such as civil jail, not a psychiatric hospital.
I) o/ fl "\''
People v Ortega, 127 Misc.2d 717 (1 985)
487 N.Y.S.2d 939
It is also sign ificant that the Legislature has directly
addressed the problem of escapes by youthful offenders,
PINS, juven ile delinquents, material witnesses, etc., by
explicitly referring to those groups when defining the
term "detention fac ility". In contrast, it has never referred
to insanity acquittees in the same context. Indeed, the
Legislature had the perfect opportunity to do so, in 1980,
when it revised the Crimina l Procedure Law and enacted
the Insanity Defense Reform Act. Since there is a
conspicuous absence of any reference to mental health
facilit ies or insanity acqu ittees in Penal Law§ 205.00 (I)
it is reasonable to conclude that paragraph (d) of the
statute was not intended to encompass departures by such
persons from those faci lities.
If, by some strained interpretation, the Legislature meant
to include psychiatric hospita ls with in the parameters of
the term "detention faci lity", the question arises as to
what (ype of psychiatric faci lity was contemplated. In the
1960's when the term "detention fac il ity" was defined,
insan ity acquittees were mostly sent to Mattawan State
Hospital or Dannemora from which nobody escaped (thus
the paucity of case law). Today there is a wide range of
options available for rehabilitation of the mentally
disabled (including insanity acquittees), such as ha lfway
houses, community residences and hostels for the
mentally il l (14 NYCRR parts 111, 586). In these
facilit ies, there is supervised interaction with the
community, and the mon itoring of patient's activities is
less strict. It is doubtful that the Legislature contemplated
such treatment centers, back in 1965, when it framed the
defin ition of detention facil ity. In this regard, it is
sign ificant that Bronx Psych iatric Center is a nonsecure
menta l hygiene faci lity, and that Ortega's transfer to that
fac ility was predicated on finding that he was no longer
suffering from a dangerous mental disorder. (14 NYCRR
541.7 [c).)'' *728
This court is unaware of any statutory or regulatory
definition of "nonsecure faci lity". However, a secure
facility is defined as follows: "Secure facility means a
psychiatric center or unit of a psychiatric center operated
by the Office of Mental Health staffed with personnel
adequately trained in security methods and so equipped
as to minimize the risk or danger of escapes. The
fo llowing fac il ities are secure fac ilities: Mid-Hudson
Psychiatric Center; Hutch ings Regional Forensic Unit;
Gowanda Regional Forensic Un it; and Manhattan
Forensic Unit." ( 14 NYCRR 541.1 [z]; emphasis added.)
It is obvious that in a secure facility a premium is placed
on security, confinement and prevention of escapes. In
contrast, in a nonsecure facility, since the defendant no
' I , l f v. ' I (•IT' 1 1 rs N I 1 • ' 1 •})
longer suffers fi·om a dangerous mental disorder and since
his transfer must, according to the regulations, be
consistent with public safety, a premium is placed not on
security and confinement, but on therapy and
rehabi litation. It would be anomalous to apply penal
sanctions to a departure from a faci lity which has, as its
primary goal, therapeutic treatment as opposed to
confinement.
The distinction between secure and nonsecure facilities
has previously been recognized by courts construing the
felony escape statute. For example, in Matter of Freeman
( 103 Mise 2d 649, supra), the court was confi·onted with
the issue whether a person alleged to be in need of
supervision (PINS) could "escape" from a detention
faci lity when, pursuant to recent changes in the law, she
could not be confined in a secure detention fac ility. The
court held that since the al leged PINS was held in a
nonsecure agency boarding home, she was not in
detention for the purposes of the criminal escape
provisions of the Penal Law (supra, at p 655).
The Freeman court (supra), adopting the reasoning of the
New Jersey comt in State in fnlerest of MS. (73 NJ 238,
374 A2d 445), noted that "[t]he crime of escape is an
affi·ont to the authority of the State. [I]t offends against
social order and the rule of law. A chi ld who runs fi·om a
[nonsecure] shelter .. . harms only his or her well being.
Such conduct cannot be considered the equivalent of the
crime of escape" (supra, at p 652.) (See also, Matfer of
Sylvia H., 78 AD2d 875 , supra, which held that a person
in need of supervision who runs away fi·om a Title II
nonsecure fac ility in which she has been placed cannot,
solely by virtue of that act be adjudicated a juven ile
delinquent in that she committed an act which if done by
an adult, would constitute the crime of escape in the
second degree.) *729
In direct contrast to the PINS situation are those cases
referred to above, dealing with escapes fi·om drug
treatment facil ities. In the latter instance, the security of
the faci lity was considered a priority and, consequently,
an escape from such faci lity was deemed a felony. As
stated by Justice Titone, if the Penal Law did not apply to
escapes fi·om drug rehabi litation facil ities: "it could
seriously undermine the narcotic rehabilitation program ...
Addicts would continually attempt to escape ... If they are
caught they lose relatively little, and if they are not, their
illegal end is accomplished. A facility would spend more
time concerning itself with these constant attempts than in
curing its patients." (People v Bifulco, 64 Mise 2d 10, 12,
supra.)
Given that Bronx Psychiatric Center is a nonsecure
l' ~' ( J( V I I fl I 1 VV J,l >
People v Ortega, 127 Misc.2d 717 (1985)
487 N.Y.S.2d 939
menta l health facility, where the primary emphasis is on
care, treatment and rehabi litation of the mentally disabled,
1 hold that it does not constitute a detention faci lity within
the meaning of Penal Law§ 205.00 (I) and § 205.10 ( 1 ),
and that an unauthorized departure therefrom does not
constitute felony escape.
(E) CPL article 330 and Valenza
Additional supp01t for this holding is found in the 1980
Insanity Defense Reform Act (embodied in CPL art 330),
and in the recent Court of Appeals decision in People v
Valenza (60 NY2d 363).
CPL article 330 contains comprehensive postverdict
procedures for the treatment of insanity acquittees. In
CPL 330.20, a "three track" procedure scheme is
established. (People v Flocklwrl. 96 AD2d 843 (2d Dept
1983].) The rules applicable to any particular insanity
acquittec are determined by the court, based upon a
finding of that person's condition at an initial hearing.
(CPL 330.20 [6].) If the District Attorney establishes that
the defendant is suffering IJ·om a dangerous menta l
disorder (CPL 330.20 [1] [c]), the court issues a
comm itment order, committing the defendant to a secure
facility under the jurisdiction of the Commissioner of
Mental Health (CPL 330.20 [I] [I]; [6]). Once this occurs,
the District Attorney is entitled to notice of all
proceedings relating to the defendant's retention, transfer,
conditional release, or discharge from such facility. The
District Attorney may request a hearing to challenge any
change in the defendant's facility or status (CPL 330.20
[8], [9], [I 0], [ 1 1 ], [ 12], [ 13]), and may veto any such
change if he can establish that the defendant is still
suffering from a dangerous mental disorder.
If a defendant is adjudged to be mentally ill but not
suffering fi·om a dangerous mental disorder, he falls
within a second *730 catcgo1y, and is subject to the
provisions of CPL 330.20 (7). Subdivision (7) requires the
court to issue an order of conditions and commit the
defendant to the custody of the Commissioner of Mental
Health. The latter order is deemed an involuntary civil
commitment made pursuant to Mental Hygiene Law
article 9. Significantly, the Mental llygiene Law does not
accord the District Attorney veto power with respect to a
patient's release from a mental hospita l, nor does it
authorize the District Attorney to participate as a party in
retention or re lease proceedings. (People v Flockhart,
supra, at p 845.)
Finally, if a defendant is found not to have a dangerous
mental disorder and not to be mentally ill, the court must
discharge the defendant either unconditionally, or subject
to an order of conditions (CPL 330.20 [7]).
Relevant to the present issue is CPL 330.20 (19) which
states: "Escape from custody; notice requirements. If a
defendant is in the custody of the commissioner pursuant
to an order issued under this section, and such defendant
escapes from custody, immediate notice of such escape
shall be given by the department facility staff to: (a) the
district attorney, (b) the superintendent of state police, (c)
the sheriff of the county where the escape occurred ... and
(I) any law enforcement agency and any person the
facility staff believes wou ld be able to apprise such
endangered person that the defendant has escaped from
the facility .. . The d~fendant may be apprehended,
restrained, transported to, and returned to the facility
fi'om which he escaped by any peace officer" (emphasis
added). Similarly, 14 NYCRR 54 1.12 sets forth the
measures to be taken in the event that a defendant, who
was found not responsible by reason of mental disease or
defect, leaves the grounds of a facility without prior
authorization. '" *731
Two important factors become apparent upon
examination of the above provisions: ( 1) the Legislature
has developed an elaborate statutory scheme for the
retaking of insanity acquittecs; and (2) under these
provisions, there is no mention of any criminal penalty
directed toward the escapee for his unauthorized
depar1ure. Rather, the Legislature merely directs the
return of the escapee to the psychiatric facility and does
not require the escapee's arrest and detention in a prison
on a criminal charge. These factors, analyzed in light of
People v Valenza (supra), prevent the District Attorney
from prosecuting Gilbert Ortega for felony escape.
In Valenza (supra), the Court of Appeals held that when a
vendor collects taxes from customers, but fails to remit
them to the State under circumstances evincing an intent
to permanently deprive the State of the taxes, he may not
be subject to criminal prosecution for larceny by
embezzlement. The court reasoned that the structure of
the penalty provisions of the Tax Law, coupled with the
Legislature's failure to consider the wrongful withholding
of sales taxes as criminal conduct, evinces an intent by the
Legislature to make the civil penalty the exclusive means
of punishing that conduct. The Valenza court emphasized
that when two or more statutes proscribe the same
conduct, a prosecutor may generally choose among the
statutes when initiating prosecution. However, "that
discretion may be limited by a legislative intention to
make a specific statute the exclusive means of punishing
particular conduct" (60 NY2d, at p 371; emphasis added).
The court further stated that "when the Legislature has
desired to make the breach of a statutorily imposed duty
People v Ortega, 127 Misc.2d 717 (1985)
487 N.Y.S.2d 939
punishable under the Penal Law, it has done so in an
unambiguous manner" (supra, at pp 370-371 ).
The Valenza (supra) rationale is applicable here. As
evidenced by CPL 330.20, the Legislature has enacted a
complex integrated amalgam governing the treatment of
insanity acquittees. *732
It has not seen fit to specifically ascribe criminal
sanctions when such individual elopes fro m a psychiatric
treatment faci li ty. Had the Legislature intended the
unauthorized departure to be criminal, it could have
effectuated such an intention in unambiguous terms by
simply incorporating the sanctions of Penal Law article
205 with in CPL article 330.
Indeed, in the past, when the Legislature meant to
penalize the escapes of persons undergoing treatment in a
rehabilitation fac ility, its pronouncement was
unmistakenly clear. By way of illustration, reference may
be made to New York's former drug law and cases
interpreting those statutes illustrating this principle. Under
the former drug Jaw, a defendant who was a narcotics
addict could be ce1tified to the care and custody of the
Narcotics Addiction Control Commission (Mental
Hygiene Law former §§ 206, 208, 2 11 ). Under Mental
Hygiene Law § 21 I (2), in effect prior to 1968, the
Legislature specifically provided that any defendant who
"while confined to a rehabilitation center, escapes
therefrom, is guilty of a misdemeanor." Upon revision of
that section, the Legislature demonstrated its intention to
continue to classify escapes by narcotics add icts as
criminal by retaining the designation of NACC faci lities
as detention facilities, with in the meaning of Penal Law
article 205 (see, 14 NYCRR former 1 000.5). In People v
B{/idco (64 Mise 2d I 0, supra) , the court acknowledged
that former Mental Hygiene Law was not intended to
supplant the Penal Law, due to the explicit
interrelationsh ip between the Mental Hygiene Law, the
Penal Law, and the NACC regu lations. As noted above,
the B(fitlco cowt held that a defendant who was civilly
committed under Mental Hygiene Law former § 206 to
the NACC and confined in a rehabili tation center
specifically designated as a detention facility, within the
meaning of the Penal Law, and who escapes therefrom,
may properly be indicted for fe lony escape (see also,
People ex ref. Farruggio v Nenna, 51 M isc 2d 229,
supra).
Therefore, it wou ld be a violation of the Valenza (supra)
ruling to adopt the practice of jurisdictions such as
Co lorado, Maine and Missouri, where criminal escape
provisions are appl ied to depa1tures by insanity
acquittees. If the New York Legislature intended to
'. ',I Ill IC
criminalize the escape of such an individual it could have
enacted (as did the Cal ifornia Legislature) a specific
statute clarifying that purpose.
I also reject the prosecutor's argument that People ex ref.
Powell v Warden (73 AD2d 654, supra) stands for the
proposition that a psych iatric facility can qualify as a
"detention faci lity" if *733 a court order requires the
defendant 's presence there. That case is inapposite for
two reasons: (I) since it deals with a CPL article 730
commitment and not with the escape of an insanity
acqui ttee, that court had no occasion to consider the
interplay between CPL 330.20 and Penal Law article 205;
and (2) when a person is committed pursuant to CPL
article 730, he sti ll has criminal charges pending against
him ; in contrast when a person is comm itted pursuant to
CPL article 330 he has been acquitted of all criminal
charges.
When drafting CPL 330.20 the Legislature could have
authorized prosecution of an insanity acqui ttee who
elopes from a psychiatric treatment faci lity. Since it did
not the Valenza rationale applies, "when the Legislature
has intended to make ... conduct [criminal] it has done so
clearly." (People v Valenza, supra, at p 370.)
(F) The Misdemeanor Count
The People argue that the dicta in People v Buthy (85
AD2d 890, supra) is controlling with respect to the
misdemeanor count. Specifically, the District Attorney
contends that since 01iega escaped from the custody of
the Commissioner of Mental Hygiene, and since the
Comm issioner is a public servant under whose restraint
defendant was placed by order of the court, defendant
may be charged with escape in the third degree. However,
the Buthy case preceded Valenza and in my view was
superseded by it.
The Valenza rationale discussed with regard to the felony
count applies with equal force to the misdemeanor count.
The fact that the Legislature makes no reference to penal
sanctions in CPL 330.20 reflects an intent to insulate
insanity acqu ittees fi·om all criminal prosecution for
escape. Had the Legislature intended to punish such
escapes as misdemeanors, it could have unambiguously
done so. Under Valenza it is not within the power of this
court to subject a defendant to any crim inal sanction
unless the Legislature's mandate in that regard is
unmistakably clear.
Finally, the District Attorney argues that since the escape
procedures outlined in CPL 330.20 are purely permissive
by implication the Penal Law provision may be
People v Ortega, 127 Misc.2d 717 (1985)
487 N.Y.S.2d 939
appropr iately applied.
Specifically he refers to the language in CPL 330.20 ( 19)
(t) which asserts that an insanity acquittal escapee "may
be apprehended, restrained, transported to, and returned to
[such institution]" (emphasis ad<;led). The use of the word
"may" according *734 to the prosecutor is merely an
alternative to the penal escape provision.
However, the statutory language in CPL 330.20 is exactly
the same as contained in Mental Hygiene Law, former
article 3, § 53, enacted in 1948 (amended in 1955) entitled
"Powers and dut ies of peace officers to apprehend,
restrain and transport persons to institutions". This on ly
buttresses the view that the person comm itted under the
Criminal Procedure Law shou ld be treated in the same
manner as the person committed under the Mental
Hygiene Law.
V. CONCLUSION
Gilbert Ortega cannot be prosecuted for his unauthorized
departure from Bronx Psychiatric Center. The Legislature
has spoken with respect to escapes by insanity acquittees
in CPL article 330. Since that statutory scheme is silent
w ith respect to penal sanctions, this court should not
Footnotes
impose them. In addition, the felony statute does not
apply in this case in any event; at no time did the
Legislature indicate that the term "detention faci lity"
should encompass a psychiatric institution which houses
an insanity acquittee. Indeed, that position is even more
compell ing here, inasmuch as Bronx Psychiatric Center is
a nonsecure faci lity, where the goal is therapy and
treatment, as opposed to confinement.
It is perfectly clear that the insanity acquittee is a legal
hybrid -- quasi criminal and quasi civil. Courts and
Legislatures may constitutionally apply more restraints
upon such an ind ividual than upon other mentally ill
persons. Indeed, CPL 330.20 is an example of this. They
must however be clear and well defined. The Legislature,
as in Califom ia, could pass a statute authorizing felony
prosecution of an insanity acquittee, who escapes from
either a secure or nonsecure facility. Such a statute is,
however, the province of the Legislature, not this court.
Defendant's motion to dismiss the indictment is granted.
*735
Copr. (C) 2017, Secretary of State, State ofNew York
The Federal Escape Act (18 USC§ 751 [a]) provides, in relevant part: "Whoever escapes ... from any custody under or
by virtue of any process issued under the laws of the United States by any court, judge, or magistrate, or from the
custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody or confinement is
by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned
not more than five years, or both".
3
4
5
6
w
DC Code Ann § 24-301 (d) states: "(1) If any person tried upon an indictment or information for an offense raises the
defense of insanity and is acquitted solely on the ground that he was insane at the time of its commission, he shall be
committed to a hospital for the mentally ill until such time as he is eligible for release".
DC Code Ann § 24-301 (h) provides: "the provisions of this section shall supersede in the District of Columbia the
provisions of any federal statutes or parts thereof inconsistent with this section."
Conn Gen Stat Ann § 53-a 169 (a) provides: "A person is guilty of escape in the first degree (1) if he escapes from a
correctional institution or (2) ... from any public or private, nonprofit halfway house, group home or mental health facility
... and he is in the custody of the commissioner of correction or is required to be returned to the custody of said
commissioner upon his release from such facili ty".
NJ Stat Ann § 2-A: 1 04-6 stated "Any person imprisoned or detained in a place of confinement, or being in the lawful
custody or control of a penal or correctional institution or of an officer or other person, upon any charge, indictment,
conviction or sentence for any crime or upon any writ or process in a civil action or proceeding, or to await extradition,
who by force or fraud escapes or attempts to escape from such place of confinement or from such custody or control,
or leaves the building or grounds of his place of confinement without the consent of the officer in charge, is guilty of a
misdemeanor."
NJ Stat Ann § 2C:29-5 deals with removing oneself without lawful authority from official detention Official detention is
defined as either arrest, detention in a faci lity for the custody of persons under charge or conviction of a crime, or who
has been alleged or found to be delinquent; or detention for a law enforcement purpose. (NJ Stat Ann§ 2C:29-5 [a].)
I ' I II
People v Ortega, 127 Misc.2d 717 (1 985)
487 N.Y.S.2d 939
10
Cal Penal Code § 1026.4 (a) states: "Every person committed to a state hospital or other public or private mental
health facility pursuant to the provisions of Section 1 026, who escapes from or who escapes while being conveyed to
or from the state hospital or facility, is punishable by imprisonment in the county jail not to exceed one year".
The Maine statute (17 Me Rev Stat Ann former § 1405) provided: "Whoever being lawfully detained in any jail or other
place of confinement ... breaks or escapes therefrom or attempts to do so shall be punished ... The sentence to such
imprisonment shall not be concurrent with any other sentence then being served".
14 NYCRR 541.7 (c) provides: "The application [for a transfer order] shall contain facts ... to substantiate the view that
the defendant does not have a dangerous mental disorder or that, consistent with the public safety and welfare of the
community and the defendant, the clinical condition of the defendant warrants transfer from a secure .. . to a nonsecure
facility."
14 NYCRR 541 .12 states:
"Escape. (a) In the event a defendant leaves the grounds of the facility without prior authorization or fa ils to return on
time from a furlough, the clinical director, the unit chief, the defendant's physician, the defendant's treatment team
leader or any other member of the facility staff shall immediately notify:
"(1) the district attorney of the county from which the defendant was committed;
"(2) the Superintendent of State Police;
"(3) the sheriff of the county where the facility is located;
"(4) the court which issued the order under which the defendant is currently being held;
"(5) the police department having jurisdiction of the area where the facil ity is located, of the area in which the defendant
last resided, of the area in which any person who might be harmed resides; and any other law enforcement agency the
clinical staff deem appropriate;
"(6) any person who may reasonably be expected to be assaulted or otherwise harmed by the patient;
"(7) the patient's immediate family;
"(8) the patient's attorney, if any; and
"(9) any person or entity the court that committed the defendant to the custody of the commissioner may have
designated in the order issued under [CPL] 330.20.
"(b) The director of Forensic Services and the Mental Health Information Service shall ... be notified immediately.
"(c) The notice shall be given as soon as the facility staff discover the defendant's absence, and shall include the
information necessary to identify the defendant and any person or person believed to be in danger and the nature of
the danger".
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