On June 26, 1969 the defendant was arrested in Queens County and charged with grand larceny. He subsequently petitioned to be adjudicated a narcotic addict pursuant to section 210 of the Mental Hygiene Law. Since he met the conditions set forth in section 210, his civil commitment under section 206 was ordered on August 25, 1969. The Narcotic Addiction Control Commission (the "Commission") placed him at the Arthur Kill Narcotic Rehabilitation Center for treatment. The grand larceny charge was dismissed as provided in subdivision 3 of section 210 of the Mental Hygiene Law.
On October 11, 1969 he allegedly escaped from the Arthur Kill facility, and he was indicted for the crime of escape in the second degree. He now moves to dismiss the indictment, contending that a civilly committed addict cannot legally be indicted for escape from a detention facility and that the escape section of the Penal Law is inapplicable.
Research discloses only two cases in this area, each reaching a contrary result, which are discussed, infra.
The Penal Law defines escape in the second degree at section 205.10:
"A person is guilty of escape in the second degree when:
"1. He escapes from a detention facility".
Section 205.00 (subd. 1) says a "detention facility" means any place used for the confinement, pursuant to an order of a court, of a person (a) charged with or convicted of an offense, or (b) charged with being or adjudicated a youthful offender, wayward minor or juvenile delinquent, or (c) held for extradition, or (d) otherwise confined pursuant to an order of a court." And, section 1000.5 of title 14 of the Official Compilation of Codes, Rules and Regulations of the State of New York (14 NYCRR 1000.5) states:
"The following facilities designated for the supervision of narcotic addicts are hereby declared to be detention facilities within the meaning of this Part and of Article 205 of the Penal Law.
(a) Commission facilities:
(14) Arthur Kill Rehabilitation Center".
It seems clear that the Center at Arthur Kill is a "detention facility" as defined in section 205.00 of the Penal Law, that the defendant was there pursuant to an order of a court, and that his alleged departure on October 11 falls squarely within the Penal Law's definition of escape in the second degree.
The defendant points out that subdivision 1 of section 211 of the Mental Hygiene Law requires the Commission to establish regulations concerning the custody, release, etc. of addicts certified to its care, and that subdivision 2 provides that one who escapes while confined in a Commission facility shall be declared a delinquent and that such a declaration "shall interrupt the period of the commitment". Subdivision 3 gives the Commission the power to issue a warrant for the arrest of an escapee.
All this appears to have no relevance to the fact that the defendant is guilty of escape in the second degree, if the allegations in the indictment are proved. No statutory provision or legislative history or case has been cited which justifies a claim that the Mental Hygiene Law or the regulations of the Commission were intended to supplant the escape provisions of the Penal Law. In fact, former subdivision 2 of section 211 of the Mental Hygiene Law provided that a criminally convicted addict who escaped from a Commission facility would be guilty of a misdemeanor. This provision was specifically repealed by ...