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PEOPLE STATE NEW YORK v. JAMES MALLOY (12/04/68)

CRIMINAL COURT OF THE CITY OF NEW YORK, NEW YORK COUNTY 1968.NY.43741 <http://www.versuslaw.com>; 296 N.Y.S.2d 259; 58 Misc. 2d 538 December 4, 1968 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.JAMES MALLOY, ROBERT HOGUE, GREGORY BRYANT, FREDERICK JOHNSON, RONALD ROBINSON, AND RANDOLPH HARVIN, DEFENDANTS Frank S. Hogan, District Attorney (Ermyn Stroud of counsel), for plaintiff. Anthony Marra and Salvatore Farruggio for defendants. Amos S. Basel, J. Author: Basel


Amos S. Basel, J.

Author: Basel

 On June 9, 1968 at about 1:00 a.m. at the center operated by the Narcotics Addiction Control Commission, hereinafter referred to as NACC, at 232 East 12th Street, defendants Johnson, Robinson, Harvin were arrested. They were voluntary residents of that community, as certified addicts, civilly committed under section 206 of the Mental Hygiene Law. They were apprehended allegedly in the moment of an attempted escape.

On July 12, 1968 the defendants Hogue, Bryant and Malloy also certified as addicts under a voluntary civil commitment, did in fact escape from the same rehabilitation center.

All six cases are submitted together, for they raise common questions of law upon similar facts. A joint motion to dismiss as a matter of law on grounds defendants should not have been arrested, for no criminal proceedings lie, is here considered. All are accused of escape or attempted escape. (There are some additional minor charges lodged against four defendants.)

The prosecution is based upon section 205.10 of the Penal Law which reads as follows:

"A person is guilty of escape in the second degree when:

"1. He escapes from a detention facility; or "2. Having been arrested for, charged with or convicted of a felony, he escapes from custody."

Escape in the second degree is a class E felony.

Section 205.00 defines the term "detention facility" in subdivision 1: "Any place used for the confinement, pursuant to an order of a court, of a person * * * (d) otherwise confined pursuant to an order of a court." The practice commentary specifically refers to the NACC as a detention facility described and covered in paragraph (d) of subdivision 1 above.

Conviction of a class E felony carries a maximum penalty of four years' incarceration.

Defendants Johnson and Robinson at the time of their certification had criminal proceedings pending against them. Subdivision 1 of section 206 of the Mental Hygiene Law under which they were certified provides "no person who has pending against him a criminal action, shall be certified to the commission pursuant to this subdivision". But no court proceeding by way of habeas corpus or otherwise had been brought by them to terminate the order as invalid when they were arrested.

We encounter these questions: (1) can a prosecution under section 205.10 of the Penal Law be successful when defendant is being held under a current but invalid order of commitment and escapes from detention; (2) can one who is voluntarily incarcerated under a valid order of civil commitment be charged with a class E felony if he escapes from "treatment in a controlled environment" (Mental Hygiene Law, ยง 200, subd. 3) a mental health facility.

The questions are discussed in reverse order.

The law which created the NACC is an exciting venture in banishing addicts from the prison system, which has proven for them an abundant failure in reinstating them in society as useful participants. This law treats drug users as psychologically disturbed persons, not to be punished, but to be restored to mental health, if possible. The Legislature has recognized that clanging prison gates do not toll the knell for addiction. The habit hibernates during incarceration and survives it. Drug addicts evermore propel themselves through a revolving door of addiction, crime and prison. Most of them hold society for ransom when they are at large; in order to provide ...


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