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People v. Darryl T. (Anonymous)

Supreme Court of New York, First Department

March 29, 2018

The People of the State of New York, Respondent,
v.
Darryl T. (Anonymous), Defendent-Appellant,

          Michael D. Neville, Mental Hygiene Legal Service, Mineola (Ana Vuk-Pavlovic and Dennis B. Feld of counsel), for appellant.

          Darcel D. Clark, District Attorney, Bronx (Shannon Henderson and Justin J. Braun of counsel), for respondent.

          Peter Tom, J.P. Barbara R. Kapnick Jeffrey K. Oing Anil C. Singh, JJ.

          TOM, J.P.

         Defendant appeals from the order of the Supreme Court, Bronx County (Ralph Fabrizio, J.), entered on or about May 31, 2016, insofar as it denied defendant a new initial hearing pursuant to CPL 330.20 in connection with his plea of not responsible by reason of mental disease or defect.

         In this appeal, we must consider whether defendant was deprived of the effective assistance of counsel when, following his plea of not responsible by reason of mental disease or defect to robbery in the first degree, his counsel conceded that defendant had a dangerous mental disorder, and effectively waived defendant's right to an initial hearing concerning his civil confinement pursuant to Criminal Procedure Law 330.20(6).

         Defendant Daryl T., now nearly 50 years old, has a history of mental illness that began at age 10 and a history of committing larceny during psychiatric episodes that occurred when his medication had worn off. He has been diagnosed repeatedly with bipolar disorder and schizoaffective disorder, a combination of schizophrenia and mood disorders, and has been hospitalized repeatedly as a danger to himself and others, due to his auditory hallucinations and voices telling him to kill himself and others. He has also been treated with several different antipsychotics and mood stabilizers.

         When defendant was between 14 and 16 years old, he stabbed a man with intent to kill, and then stabbed himself. In 1994, he tried to hurt himself by taking his friend's gun and was confined at the Creedmoor Psychiatric Center for observation from October 1994 to March 1995; he told medical personnel that he had heard voices in his head since age six, that the voices told him to kill, and that he had previously stabbed himself because of those voices.

         Defendant was confined in institutions for periods of a few days to a week at a time in March 2003, January 2005, January 2006, May-June 2010, October 2010, May 2011, June 2011, July-August 2011, and January 2012. During those confinements, he said that he heard voices and that he wanted to kill himself and others, and throughout his medical history, he has tested positive for alcohol and cocaine on numerous occasions.

         In August 2012, defendant tried to jump off the George Washington Bridge. Some days before that, five security officers had escorted him out of Mount Sinai Hospital after he threw monitor cords at the staff and threatened to hurt staff outside of the hospital. On March 19, 2013, while hospitalized at Bellevue, defendant said he heard voices in his head that told him he was worthless and should kill himself. One week after his release from Bellevue, he committed the offense to which he pleaded not guilty by reason of mental disease or defect.

         It was alleged that in the late evening of March 27, 2013, defendant was seen shoplifting items from a Pathmark grocery store, and that when Pathmark employees confronted him, he took out a knife and said, in sum and substance, "I'm going to shoot you." Defendant was arrested and charged with robbery in the first degree, robbery in the third degree, petit larceny, criminal possession of stolen property in the fifth degree, and criminal possession of a weapon in the fourth degree.

         From March 31, 2014 to April 15, 2014, he was confined, and treated for hearing voices telling him to kill himself and others, and between April 17, 2014 and April 25, 2014, he was again diagnosed with schizoaffective disorder and a history of alcohol and cocaine abuse.

         On February 27, 2015, while represented by an attorney from the 18-B panel, defendant pleaded not responsible by reason of mental disease or defect to robbery in the first degree. The People acknowledged that they had received the psychiatric evidence in the case, including defendant's medical records from October 12, 1994 to April 15, 2014, and more than 3, 400 pages pertaining to defendant's placement in eight institutions, not including the approximately 10 times that he was seen by the New York City Correctional Health Services in Rikers Island. Those records were admitted into evidence.

         Defense counsel confirmed that defendant understood the proceedings, that he had discussed the case with defendant, that defendant understood the consequences of his plea, and that there were no other viable defenses to the charges.

         The court asked defendant whether he was aware that the charge to which he was pleading not responsible by reason of mental disease or defect was robbery in the first degree, and defendant said yes. The court asked, "Do you understand the consequences of such plea?, " and defendant said he did. Defendant also confirmed that he understood that he had a right to plead not guilty, a right to a trial at which the People would have to call witnesses, the right to cross-examine those witnesses, and the right not to incriminate himself. He also said that he understood that by entering his plea of not responsible there would not be a trial, and that he was waiving his right to a trial. He further acknowledged the truth of the People's allegations, as previously described, regarding his conduct on March 27, 2013, at Pathmark. At the court's request, the prosecutor summarized the psychiatric evidence and history set forth above.

         Based on the history and psychiatric evidence, the prosecutor said that defense counsel had conceded that defendant was a danger to himself and society. Defense counsel agreed that he conceded that defendant was a danger to himself and society. He noted that defendant's conduct arose when he was not on his medication, and that when he took his medication, he was "highly functional, ... intelligent, [and] cooperative." Nevertheless, defense counsel confirmed that he ...


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