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February 24, 1998

FRANCIS S., Petitioner, against JAMES STONE, etc., et al., Respondent.

The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 Petitioner Francis S. assaulted a police officer with a knife and then pleaded not responsible by reason of mental disease or defect. As a result, he was committed to the custody of the Commissioner of Mental Health (the "Commissioner"), eventually released on an order of conditions, but then recommitted after a determination by the state courts, affirmed by the New York Court of Appeals, that he suffered from a "dangerous mental defect."

 Petitioner now challenges the constitutionality of the New York statutory scheme on the theory that it improperly permitted his recommitment on a showing less demanding than would have been required to commit one not previously acquitted of criminal charges by reason of a mental condition. He contends also that the standard applied by the New York Court of Appeals in affirming the recommitment order was unconstitutional because it permits the perpetual confinement of persons like himself. Additionally, he asserts that the manner in which the state proceedings were commenced "shocks the conscience" and therefore violated the substantive component of the Due Process Clause. Finally, he argues that the evidence supporting his recommitment was so insufficient as to make the recommitment order inconsistent with the Due Process Clause.

 This Court holds that the challenge to the New York recommitment scheme as applied to petitioner is without merit. Those acquitted of crimes by reason of insanity are distinguishable from persons subject to civil commitment proceedings, and the Constitution does not require that the two groups be treated identically in all circumstances. Petitioner's suggestion that his release on an order of conditions terminated the state's ability to recommit him under the provisions applicable to insanity acquittees also does not withstand analysis. His attacks on the standard applied by the New York Court of Appeals and the sufficiency of the evidence are similarly unavailing, and his contention that he was deprived of due process of law by the manner in which the state commenced the recommitment proceeding was procedurally defaulted by his failure to raise that contention in the state courts.


 New York's Recommitment Scheme

 A New York criminal defendant has the burden of establishing by a preponderance of the evidence lack of criminal responsibility by reason of mental disease or defect. *fn1" A defendant may avail himself of this defense only after the state has proven every element of the crime, including defendant's mental state, beyond a reasonable doubt. *fn2"

 Initial Examination of Acquittee

 Following a determination of not guilty by reason of mental disease or defect, Section 330.20 of the Criminal Procedure Law requires that two qualified psychiatrists examine the acquittee for the existence of a dangerous mental disorder or mental illness. *fn3" The psychiatric examiners then submit reports to the Commissioner who forwards them to the court which accepted the plea or verdict. *fn4" Within ten days of the court's receipt of the reports, the court must hold an initial hearing to determine the acquittee's present mental condition. At the hearing, the district attorney has the burden of establishing by a preponderance of the evidence that the acquittee currently has a dangerous mental disorder or, alternatively, is mentally ill. *fn5" The acquittee has a dangerous mental disorder if he suffers from a mental illness *fn6" and, because of that condition, constitutes a physical danger to himself or others. *fn7"

 If the court is persuaded that the acquittee has a dangerous mental disorder, it must issue a commitment order pursuant to which the acquittee is placed in a secure psychiatric facility for six months. *fn8" If it determines that the acquittee does not suffer from a dangerous mental disorder but is mentally ill, *fn9" it must issue an order of conditions and an order committing the acquittee to the care of the Commissioner. *fn10" Finally, if the court finds that the acquittee suffers from neither a dangerous mental disorder nor a mental illness, the court must discharge the acquittee, either unconditionally or under an order of conditions as described above. *fn11"

 Retention Applications

 Once an acquittee has been committed to a secure facility, the Commissioner must timely apply for subsequent orders of retention. *fn12" The court must hold a hearing on a recommitment application if requested by the district attorney, the acquittee or his counsel, or the mental hygiene legal service and may do so on its own motion in the absence of any request. In order to retain the acquittee, the Commissioner must establish "by a fair preponderance of the evidence" that the acquittee remains dangerously mentally ill. If the Commissioner meets this burden, the court then orders the acquittee's retention in the secure facility. If not, but the Commissioner establishes that the acquittee is mentally ill, the court must order the acquittee transferred to a non-secure facility. *fn13" Finally, if the Commissioner establishes neither, then the court must sign a release order and enter an order of conditions. *fn14"


 Recommitment of an acquittee who is released, at any point in the process, on an order of conditions is accomplished through CPL § 330.20(14). CPL § 330.20(14) provides that at "any time during the period covered by an order of conditions an application may be made by the commissioner or the district attorney . . . for a recommitment order when the applicant is of the view that the defendant has a dangerous mental disorder. . . . If the court finds [after a hearing] that the defendant has a dangerous mental disorder, it must issue a recommitment order."

 Petitioner's Recommitment

 Background -- The Initial Commitment

 Petitioner's journey through the maze of the criminal and mental health systems has been long and arduous. *fn15" Petitioner has been arrested at least twenty-six times, primarily for violent and threatening behavior. He has pleaded guilty to conduct such as assault in the third degree, for brandishing a ten-inch metal pipe at a restaurant bartender and patrons and then biting the officer who asked him to leave, and criminal mischief, for kicking in the glass panel door at another restaurant and beating a metal pipe on the bar while threatening to kill the bartender.

 The incidents giving rise to this petition began in 1983, when petitioner happened onto the scene of drug raid and was arrested after refusing police requests to the leave the scene. As he was placed under arrest, petitioner pulled out a six-inch knife and thrust it at an officer. Consequently, he was charged with attempted assault in the first degree *fn16" and criminal possession of a weapon in the third degree. *fn17" However, petitioner was released from custody and engaged in criminal conduct in New Jersey which resulted in his arrest and confinement at a psychiatric center there from May 1984 until April 1986. Following his release from that psychiatric facility, petitioner was charged with drunk driving after he drove his vehicle into a parked car in New York, causing a multi-vehicle accident. Shortly thereafter, he was arrested also for possession of heroin, to which he pleaded guilty, and served a short sentence.

 On August 7, 1987, petitioner pleaded not responsible by reason of mental disease or defect pursuant to CPL § 220.15 in full satisfaction of the indictment pending against him for the 1983 incident and in return for dropping the drunk driving charge against him. In compliance with CPL § 330.20, New York State Supreme Court Justice Alfred Kleiman immediately held a hearing in which he determined that petitioner was mentally ill but not suffering from a dangerous mental disorder. He ordered petitioner committed to the custody of the Commissioner for 120 days in a non-secure facility, and consequently petitioner was sent to the South Beach Psychiatric Center ("South Beach"). Justice Kleiman issued also a five year order of conditions which required petitioner to comply with the terms and conditions of the treatment plan prescribed by the Office of Mental Health. On December 7, 1987, Justice Kleiman's commitment order expired. Petitioner was then discharged to out-patient care on an order of conditions.

 The First Recommitment Application

 In May 1988, due to petitioner's alleged violation of the order of conditions, the Commissioner sought to recommit petitioner to a secure facility. On January 23, 1990, the Office of Mental Health located petitioner, whose whereabouts had been unknown to it for some time, and he was committed to Kirby Forensic Psychiatric Center for examination. Two psychiatrists, after examining petitioner, agreed that he suffered from a dangerous mental disorder. Supreme Court Justice Kenneth Shorter then held a hearing and concluded that petitioner remained mentally ill but did not suffer from a dangerous mental illness as defined in CPL § 330.20(1)(c). Justice Shorter therefore denied the recommitment application but ordered petitioner held in a non-secure facility and amended his order of conditions to specifically forbid the use of alcohol, non-prescribed controlled substances and illegal drugs. Petitioner was discharged from the non-secure facility to an outpatient clinic on November 4, 1990.

 The Second Recommitment Application

 After petitioner was discharged, he was arrested on three separate occasions from June 1991 to July 1992 and charged with violently kicking and pushing a police officer, kicking the doors and windows of a police car, head-butting a police officer and kicking him in the groin, and physically breaking the windshield and door window of his girlfriend's car during the course of an argument, among other things.

 In view of the fact that petitioner had left South Beach in 1987, it is not surprising that he failed to appear on August 26, 1992. The Commissioner then applied for an arrest warrant pursuant to CPL § 330.20(14). Counsel for petitioner objected, contending that the recommitment application and the order to appear had not been served properly upon petitioner and that the application should be dismissed outright. The court adjourned the case until September 9, 1992. to allow for proper service. On August 28, 1992, the Commissioner filed and served an identical recommitment application and a new notice to appear. This time, notice of both the recommitment application and the notice to appear were sent to petitioner at 510 Harvard Avenue, Baldwin, New York, by certified mail. Nevertheless, on September 9, 1992, petitioner again failed to appear before the court and an arrest warrant was issued. On September 10, 1992, petitioner was brought into the custody of the Commissioner.

 Supreme Court Justice Edith Miller held a hearing on the recommitment application from November 18, 1992 until January 25, 1993. She concluded that petitioner was mentally ill and had violated his order of conditions, as he repeatedly had done in the past. She concluded also that petitioner, if released, would continue his uncontrollable behavior and that he would not comply with any treatment plan or abstain from drug and alcohol abuse. Justice Miller attributed any good behavior that petitioner had exhibited during the hospital stay to his desire to be discharged from the hospital and his medication regime. She found also that petitioner was intrusive, demanding, argumentative, manipulative, and verbally provocative while in the hospital, although he did not demonstrate any "classic" psychotic symptoms such as hallucinations, delusions or communication disorders.

 Despite all this, Justice Miller "reluctantly" denied the recommitment application. Relying on People v. Torres,18 Justice Miller held that the Commissioner was required to establish by a preponderance of the evidence that petitioner "currently" posed a physical danger to himself or others. That burden, she concluded, had not been met, because petitioner was not dangerous at the time of the hearing in light of the fact that he had been on medication following his arrest.

 The State Appellate Proceedings

 The District Attorney of New York County and the Commissioner appealed Justice Miller's order to the New York Supreme Court, Appellate Division, First Department. *fn19" They argued that petitioner was suffering from a dangerous mental disorder and should have been recommitted. Petitioner contended inter alia that the recommitment provisions of CPL § 330.20 are unconstitutional and that the hearing court was without jurisdiction to consider the recommitment application because it had not been timely served and filed and because ...

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