The opinion of the court was delivered by: William M. Erlbaum, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
On behalf of the Commissioner of Mental Health for the State of New York, Donna L. Hall, Ph. D, Deputy Director of the Division of Forensic Services, has filed an application, dated June 12, 2008, for a court ordered continuation of the Order of Conditions, that had expired on August 28, 2006, that had been in place for the respondent, Ed. The application on behalf of the Commissioner, based upon the ground that the respondent allegedly is in continuous need of supervision and treatment, proposes that the respondent attend an outpatient mental health program, reside in approved housing, refrain from alcohol or drug use, submit to sobriety screenings, and refrain from applying for a firearm license, or owning or possessing a firearm.
The respondent submits that he has been living for two years without an Order of Conditions, and he believes that he can maintain his current, appropriate behavior without court-ordered conditions.*fn1 He is requesting that a hearing be conducted to determine whether the Order of Conditions should be extended.*fn2 See, minutes of Part K-4, dated November 7, 2008, pages 7, 8, and 24.
In light of the respondent's request for a hearing,*fn3 he has filed a motion dated September 19, 2008, and a reply affirmation dated October 10, 2008, requesting that the Court appoint an independent psychiatric examiner to evaluate the respondent and testify at a hearing regarding the extension of the Order of Conditions.*fn4 The New York State Attorney General's Office, on behalf of the Petitioner, has filed an affirmation, dated September 18, 2008, opposing such relief.*fn5 Oral argument on this issue was conducted before the Court on November 7, 2008.
Initially, the Court finds that it has discretionary authority to appoint an expert independent psychiatric examiner to evaluate the respondent and report his findings to the Court.
CPL 330.20, entitled "Designation of psychiatric examiners" states, "If, at any hearing conducted under this section to determine the defendant's present mental condition, the court is not satisfied with the findings of the psychiatric examiners, the court may direct the commissioner to designate one or more additional psychiatric examiners to conduct an examination of the defendant and submit a report of their findings. In addition, the court may on its own motion, or upon request of a party, may [sic] designate one or more psychiatric examiners to examine the defendant and submit a report of their findings. [...](emphasis added)".
The hearing requested by the respondent to determine the issue of potentially extending the Order of Conditions (see, CPL 330.20[o]), is contained in the same section of the Criminal Procedure Law as CPL 330.20. Furthermore, since the hearing will necessarily evaluate the respondent's present mental condition, the plain reading of this statute gives the Court the authority to appoint an expert.
Additionally, Judiciary Law section 35, entitled, "Assignment of counsel to indigent persons and appointment of physicians in certain proceedings", also seems to grant the Court such authority. Judiciary Law 35 states, ". . .when a person is alleged to be mentally ill, mentally defective or a narcotic addict, the court which ordered the hearing may appoint no more than two psychiatrists, certified psychologists or physicians to examine and testify at the hearing upon the condition of such person [...]".*fn6
The Court is well aware that section 35 of the Judiciary Law refers to section 1[a] of the Judiciary Law when describing the types of proceedings where experts may be needed. These proceedings involve hearings concerning such issues as writs of habeas corpus in regards to the cause of an individual's detention in a state facility, hearings in civil proceedings to commit someone to a state institution for the mentally ill, or hearings relating to custody and guardianship issues of children with mentally ill parents. See, Judiciary Law 35[a]. And though the type of hearing that will be conducted in the case at bar, one pertaining to the extension of an Order of Conditions, is not explicitly listed in the above cited categories, the Court notes that it is not forbidden by the statute. Furthermore, the central issue in this case is the respondent's mental condition, which is also the central issue of these sections of the Judiciary Law. Additionally, the Court notes the holdings of Matter of Marvin B., 167 Misc 2d 904 , In re Gregory F., 292 AD2d 606 [2nd Dept 2002], and Matter of Kings Park Psychiatric Center, 204 AD2d 724 [2nd Dept 1994]. In each of these cases, the courts found that the Judiciary Law gave the courts authority and discretion to appoint an expert psychiatric examiner. And, in each of these cases, though hearings were conducted concerning the respondent's mental condition, none of the hearings conducted were specifically delineated under Judiciary Law 35[a].*fn7 Accordingly, the Court finds that it has the authority and discretion to appoint an independent psychiatric examiner in this case pursuant to the respondent's request.
The next issue for the Court to determine is whether the Court should exercise its discretion in this case and make such an appointment. The Court finds that it should.
In support of the respondent's application for the appointment of an independent psychiatrist to evaluate him, the respondent argues that it would extremely difficult to prevail at a hearing disputing the necessity of extending the Order of Conditions without the testimony of an expert. The respondent submits that if the sole witness testifying at the hearing is affiliated with the State, and in favor of the extension, his testimony would be unrebutted, and that it would be unlikely that he would be able to proffer any evidence in support of his position. Furthermore, the Respondent submits that another medical opinion, in addition to the State's witness, would be beneficial to the Court in providing more information to aid the Court in evaluating the complex mental health issues involved herein. Lastly, the respondent submits that since the defendant has been living the past two years without an Order of Conditions, not only does he have a liberty interest at stake should the expired Order of Conditions be extended, but the issue as to why the Order was allowed to expire without an earlier application for an extension, would be best explored with a second medical opinion.
The Court finds all of these arguments compelling and pursuasive. As the Court in Matter of Marvin B., 167 Misc 2d 904, 908  stated, "the appointment of an independent psychiatrist could only serve to enlighten the court with respect to the complex psychiatric issues involved herein. By making such an appointment, the court does not mean to suggest that the doctor testifying on behalf of [the facility] would be biased or that he or she might lack the necessary knowledge to competently and thoroughly testify with respect to [the respondent's] present condition. Rather, the court merely seeks to explore all practicable avenues of information and interpretation which are available to it. By following this procedure, a hearing fundamentally fair to both the respondent and the State will result." This Court could not agree more with that rationale.*fn8 See also, In re Gregory F., 292 AD2d 606 [2nd Dept 2002], holding that a second psychiatric opinion would aid the court in its determination as to a patient's treatment.
The Court would note that the Petitioner instead urges the Court to following the rationale of In the Matter of Schlomo S., Richmond County, Index Number 1088/93, dated June 25, 2003, Honorable Christopher J. Mega. In that case, the court declined to appoint an expert psychiatric witness for the respondent in a hearing on an extension of an Order of Conditions. The Court held, at page 4, that "the particular facts of this matter, particularly the non-custodial status of [the respondent], do not support the appointment of an independent psychiatric examiner. The ...