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April 14, 1972

Luis GOMEZ et al., Plaintiffs,
Alan D. MILLER, Commissioner of Mental Hygiene of the State of New York, et al., Defendants

The opinion of the court was delivered by: LASKER

LASKER, District Judge.

This civil rights class action raises important questions as to the constitutionality of the New York statutes under which persons indicted for felony may be held untried in New York State's Matteawan and Dannemora Hospitals -- generally known as hospitals for the "criminally insane."


 All the plaintiffs have been indicted for felony but none has been tried or convicted. Each has been committed to Matteawan on a certification of incompetency to stand trial. Gomez and DeMundo were sent to Matteawan in 1970 and 1971, respectively. Metesky has been in custody there since 1957 and Ingram since 1966. *fn1" They bring this action under 42 U.S.C. § 1983 for a declaration of the unconstitutionality of § 662-b of the New York Code of Criminal Procedure (CCP) and certain portions of its successor, Article 730 of the New York Criminal Procedure Law (CPL), McKinney's Consol. Laws, c. 11-A, and for injunctive relief. Jurisdiction is predicated on 28 U.S.C. §§ 1343(3), 2201 and 2202, the Fourth Amendment to, and Article 4, § 1, Clause 1, of the United States Constitution. Their major contention is that the procedure (of both statutes) violates the equal protection and due process clauses of the Fourteenth Amendment because it does not afford them a jury trial as to dangerousness as a prerequisite to commitment. They also attack the provisions of both statutes which (1) permit nonresidents of the state to move to dismiss the underlying indictment ten days after a finding of incompetency upon a showing that such nonresident will be removed to the state of his residence, while allowing New York residents such a right only after two years of continuous confinement, and (2) require permission of the district attorney to move for dismissal of the indictment.

 New York operates two classes of hospitals for the mentally ill, one controlled by the Department of Mental Hygiene, the other by the Department of Correction. Matteawan and Dannemora fall in the latter group. The differences between the two classes are real, and have been noted by the courts. In United States ex rel. von Wolfersdorf v. Johnston, 317 F. Supp. 66 (S.D.N.Y. 1970), in which plaintiff sought transfer from Matteawan to a civil hospital, Judge Frankel stated (citing Neely v. Hogan, 62 Misc. 2d 1056, 310 N.Y.S. 2d 63, 67-68 (Sup. Ct. N.Y. Co. 1970)): "There is no question that the place where this relator is now held . . . is vastly different from -- i.e., more miserable than -- state hospitals for those civilly committed." And the Court of Appeals of this Circuit referred to "the adversities and rigors" of Dannemora in United States ex rel. Schuster v. Herold, 410 F.2d 1071, 1078-1079 (2d Cir. 1969), cert. den. 396 U.S. 847, 90 S. Ct. 81, 24 L. Ed. 2d 96 (1969).

 As recently as February 24, 1972, in In the Matter of the Application for the Commitment of Anonymous, an Alleged Dangerously Mentally Ill Patient, to Matteawan State Hospital, 69 Misc. 2d 181, 329 N.Y.S. 2d 542, the Supreme Court of New York County emphasized the distinction between Matteawan and civil hospitals operated by the Department of Mental Hygiene as follows:

"It is significant that the Mental Hygiene Law charges the Department of Mental Hygiene with 'treatment' of its patients, thus recognizing a right to treatment. (See MHL Secs. 71, 72, 75, 76, 78). No such duty is imposed on the Department of Correction by the Correction Law or the Mental Hygiene Law. Its hospitals are 'solely for the purpose of holding in custody and caring for such mentally ill persons * * *' (Correction L. Sec. 400(1); * * *.)
* * *
"There are other differences, indicative of a prison setting. Greater restrictions are placed on persons held at Matteawan, including: (1) those relating to correspondence between inmates and relatives, friends, public officials and the Mental Health Information Service (Cf. Correction L. Sec. 413 and MHL Sec. 15 and 14 N.Y.C.R.R., Mental Hygiene, 21.1, 21.2 and 21.4); (2) those concerned with visitation by relatives and friends and access to the Mental Health Information Service (MHIS), (Cf. Correction L. Sec. 413 and 14 N.Y.C.R.R., Mental Hygiene, part 57)." *fn2"

 Plaintiffs claim that a person indicted, but untried, may not constitutionally be committed to the "rigors" of a hospital run by the Department of Correction except upon a jury determination that he is dangerous. They do not dispute that members of their class, if found incompetent, may be committed to a civil hospital without such a finding. If granted the relief they seek, plaintiffs would continue at Matteawan if found dangerous by a jury, but otherwise would be transferred to a civil hospital. Unless found competent to stand trial, none would be released.


 The Statutory Scheme

 The (new) CPL has become effective since the commencement of this suit. The CPL did not in haec verba repeal the CCP or other statutes governing the commitment of mentally ill persons. It does provide at § 1.10 that "[the] provisions of this chapter apply to (a) all criminal actions and proceedings commenced prior to the effective date thereof but still pending on such date . .," and the Attorney General of New York has construed the new law to apply to plaintiffs' cases on the ground that their indictments were still pending on the effective date of the statute. *fn3" Nevertheless, the question whether the old law still governs is not free from doubt, and accordingly we must examine both statutory schemes.

 A. Commitment Provisions

 With one minor exception, under the old statutory arrangement no person other than members of the plaintiffs' class may be committed to Matteawan unless found to be dangerously mentally ill and accorded various safeguards, including a de novo jury trial as to dangerousness. The classes thus protected are:

 Persons not charged with crime (§ 85 Mental Hygiene Law, McKinney's Consol. Laws, c. 27);

 Persons charged with crime but not indicted (§ 872 Code Cr. Proc.);

 Persons acquitted on the ground of mental disease or defect (§ 454 Code Cr. Proc., as interpreted by the New York Court of Appeals in People v. Lally, 19 N.Y. 2d 27, 277 N.Y.S. 2d 654, 224 N.E. 2d 87 (1966)).

 The exception applies to convicted prisoners serving their terms for whom the applicable statute provides a de novo jury trial merely as to competence, but not as to dangerousness.

 In the case of the plaintiffs' class, the governing statute, § 662-b Code Cr. Proc., makes no provision for a determination as to dangerousness, by jury or otherwise, or for the rights accorded convicted prisoners, *fn4" such as jury trial as to competence, notice to relatives, or periodic review of mental condition.

 Under the new CPL, which in various sections incorporates § 85 of the Mental Hygiene Law by reference, a jury trial as to dangerousness is required as a condition to ...

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