IN RE: a Subsequent Retention Order pursuant to CPL § 330.20 in relation to E.T. (2025)

Background

In 1988, Respondent E.T. brutally sexually assaulted his half-sister, a child at the time. He was eventually involuntarily confined in a secure facility. A recommitment order was issued by the Richmond County Supreme Court on July 28, 2024, and a subsequent retention order was issued by the New York County Supreme Court on March 18, 2024. On September 29, 2025, a hearing was held on the application of Petitioner Kirby Forensic Psychiatric Center, who was seeking a subsequent retention order pursuant to CPLR § 330.20. Petitioner was represented by the New York Attorney General's Office, and the Office of the Kings County District Attorney was also present for Petitioner. At the conclusion of the hearing, this Court found that Petitioner had failed to meet its burden of showing by a preponderance of the evidence that Respondent had a dangerous mental disorder necessitating his continued confinement in a secure treatment facility and ordered that he be transferred to a civil state hospital for continuing confinement. The NYAG sought permission to submit written briefing in favor of obtaining a judgment notwithstanding the verdict (“JNOV”), and the Kings County DA noted that they intended to join the appeal request. A briefing schedule was set. During this time, the NYAG informed the Court in writing that they no longer intended to pursue an appeal and that they take no position on the stay or appeal. The Kings County DA has submitted papers arguing for a JNOV but has not argued in favor of a stay. For the reasons that follow, the request for a JNOV is denied.

Discussion

Given the context of what the Court of Appeals has referred to as a “stepped-down system of confinement options” when considering CPL § 330.20 defendants, the question before the Court in the September Hearing was whether Respondent had a “dangerous mental disorder” such that would necessitate retention in a secure facility over transfer to a civil, non-secure facility. See In re David B., 97 NY2d 267, 277 [2002]. In either case, Respondent will continue to be confined due to mental illness.

The Standard of Review

CPLR § 330.20(c) defines dangerous mental disorder (“DMD”) as meaning that the defendant currently suffers from a mental illness and “because of such condition he currently constitutes a physical danger to himself or others.” The State bears the burden of demonstrating by preponderance of the evidence that the defendant has a DMD, and as a basic proposition the trier of fact's determination in this matter is accorded deference. In re George L., 85 NY2d 295, 303, 305 [1995]. The standard for reversing a trial court's finding that a defendant did not suffer dangerous mental disorder and therefore may be transferred to a non-secure facility is whether that determination was “unsupported by any fair interpretation of the evidence.” Therefore, the instant consideration is whether there is any fair interpretation of the evidence presented that supports a finding that the Petitioner failed to meet their burden, by preponderance of the evidence, that Respondent currently constitutes a physical danger to himself or others.

Relevant Factors

The Court of Appeals has addressed the issue of what factors can go into the determination of current threat by noting that “[t]he prosecution may meet its burden [ ] for example, by presenting proof of a history of prior relapses into violent behavior, substance abuse or dangerous activities upon release or termination of psychiatric treatment, or upon evidence establishing that continued medication is necessary to control defendant's violent tendencies and that defendant is likely not to comply with prescribed medication because of a prior history of such noncompliance or because of threats of future noncompliance.” George, at 308. At the September hearing, the Court noted that factors it found relevant in finding that the burden had not been satisfied included that the Respondent had been taking his medication without any incident, that there had not been any violent incident for several years, and that Respondent testified that he was aware that what he had done was wrong and that he understood consent. The Court also noted that the Respondent had been hospitalized for about 36 years compared to the maximum incarceration for the underlying offense but clarified that such a factor was “not necessarily relevant.”

Petitioner, in arguing that the determination was against any fair interpretation of the evidence, contends that the Court considered several factors improperly. First, Petitioner argues that it was improper to consider the length of time that Respondent has been institutionalized, especially in comparison to an incarceration sentence for the underlying offense. The United States Supreme Court has noted that there “is no necessary correlation between severity of the offense and length of time necessary for recovery. The length of the acquittee's hypothetical criminal sentence therefore is irrelevant to the purpose of his commitment.” Jones v. United States, 463 U.S. 354, 369 [1983]. But this does not mean that a court cannot consider the length of time since the original offense as part of the overall DMD consideration. The Court of Appeals specifically mentioned the “length of confinement and treatment [and] the lapse of time since the underlying criminal acts” as relevant factors. David, at 279. The First Department has held that a court may consider the “nature and recency of the criminal act” as part of the CPL § 330.20 determination. Consilvio v. Alan L., 7 AD3d 252, 256 [1st Dept. 2004]. Here, the fact that the Court gave consideration to the length of time since the original offense and the length of time that Respondent had been confined and undergoing treatment was not improper.

The Respondent Did Not Need to Provide Expert Testimony

Petitioner had an expert testify at the hearing, and provided a unanimous report from the Forensic Committee, all of whom did not believe that Respondent should be released to a non-secure facility. Petitioner argues that the Court erred in not ruling in accordance with what it terms unrebutted expert testimony. First, that the Court gave a certain weight to the conclusions of the medical experts in question and gave a certain weight to the verifiable incidents (or lack thereof) presented by Petitioner in determining that the State had not met its burden does not mandate a JNOV. The question is not whether a reasonable person could have ruled in accordance with the expert testimony, but whether the Court's ruling went against any fair interpretation of the evidence. And the evidence presented at the hearing could be fairly interpreted to support the Court's conclusion. Respondent has been attending therapy sessions, reported his recent hallucination, has demonstrated some insight into his condition, admitted responsibility for the offense, takes his medication and has stated intent to continue treatment, and has not had any violent or verifiable sexual incident in years. That the Court and the expert gave different weight to factors such as Respondent falling asleep during group therapy, giving a somewhat incoherent testimony, and reporting the hallucination only to the doctor and not facility staff does not reach the standard of beyond any fair interpretation of the evidence.

There is also the issue raised of whether any expert testimony rebutting Petitioner's expert testimony is necessary in order to support the Court's ruling. While the First Department has, in determining that a defendant should not be released to a non-secure facility, repeatedly given emphasis to unrebutted expert testimony by the State, to the Court's knowledge they have never held that it is a mandatory requirement for the defendant to have their own expert. The cases where unrebutted expert testimony was a crucial factor are all distinguishable, in that there were other factors present that are missing here. For instance, in Consilvio, the defendant was deemed to present a current danger in part because the defendant had recently committed several violent sexual offenses, had no insight, offered no remorse, and never acknowledged responsibility. Consilvio, at 256. In Carpinello, the defendant had been involved in 15 violent incidents, including several that occurred shortly before the trial court's determination. Matter of Carpinello v. Floyd A., 23 AD3d 179, 181 [1st Dept. 2005]. And in Matter of Kirby, the defendant denied the seriousness of the offense, refused to accept responsibility for the offense, and lacked insight into his condition. Matter of Kirby Forensic Psychiatric Facility v. Karmi K.W., 211 AD3d 532, 532 [1st Dept. 2022]; see also Matter of State of NY Off. of Mental Health v. Jared C., 115 AD3d 437, 438 [1st Dept. 2014] (noting that the defendant had recently engaged in violent and sexually assaultive conduct and lacked insight into his condition). These factors are not present in the instant matter. If it was the case that where there is no competing expert testimony offered by a Defendant a court must affirm the State expert's conclusion, then it necessarily follows that a hearing before a judge would be a mere rubber-stamp in cases where a defendant does not have an expert available to testify on their behalf. Such an interpretation is not supported by statute or case law.

Ultimately, the Court's finding that the Petitioner failed to meet their burden of showing that the Respondent is a current danger to himself or others cannot be said to be against any fair interpretation of the evidence. That reasonable people could have found otherwise or given greater deference to the expert testimony does not mean that there is no fair interpretation of the evidence presented that supports the Court's determination. Therefore, the request for a judgment notwithstanding the verdict is denied. This constitutes the Decision and Order of the Court.

And, due deliberation thereon being had, the court having found;

That the above-named defendant E. T. does not have a dangerous mental disorder as that term is defined in paragraph (c) of subdivision one of CPL 330.20 and that the issuance of a Transfer Order is consistent with the public safety and welfare of the community and the defendant, and that the clinical condition of the defendant warrants his transfer from a secure psychiatric center to a non-secure psychiatric center.

It is hereby,

ORDERED, over the objection of the State Commissioner of Mental Health, that the Commissioner of Mental Health is directed to transfer the above-named defendant from a secure psychiatric center to a non-secure psychiatric center under the jurisdiction of the said Commissioner or to any non-secure psychiatric center designated by the said Commissioner; and it is further

ORDERED that the above-named defendant shall comply with his or her treatment plan, and shall not leave that psychiatric center without authorization, and it is further,

ORDERED, that the above-named defendant shall comply with the following conditions:

1. Submit to random screenings as directed.

2. Abstain from use of alcohol and substance use.

And it is further,

ORDERED, that the above-named defendant comply with this Inpatient Order of Conditions for a period of five years from the date the date of the issuance of this order, unless the court shall sooner terminate this order, or unless the court, for good cause shown, shall extend the period for an additional five years.

Lyle Frank, J.