For the Petitioner: Richard R., pro se Caroline Levitt, Esq., stand-by counsel For the Respondents: Christopher W. Schlecht, Esq.
For the Petitioner: Richard R., pro se
Caroline Levitt, Esq., stand-by counsel
For the Respondents: Christopher W. Schlecht, Esq.
Louis P. Gigliotti, J.
The pending proceeding was brought pursuant to Mental Hygiene Law (MHL) § 10.09. Petitioner Richard R. currently resides at Central New York Psychiatric Center (CNYPC) after a prior finding by this Court that he is a "dangerous sex offender requiring confinement." (See MHL § 10.03(e) ). Richard R. represents himself, following this Court's ruling on his motion to proceed pro se , with Mental Hygiene Legal Service (MHLS) serving as stand-by counsel.
As part of the scheduling order issued by the Court in preparation for the annual review hearing, Richard R. submitted a proposed witness list that was received by the Court on November 13, 2017. Included with his list was a request for subpoenas for five named CNYPC employees to appear as witnesses and to bring certain documents with them. The Court treated this request as a motion for court-ordered subpoenas pursuant to CPLR § 2302. The State timely filed its response papers on November 29, 2017.
While this motion was pending, and two weeks before the scheduled start of the annual review hearing, the Court received a second motion from Richard R. seeking summary judgment. The State timely filed its response papers on November 29, 2017. Richard R.'s reply papers were filed on December 4, 2017. Although the deadline in the scheduling order for filing reply papers was December 1, 2017, the Court accepted Richard R.'s late submission.
Upon review of the motion papers, the Court determined no oral argument would be necessary. That being said, insufficient time existed to issue a decision prior to the start of the hearing on December 6, 2017. Since the State had previously arranged for its two expert witnesses to be present in Court to testify on that day, the Court reserved decision on the motions and advised the parties that it would proceed with hearing the State's case since no prejudice to Richard R. would result. At the conclusion of matters for that day, the State rested. The Court adjourned the remainder of the proceeding until February 28, 2018.On January 31, 2018, the Court received Richard R.'s motion for directed verdict. The State responded by filing papers on February 6, 2018.
On February 28, 2018, the Court ruled from the bench on the pending motions, with this written decision to follow. The motions are addressed not by filing date, but by order of potential impact upon the proceedings. The Court therefore begins by discussing the motion for summary judgment since, if granted, the decision would moot consideration of the remaining motions.
Motion for Summary Judgment
Richard R. seeks summary judgment on the grounds that this Court lacks subject matter jurisdiction over his case because the statute of limitations has expired. MHL § 10.09(d) provides in pertinent part that "[t]he court shall hold an evidentiary hearing as to retention of the respondent within forty-five days if it appears from one of the annual submissions under [ § 10.09(c) ] ... that the respondent has petitioned, or has not affirmatively waived the right to petition, for discharge ...." MHL § 10.09(c) requires the commissioner of the state Office of Mental Health (OMH) to submit to the Court the annual notice presented to a civilly confined resident of the right to petition for discharge and form to exercise or waive that right, along with the commissioner's written determination as to dangerousness and the OMH psychiatric examiner's report. The relevant timeline for this particular case is as follows:
07/22/2016 Richard R. signs his annual notice of his right to petition for discharge, indicating that he does not wish to waive his right.
08/05/2016 Richard R. is offered, but declines, an interview with OMH psychiatric examiner Joan Sincavage, Ph.D.
08/11/2016 MHLS files an omnibus motion on behalf of Richard R., seeking inter alia to have George Annas, M.D., M.P.H., appointed as the independent examiner.
08/19/2016 The State files a response to the omnibus motion.
08/24/2016 Dr. Sincavage issues her written report.
08/25/2016 The OMH commissioner issues a written determination that Richard R. remains a dangerous sex offender requiring confinement.
09/01/2016 OMH files the written determination and the psychiatric report with the Oneida County Clerk's Office, in accordance with MHL § 10.09(c).
09/02/2016 Pursuant to nunc pro tunc language in this Court's order dated December 24, 2015, Richard R.'s annual review date is 09/02/2016. (See MHL § 10.09(b) [providing that the annual examination of a respondent's mental condition is to be made at least once every year "calculated from the date on which the supreme or county court judge last ordered or confirmed the need for continued confinement"] ). As outlined above, by this date Richard R.'s annual review has been completed and his annual review proceedings initiated in Supreme Court.
09/20/2016 The Court signs the omnibus order submitted on behalf of Richard R.
01/20/2017 Dr. Annas, the independent examiner, interviews Richard R.
03/25/2017 Dr. Annas issues his written report, finding Richard R. to be a "dangerous sex offender requiring confinement."
04/18/2017 MHLS files a notice of petition for an annual review hearing with the Supreme Court Clerk's Office.
04/24/2017 The Court issues a scheduling order, setting the hearing for
08/02/2017, which is the first available date on the Court's calendar.
05/05/2017 The Court confirms with counsel that the parties are set to proceed on 08/02/2017, and issues an order to produce.
07/24/2017 Chambers receives a letter from Richard R., asking to relieve MHLS as counsel and proceed pro se .
07/26/2017 Chambers receives a letter from the Attorney General's office, advising as to the State's position relative to Richard R.'s request.
07/27/2017 The Principal Court Attorney writes Richard R. to advise that if he wishes to proceed with his motion, the hearing date will be adjourned because insufficient time exists to address the matter prior to 08/02/2017. The letter advises Richard R. of the process that would be involved if his motion were to be heard, and indicates the next available date to schedule his hearing is 12/06/2017.
07/31/2017 Chambers receives a letter from Richard R. expressing his desire to proceed with his motion and objecting to the delay in holding his hearing.
08/02/2017 Through a letter from the Principal Court Attorney, MHLS is given a date to respond to the motion to be removed from the case.
08/16/2017 MHLS advises the Court of its position relative to Richard R.'s motion.
08/23/2017 Chambers receives a letter from Richard R., setting forth his reply in support of his motion.
10/02/2017 The Court issues a written decision indicating that an inquiry will be made of Richard R. on October 25, 2017 as to his ability to represent himself.
10/25/2017 The inquest is held; the Court finds Richard R. is capable of representing himself, but appoints MHLS as standby counsel; Richard R. signs a written waiver of his right to attorney representation; and the Court issues a scheduling order. Contained within that order is a directive that the hearing will commence on 12/06/2017, the same date represented in the Principal Court Attorney's letter dated 07/27/2017.
Richard R. reasons that because his hearing did not commence prior to the "annual review date" of September 2, 2016, he has been unlawfully detained from that date forward.
What Richard R. misunderstands however, is that the "annual review date" is the date by which OMH was to calculate the timing for his mental condition evaluation by a psychiatric examiner. It is not an expiration date for his order of commitment. In this case, OMH completed Richard R.'s evaluation before September 2, 2016.
Richard R. also fails to comprehend that his annual evaluation is the starting point for his annual review proceeding, not its ending. For example, had Dr. Sincavage's written report determined Richard R. no longer has a mental abnormality, and had the OMH commissioner agreed, no reason for an annual review hearing would exist. The State would have timely met its statutory obligation, and Richard R. would have no need for court review. Since however, Dr. Sincavage and the OMH commissioner determined that Richard R. is a dangerous sex offender requiring confinement, Richard R. can invoke his right to have an annual review hearing, which he has done. That hearing is necessarily going to occur after the deadline for the annual mental condition examination. The statute by design, therefore, does not envision that a hearing will be conducted annually. It does not even envision a mental condition examination occurring every calendar year, since MHL § 10.09(b) defines the timing for such examination as one year from the date on which a court last ordered or confirmed the need for continued confinement, or the date on which a respondent waives his right to petition for discharge, whichever is later. The statute instead provides that a respondent is to be provided with a mental condition examination within a year of the latest date upon which the authority to confine was granted (either by a court or voluntarily by the respondent).
As for the provision in MHL § 10.09(d) that a hearing shall be held within 45 days if a respondent has petitioned or not affirmatively waived the right to petition for discharge, notably the statute does not explicitly define when to start calculating the 45–day time period. Even assuming in this case that the clock began to run when OMH filed its papers on September 1, 2016, the Court could not have held a hearing within 45 days (i.e. , October 15, 2016) because the independent examiner appointed at Richard R.'s request had not finished his report by then. In fact, Richard R. was not interviewed until January 2017, and Dr. Annas did not issue his report until March 25, 2017. Richard R.'s notice of petition and petition, which are envisioned under MHL § 10.09(d), were filed April 18, 2017. At best, this date could be considered the start of the 45–day time period.
The Court issued a scheduling order setting a date for Richard R.'s annual review hearing less than a week after his petition was filed. Although the proposed date was more than 45 days away, demands on a court calendar constitute excusable delay in criminal proceedings where a speedy trial is statutorily and constitutionally guaranteed. (See People v. Simmons , 252 A.D.2d 825, 826, 675 N.Y.S.2d 467 [3d Dept. 1998] ; see also People v. Vargas , 152 Misc. 2d 377, 381–82, 576 N.Y.S.2d 989 [Sup. Ct., Bronx County 1991] ). The Court finds the same considerations apply here.
As for the adjournment of the original hearing date of August 2, 2017, this action was taken entirely as the result of the Court receiving Richard R.'s motion to proceed pro se less than 10 days before his hearing was to begin. Richard R. has offered no explanation as to why he chose to wait nearly three months after his petition was filed to make such a motion. Moreover, Richard R. was advised that if he wanted his motion decided, it would necessitate a delay in his hearing. He was given exact parameters of such a delay so that he could make an informed choice about how to proceed. Richard R. explicitly stated that he wanted his motion heard. He cannot now try to benefit from this decision by claiming the Court has no jurisdiction to conduct his annual review hearing.
Richard R.'s hearing began on December 6, 2017 as rescheduled, notwithstanding his pending summary judgment motion. Important to note is that the State has been ready to present its evidence since the OMH commissioner filed the determination, notice of waiver and Dr. Sincavage's report on September 1, 2017. Delays since that date have been attributable either to decisions made by Richard R. relative to his annual review hearing or the Court's own calendar. As such, Richard R.'s request for summary judgment is DENIED.
Motion for Directed Verdict
When the hearing commenced on December 6, 2017, the State called as witnesses both Dr. Sincavage and Dr. Annas. Various documents were also received into evidence, including the doctors' written reports. The State rested at the conclusion of the proceedings for that day.On January 17, 2018, Richard R. filed a motion for a directed verdict. When considering such a motion, "the court must view the evidence in the light most favorable to the nonmoving party and resolve all issues of credibility in favor of the nonmoving party ... and may grant the motion only if there is no rational process by which the jury could find for the plaintiffs as against the moving defendant." ( Wolf v. Persaud , 130 A.D.3d 1523, 1524–25, 14 N.Y.S.3d 601 [4th Dept. 2015] [internal citations omitted] ). The Fourth Department has made clear over time that directed verdicts at the close of the State's proof in an annual review proceeding under MHL article 10 are disfavored. (See , e.g. , Matter of Suggs v. State of New York , 142 A.D.3d 1283, 39 N.Y.S.3d 553 [4th Dept. 2016] ; Matter of Wright v. State of New York , 134 A.D.3d 1483, 22 N.Y.S.3d 741 [4th Dept. 2015] ).
The written reports of both Dr. Sincavage and Dr. Annas, as well as their oral testimony, set forth the bases for their having diagnosed Richard R. with pedophilic disorder. The evidence explains why the doctors concluded Richard R. is predisposed to conduct constituting a sex offense, and why they believe Richard R. has an inability to control his sex offending behavior. (See MHL § 10.03(i) [definition of mental abnormality]; MHL § 10.03(e) [definition of dangerous sex offender requiring confinement] ). Taking this evidence in the light most favorable to the State, and affording these doctors the required presumption of credibility, the Court finds the State has presented sufficient evidence to allow this case to proceed. Richard R.'s motion for a directed verdict is therefore DENIED.
As noted previously, Richard R. identified five CNYPC employees whom he would like to call as witnesses during his annual review hearing. He also requested each employee bring certain documents when they testify. Since Richard R. is not an attorney, he has no authority to issue a subpoena as a lawyer would. (See CPLR § 2302 ). The Court therefore treated Richard R.'s letter as a motion for court-issued subpoenas and advised the parties of same by correspondence from the Principal Court Attorney dated November 14, 2018. The State was given an opportunity to submit response papers and timely did so.
Within those response papers, the State noted that Richard R. has no need for subpoenas duces tecum because he has the ability under MHL § 33.16 to request and review records from CNYPC. The State contended that because the Court made Richard R. aware of this procedure during the October 25, 2017 examination, and because Richard R. provided no detail as to whether he availed himself of this procedure, Richard R. should not now be allowed to circumvent the statute by subpoenaing the records from CNYPC employees. In a letter dated December 10, 2017, Richard R. represented that he would request those records to which he has access. The Court therefore considers this part of Richard R.'s request to be WITHDRAWN. Richard R. however, also indicated the witnesses may want to bring papers from a "secret file" that he believes CNYPC maintains on each resident. Without proof such a file exists, and without reason to believe Richard R. has been denied access to documents otherwise accessible to him through MHL § 33.16, the Court DENIES this aspect of Richard R.'s motion. With respect to the request for witness subpoenas, the State noted that Richard R.'s request did not include payment for statutory witness fees, which are to be given to each witness at the time the subpoenas are served. The State further contends that the proposed witnesses can offer no relevant testimony. In his December 10, 2017 letter, Richard R. offered to pay the witness fees from money he earns while working at CNYPC. As for relevance, Richard R. argued that CNYPC employees know him better than either of the expert witnesses who were called, because CNYPC staff see him on a daily basis. At the Court's invitation, the State replied by letter dated January 8, 2018. The State reiterated its argument as to relevance, as well as raised concerns as to whether the subpoenas would be harassing to the employees, disruptive to the facility and interfere in the relationship between Richard R. and his treatment providers.
In a letter dated January 15, 2018, Richard R. claimed this Court has held article 10 respondents do not have a right to see records at CNYPC and thus he will never be able to access the "secret file" he is subpoenaing through the witnesses. Richard R. is referring to this Court's decision in Matter of Robert V. v. State of New York , 52 Misc. 3d 613, 31 N.Y.S.3d 827 (Sup. Ct., Oneida County 2016) and misrepresents the holding in that case. Patients such as Richard R. do have a right to inspect their own clinical records, subject to certain limitations outlined in MHL § 33.16. This Court held in Robert V. that an attorney for a petitioning resident could not sidestep the statute by deciding himself or herself which mental health records to disclose. As to the existence of a "secret file" somehow exempt from the statute, Richard R. has not substantiated this allegation.
Since no cases were cited in support of the State's arguments, the Court's own research uncovered a case that appears to be closely on point to the situation here. In Empire Wine & Spirits LLC v. Colon , 145 A.D.3d 1157, 43 N.Y.S.3d 542 (3d Dept. 2016), the petitioner had been charged by the New York State Liquor Authority with counts of improper conduct. To support its defenses to these charges, the petitioner issued subpoenas to obtain the testimony of several senior officials within the Liquor Authority. These officials refused to testify based upon advice of counsel. The petitioner brought a proceeding to compel compliance, while the officials cross-moved to quash the subpoenas. The trial court upheld the subpoenas, which ruling was affirmed on appeal. The Appellate Division dismissed as "premature" the State's argument that the subpoenas sought "irrelevant, cumulative and otherwise improper information." ( Id. at 1159, 43 N.Y.S.3d 542 ). As in this case, "[w]hen no specific questions have yet been posed, an objection on the basis of relevance is so speculative." ( Id. ). The Court described as both speculative and irrelevant the argument that allowing the subpoenas to stand could become burdensome for the agency in future enforcement proceedings involving other parties. (See id. at 1159–60, 43 N.Y.S.3d 542 ).
The Empire Wine decision makes clear that "a subpoena will be quashed only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry." ( Id. at 1159, 43 N.Y.S.3d 542 [internal quotation marks and citation omitted] ). No such showing has been made here. MHL article 10 annual review hearings held before this Court routinely incorporate evidence of how a resident is conducting himself at CNYPC. Progress notes and incident reports are introduced as documentary evidence, including in this case. It is not inconceivable that the CNYPC employees whom Richard R. wishes to call as witnesses could present relevant testimony in this regard.
That being said, the ability to call these witnesses does not give Richard R. a license to go beyond what is permitted testimony in accordance with the rules of evidence. As the Court advised Richard R. during his appearance on February 28, 2018, he could very well pay to have these witnesses appear without successfully eliciting any testimony should the State raise sustainable objections. These matters however, are best addressed in the context of the hearing when specific questions are asked of the witnesses. Accordingly, Richard R.'s request for court-issued subpoenas for witness testimony is GRANTED.
The Court will coordinate efforts to secure payment of the witness fees and service of process fees in advance of issuing the subpoenas.
For the reasons stated within this Decision and Order, it is hereby
ORDERED that Richard R.'s motion for summary judgment is DENIED; and it is further
ORDERED that Richard R.'s motion for a directed verdict is DENIED; and it is further
ORDERED that Richard R.'s motion for court-issued subpoenas duces tecum , to the extent it has not been withdrawn, is DENIED; and it is further
ORDERED that Richard R.'s motion for court-issued subpoenas ad testificandum is GRANTED; and it is further
ORDERED that the court record of this proceeding be sealed by the Oneida County Clerk's Office and made available only to the parties in this proceeding, except that this Decision and Order shall be available for usage in redacted form, as to Richard R.'s identifying information, by the parties and counsel to this proceeding (to include MHLS) for use in other MHL article 10 matters, or upon further order of this Court.
This constitutes the Decision and Order of the Court.