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MATTER NARCOTIC ADDICTION CONTROL COMMISSION (07/02/68)

COURT OF APPEALS OF NEW YORK 1968.NY.42469 <http://www.versuslaw.com>; 240 N.E.2d 29; 22 N.Y.2d 545 decided: July 2, 1968. IN THE MATTER OF THE NARCOTIC ADDICTION CONTROL COMMISSION, RESPONDENT. PAUL JAMES, AN ALLEGED NARCOTIC ADDICT, APPELLANT Matter of James, 29 A.D.2d 72, reversed. Counsel William E. Hellerstein and Mary B. Tarcher for appellant. Louis J. Lefkowitz, Attorney-General (Samuel A. Hirshowitz and Maria L. Marcus of counsel), for respondent. Keating, J. Chief Judge Fuld and Judges Burke, Breitel and Jasen concur; Judges Scileppi and Bergan dissent and vote to affirm on the prevailing opinion at the Appellate Division. Author: Keating


Matter of James, Keating, J. Chief Judge Fuld and Judges Burke, Breitel and Jasen concur; Judges Scileppi and Bergan dissent and vote to affirm on the prevailing opinion at the Appellate Division.

Author: Keating

 This case presents for our consideration an attack upon the constitutionality of the procedural and substantive provisions of the Narcotic Control Act of 1966 as they relate to the compulsory treatment of addicts who have neither been charged nor convicted of criminal activity.

Pursuant to section 206 (subd. 2, par. a) of the Mental Hygiene Law "[any] person with whom an alleged addict may reside or at whose house he may be, or the husband or wife, father or mother, brother or sister, or the child or the nearest relative available, or anyone who believes that a person is a narcotic addict, or a person believing himself to be a narcotic addict, may apply for an order certifying such person to the care and custody of the [Narcotic Addiction Control] commission [for rehabilitative care and treatment for up to three years], by presenting a verified petition [to a Justice of the Supreme Court or a Judge of the County Court], setting forth knowledge, information or belief that such person is a narcotic addict, together with a statement of the facts upon which such knowledge, information or belief is based."

The statute goes on to provide that, upon presentation of the petition, the Judge or Justice to whom it is presented may question under oath the petitioner or any witness to determine whether there are "reasonable grounds" to believe that the person in whose behalf the petition is made is an addict. If the court believes that such reasonable grounds are present, it shall issue an order directing the addict "(i) to appear at a specified time and place and undergo a medical examination, and (ii) to appear before the judge or justice * * * not * * * more than five days after the date of such examination". (Mental Hygiene Law, § 206, subd. 2, par. b.)

The statute also provides that, if there are reasonable grounds to believe that the alleged addict would not comply with the order, the court may issue a warrant directing that the person named be taken into custody, deposited with the commission for examination and, following such examination, be brought before the court.

The statute requires that, upon the conclusion of the medical examination, the commission personnel conducting the examination must transmit a copy of their report to the Judge or Justice who ordered the examination. If, after reviewing the report, the Judge or Justice finds that there is reasonable ground to believe that the person examined is a narcotic addict, he must advise the person of this finding, give him a copy of the petition and report and explain that, if he is found to be an addict, he may be certified to the care and custody of the commission for an indefinite period not exceeding three years. The court must also advise the alleged addict that he is entitled to a hearing at which he may have the assistance of counsel and that, if he is unable to afford an attorney, the court will appoint one for him.

If, after holding a hearing pursuant to a request, the Judge finds the person to be an addict, he must grant an order certifying the person to the care and custody of the commission for an indeterminate term of up to three years.

The addict may, within 30 days after the order of certification, apply to a Justice of the Supreme Court -- other than the Justice who made the order -- "for a review of such order". The Justice receiving such application "shall thereupon cause a jury to be summoned and shall proceed to try the question of the narcotic addiction" (Mental Hygiene Law, § 206, subd. 7).

Shortly after the Narcotic Control Act became effective, Mrs. Anna James appeared at the Supreme Court (New York County) and alleged in a petition that her son Paul had admitted to her that he used heroin regularly, that he had needle marks on his body and that she believed that he was "dependent upon opium, heroin, morphine, or a derivitive or synthetic drug of that group".

The petition also alleged that she believed that her son would not voluntarily comply with an order of the court to report for a medical examination and a hearing on the issue of addiction. The basis of her belief was the prior refusal of her son to have any medical treatment and the fact that he had beaten her up in the past for failing to provide him with money for drugs and that he might do so again.

Upon this affidavit, a Justice of the Supreme Court issued an order for the arrest of Paul James who was picked up and deposited at a facility operated by the Narcotic Addiction Control Commission. There he underwent a 20-minute examination and was detained three days prior to being brought before the court. The examining physician concluded that James was an addict and so reported to the court. The court advised James of his rights pursuant to the statutory provisions enumerated earlier, and James requested a hearing. The hearing was held some 10 days later, and James was certified to be an addict by a Justice of the Supreme Court. Within 30 days thereafter, James sought a jury trial as provided by subdivision 7 of section 206. A trial was held, and the jury found him to be an addict.

The Supreme Court (Trial Term), following the verdict, ordered James released from custody upon the ground "that the procedure mandated by section 206 of the Mental Hygiene Law for the compulsory apprehension and detention of James, an alleged narcotic addict, on an ex parte application, whether by order or warrant, is clearly in violation of his constitutional rights." (54 Misc. 2d 514, 538-539.) The Appellate Division (one Justice dissenting and one Justice concurring in result) reversed the order of the Supreme Court. The appellant appeals to this court from the order of the Appellate Division.

On this appeal appellant argues, first, that the provisions requiring compulsory commitment are unconstitutional for the reason that they authorize the commitment of a person, who has not been convicted of any crime, without a showing that he is dangerous to himself or others or that he has lost his self-control so as to be in need of institutional confinement.

This argument might have some merit if the construction placed upon the statute by the appellant is correct. The statute defines an addict as "a person who is at the time of examination dependent upon opium, heroin, morphine or any derivative or synthetic drug of that group or who by reason of the repeated ...


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