IN RE: the Application of Delano F. (Anonymous) (2026)

The following papers were read on petitioner's application for a writ of habeas corpus, pursuant to CPLR Article 70, seeking vacatur of a decision and order of the County Court, Suffolk County (Camacho, J.) which denied, without a hearing, his motion, pursuant to CPL 220.60, to withdraw his plea of not responsible by reason of mental disease or defect:

PAPERS NYSCEF DOCUMENTS

Petition/Writ/Memorandum of Law/Ex. A-I 1-12

People's Affirmation in Opposition/Memorandum of Law/Ex. A-C 22-26

Attorney General's Answer/Memorandum of Law/Ex. A-C 28-31

Affirmation in Reply 32

On March 14, 2016, in Suffolk County Court (Camacho, J.), petitioner pled not responsible by reason of mental disease or defect ("not responsible"), pursuant to CPL 220.15 to two counts of arson in the third degree, and he was subsequently committed to the custody of the Commissioner of Mental Health for confinement in a secure facility. Thereafter, in May 2017, petitioner moved to withdraw his plea, pursuant to CPL 220.60(3), claiming that statements he made during his plea allocution demonstrated that the plea was not knowing and voluntary, instead resulting from duress, namely, mistreatment and horrible living conditions he was experiencing while being held in Riverhead Correctional Facility, in Suffolk County.

In a decision and order, dated August 30, 2017, (NYSCEF 25) Suffolk County Court Judge Fernando M. Camacho denied the motion without a hearing. Judge Camacho found, based on the transcript of the plea proceeding and his personal recollections of both the statements petitioner made at that time and multiple prior conferences during which the possibility of petitioner entering a plea of not responsible had been extensively discussed, that petitioner's statements reflected a desire to go to a facility where personnel were properly trained and equipped to help him with his condition, in contrast to treatment he would receive in any penal facility, rather than anything specific to Riverhead Correctional Facility. Judge Camacho further found that an affidavit that petitioner had submitted in support of the motion included a statement concerning petitioner's understanding about where he would ultimately be held that was inconsistent with the record, and that petitioner had failed to present an affidavit from his plea counsel. In light of those facts and circumstances, Judge Camacho denied the motion without a hearing.

Petitioner subsequently sought to appeal the denial of his CPL 220.60(3) motion and, in a decision and order dated October 2, 2019, the Appellate Division, Second Department, dismissed the appeal (People v Delano F., 176 AD3d 736 [2d Dept 2019]). In doing so, the Court found that the denial of petitioner's motion was not subject to appellate review because "although the Legislature amended CPL 220.60 to permit motions to withdraw a plea of not responsible by reason of mental disease or defect, no avenue for appeal of the denial of such motions existed, and none was created, at the time the statute was amended" (id. at 738-739). The Court of Appeals denied petitioner's application for leave to appeal from that dismissal (People v Delano F., 34 NY3d 1158 [2020]).

On May 26, 2021, petitioner filed a federal habeas corpus petition. In a Decision and Order, signed October 25, 2023, the United States District Court for the Southern District of New York (Philip M. Halpern, J.) found that, under federal law, a petitioner challenging a state court's order denying their motion to withdraw or vacate a not responsible plea must exhaust all of the available state remedies before they can obtain federal review of that decision (Delano F. v Sini, No. 21-CV-04734 (PMH), 2023 WL 7039591 [SDNY Oct. 26, 2023], adopting report and recommendation No. 21 Civ 4734(PMH)(PED), 2023 WL 7304824 [SDNY May 18, 2023], subsequent appeal dismissed, No. 23-7848, 2024 WL 2704082 [2nd Cir, March 27, 2024], reconsideration denied, No. 23-7848, 2024 WL 2704084 [2nd Cir, April 23, 2024]). The District Court further concluded that "[p]etitioner's pursuit of an unauthorized appellate remedy following denial of his motion by a trial court cannot be viewed as full exhaustion, at least not where [p]etitioner had recourse to an additional state remedy that would enable appellate review," namely, a state habeas petition (id.).

Petitioner remains in the custody of respondent Kristin Orlando, Psy.D., Director of the Mid-Hudson Forensic Psychiatric Center, located in Orange County, New York. Petitioner seeks vacatur of the Suffolk County Court's August 30, 2017 decision and order and, thereafter, vacatur of his plea, maintaining that it was not knowing, intelligent and voluntary.

At the outset, there is a threshold question: whether a writ of habeas corpus is available to petitioner in this matter. Respondents argue that a writ is inappropriate because petitioner's claims, if established, would not entitle him to his immediate release. Yet, where a defendant has entered a not responsible plea and been committed to the Commissioner of Mental Health's custody, but then held without receiving a timely retention hearing, they are generally entitled to challenge the legality of their continued detention by applying for a writ, notwithstanding the fact that they will not be entitled to their immediate release if successful (People ex rel. Thorpe v Von Holden, 63 NY2d 546, 554-555 [1984]). This is because the right to invoke habeas corpus is "a primary and fundamental one," (People v Schildhaus, 8 NY2d 33, 36 [1960]; see U.S. Const., art. I, § 9; NY Const., art. I, § 4), which cannot be abrogated by legislative action, except in emergency situations (People ex rel. DeLia v Munsey, 26 NY3d 124, 130 [2015]).

As the Second Department recognized in dismissing petitioner's appeal, "although the Legislature amended CPL 220.60 to permit motions to withdraw a plea of not responsible by reason of mental disease or defect, no avenue for appeal of the denial of such motions existed, and none was created, at the time the statute was amended" (People v Delano F., 176 AD3d 736, 738—739 [2d Dept 2019]). A holding that habeas corpus relief is unavailable to a not responsible defendant whose CPL 220.60 motion has been denied would allow the Legislature to accomplish by inaction, whether intentional or not, what it could not do otherwise, and effectively preclude any review of the plea court's decisions to first accept the plea and, thereafter, deny the application for its withdrawal (People ex rel. DeLia v Munsey, 26 NY3d at 130). Thus, as the United States District Court for the Southern District of New York correctly concluded, a state habeas petition is the appropriate means for petitioner to obtain review of the denial of his CPL 220.60(3) motion.

Of course, "[d]efendants who, after entering a plea of guilty, unsuccessfully move pursuant to CPL 220.60 to withdraw their plea, proceed to sentencing and may thereafter obtain appellate review of the denial of their motion to withdraw the plea upon an appeal from the judgment" (People v Delano F., 176 AD3d at 737). Insofar as this proceeding amounts to a stand-in for such an appeal, both the extent of the fact-finding inquiry and the ultimate decision whether to allow a defendant to withdraw their plea are committed to the sound discretion of the trial court and will not be disturbed on appeal, absent an improvident exercise of that discretion (People v Brown, 14 NY3d 113, 118 [2010]; People v Etienne, 193 AD3d 971 [2d Dept 2021]; People v Jemmott, 125 AD3d 1005, 1006 [2d Dept 2015]). Although petitioner asks this Court to vacate not only the plea court's denial of his CPL 220.60(3) motion, but also the underlying plea, a successful appeal from such a denial would result in a remittal for a hearing on the withdrawal motion and, accordingly, the same specific relief should be available to petitioner here (see People v Brown, 14 NY3d 113, 118 [2010] [circumstances raised genuine factual questions that could only be resolved after a hearing]; People v Adamo, 174 AD3d 1228 [3d Dept 2019]; People v Hollmond, 170 AD3d 1193 [2d Dept 2019]).

At the same time, petitioner's CPL 220.60(3) motion was filed well after he entered his plea and included an expanded record reflecting that fact, and a far more substantial period of time has since passed. Such circumstances might make this proceeding more analogous to a CPL 440.10 post-judgment motion to vacate a plea—which is also unavailable to petitioner—especially in light of the fact that CPL 220.60(3) includes no time limit, legal or effective, for a defendant who will never be "sentence[d]" (see People v Francis S., 8 Misc 3d 534, 536 [Sup Ct, New York County 2005 ]["there is no 'judgment' which could properly be the subject of a motion pursuant to CPL 440.10"] see also CPL 440.10[1][e]; People v Tiger, 32 NY3d 91, 98-99 [2018] [statutory scheme allows collateral attacks on convictions in a framework of delineated procedural limitations, with ten specific grounds, in most cases without time limits]; People v Adamo, 174 AD3d 1228 [3d Dept 2019]). For this reason, it should also be recognized that the same standard of appellate review applies when a trial court exercises its discretion to summarily deny such a motion without a hearing (People v Fredericks, 43 NY3d 551, 561 [2025]; see also CPL 440.10[3]; People v Edmee, 183 AD3d 759, 760-761 [2d Dept 2024]). The relief available on a successful appeal would be the same, as well (People v Adamo, 174 AD3d at 1231).

Turning to the merits of petitioner's claim, as the parties agree, a not responsible plea is the functional equivalent of a guilty plea (People v Copeman, 77 AD3d 1187 [3d Dept 2010]). To be deemed voluntary it must "represent[ ] an informed choice freely made by defendant among other valid alternatives" (People v Brown, 14 NY3d at 116). A motion to withdraw a plea will not be granted for the asking, and a defendant's unsupported claims of innocence, illness and confusion are insufficient to satisfy their burden of proof (People v Alexander, 97 NY2d 482, 485 [2002]; People v. Fiumefreddo, 82 NY2d 536 [1993]). Where a defendant does offer evidence in support of their motion, a court assessing the voluntariness of the plea must consider both the complete record and the circumstances of the plea as a whole (People v Sougou, 26 NY3d 1052, 1055 [2015]). Of course, the court accepting a plea is in the best position "to assess [firsthand] whether defendant was alert and knowledgeable enough to plead guilty voluntarily" (People v Alexander, 97 NY2d at 486). This is why the nature and extent of the fact-finding inquiry rest largely in the discretion of the court considering a CPL 220.60 motion, and why a hearing will be granted only in those rare instances in which the record raises a question about the plea's voluntariness (People v Brown, 14 NY3d at 116; People v White, 235 AD3d 912, 913 [2d Dept 2025]).

Here, as noted above, the plea court found, based on its prior interactions with petitioner, that his references to his treatment in Riverhead Correctional Facility "express[ed] his desire to take a not responsible plea because he wanted to go someplace where people are trained and equipped to help him; rather than a penal facility where the manifestation of his mental health issues would subject him to punishment and mistreatment" (NYSCEF 25, p.5). That is, the plea court concluded that petitioner's complaints were not unique to Riverhead Correctional Facility, as reflected in petitioner's statements during the plea allocution that he didn't "like being jailed" there, because he had been "in cuffs and shackles for eight months for tossing the milk," and "just had an incident" where he "lobbed an apple" (NYSCEF 24, p.26-27). The plea court also noted that petitioner had not made any references to the conditions in Riverhead Correctional Facility during prior appearances or examinations, and that any claim that petitioner had been misinformed about the fact that he would be sent to a secure facility was inconsistent with the record, and that petitioner had not submitted an affidavit from plea counsel. Particularly because the plea court participated in the detailed plea allocution, it was in the best position to assess petitioner's state of mind, and its denial of petitioner's motion without a hearing was a provident exercise of discretion (People v Brown, 14 NY3d at 116; People v Alexander, 97 NY2d at 486; see also People v Baksh, 75 AD3d 846, 847 [3d Dept 2010] [defendant did not demonstrate duress where he had denied being forced, threatened or coerced to plead guilty during allocution, had not mentioned any threats or coercion to his attorney, the District Attorney, the correction officers, or the court, and waited more than a year after his release to file motion]).

Separately, petitioner also argues that the plea transcript demonstrates that, particularly in light of his recent treatment history, he was not competent to enter his not responsible plea. It is clear that this issue was not raised in petitioner's CPL 220.60(3) motion, which was addressed to the question of "whether a plea can be considered truly voluntarily taken if it is accepted to avoid inhumane living conditions" (NYSCEF 4, p.26). Were this a direct appeal, the issue would thus be unpreserved for review (CPL 470.05; People v Rios, No. 13, 2026 NY Slip Op 00963 [Ct App, Feb. 19, 2026]; People v Lende, 190 AD3d 1110 [3d Dept 2021]; People v Davis, 186 AD3d 852 [2d Dept 2020]).

In any event, the fact that a defendant has a recent history of mental illness—as a majority of defendants pleading not responsible necessarily do—does not, without more, require a trial court to hold a CPL 730 hearing, and such a history also does not necessarily render a defendant incompetent to enter a knowing and voluntary plea (People v Edwards, 223 AD3d 840, 842 [2d Dept 2024], leave to appeal denied, 41 NY3d 982 [2024]). "[T]he opinion of a psychiatrist and the defendant's medical records indicat[ing] that the defendant had a history of mental illness" are insufficient to warrant a hearing on a CPL 220.60 motion when they do not establish a "basis in the record to support the conclusion that, at the time of the plea proceedings, the defendant lacked the capacity to understand the nature of the proceedings or the consequences of his plea" (People v White, 235 AD3d 912, 913 [2d Dept 2025]). "[N]or is a subsequent finding of mental illness evidence of a lack of competency during the subject time period [quotation marks omitted]" (People v Park, 159 AD3d 1132, 1133 [3d Dept 2018]).

Here, as petitioner emphasizes, reports prepared shortly after his plea detailed his serious mental health issues. Among other things, Dr. Vincent R. Giannone's May 10, 2016, report indicates that:

"[T]hroughout the [April 16, 2016] interview [petitioner] looked at his attorney when answering questions rather than interviewer. His affect appeared mildly depressed and constricted. He initially answered in soft tone of voice with short goal directed statements but as the interview progressed he became more circumstantial, vague and difficult to follow. He needed to be redirected to the question at hand but continued to have difficulty remaining focused and goal directed. As the interview progressed his thinking became more incoherent and disorganized."

(NYSCEF 4, p.151). Similarly, Dr. Jacqueline A. Berenson's May 12, 2016, report states that, during their interview:

"[Petitioner] was polite and did try to stay focused on the questions he was being asked but despite effort, this was not possible. If not interrupted, [he] would talk on and on with no sign of returning to the question at hand and providing meandering and at times incoherent information, demonstrating a clear thought disorder. Again and again he was asked to focus on the questions being asked but he was not even able to stay focused and relevant when providing basic personal history."

(NYSCEF 4, p.133).

In both instances, however, petitioner's reported behavior was contrary to what the plea court recalled at the time of petitioner's subsequent CPL 220.60(3) motion and, more importantly, what is reflected in the plea minutes. As the plea court highlighted, the colloquy was extensive. Throughout, petitioner's answers were consistently relevant and responsive to the questions asked. He gave succinct answers to questions about his personal and medical histories, provided a detailed history of his living arrangements that came to a straightforward conclusion, identified defense counsel, the judge and the prosecutor and explained their roles, acknowledged conversations with defense counsel, described the factual allegations against him in general terms, and then acknowledged his understanding of the consequences of entering the plea, including the rights he was giving up and the procedures that would ultimately be followed, with simple "yes" answers.

While petitioner's statements during the plea allocution were not inconsistent with his diagnosed condition, that fact does not outweigh or nullify the relevance and reasonableness of his answers when they are properly viewed in totality (People v Sougou, 26 NY3d at 1055). For example, petitioner's statement that he was prepared to tell the court that the fires happened as a result of his mental illness, as opposed to his being "very aware of what [he] was doing" (NYSCEF 24, p.18) did not indicate that petitioner did not understand what he was doing in pleading guilty, or what conduct he was admitting to, particularly because an admission of guilt was not a component of the not responsible plea. Nothing in the record supports a conclusion that petitioner's condition "so stripped him of orientation or cognition that he lacked the capacity to plead guilty" (People v Alexander, 97 NY2d at 486). Because petitioner's responses were appropriate, his history of mental illness, even if it included some inability to remember the charged conduct, did not indicate that he was incapacitated when he entered the plea (People v Spencer, 156 AD3d 731, 732 [2d Dept 2017]), and nothing about the plea proceedings established "a reasonable basis upon which to believe that defendant was incapable of understanding the proceedings, incompetent or otherwise incapacitated to enter a knowing and voluntary plea or that a CPL article 730 competency hearing was warranted [quotation marks omitted]" (People v Mahood, 238 AD3d 1433, 1435 [3d Dept 2025], leave to appeal denied, 44 NY3d 983 [2025]; see also People v Edwards, 223 AD3d at 842; People v White, 235 AD3d at 913). For the same reasons, petitioner also fails to show that defense counsel was ineffective, in that "[petitioner] received an advantageous plea and nothing in the record casts doubt upon the apparent effectiveness of counsel" (People v Arce, 196 AD3d 696 [2d Dept 2021]; compare People v Bailey, 232 AD3d 1031, 1038 [3d Dept 2024], leave to appeal denied 43 NY3d 929 [2025]).

In sum, petitioner has not demonstrated that the denial of his CPL 220.60(3) motion without a hearing represented an improvident exercise of the plea court's discretion or that, upon reviewing the record, the court should have exercised its discretion to order a hearing based on the issue of his mental competency at the time of the plea. The petition is denied and dismissed.

The foregoing constitutes the Decision and Order of this Court.

Dated: August 28, 2026

Goshen, NY

E N T E R:

HON. BRETT BROGE, J.S.C.

Brett Broge, J.