In the Matter of Jerald OO. Commissioner of Mental Health, Respondent; Jerald OO., Appellant.
Shea, Mental Hygiene Legal Service, Albany (Brent R. Stack of
counsel), for appellant.
Letitia James, Attorney General, Albany (Jonathan D. Hitsous
of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Devine and Aarons, JJ.
by permission, from an order of the County Court of Chemung
County (Rich Jr., J.), entered May 22, 2018, which granted
petitioner's application, in a proceeding pursuant to CPL
330.20, for a subsequent retention order.
was charged by indictment with murder in the second degree
and attempted murder in the second degree stemming from an
incident in 2000 involving his parents. In 2002, respondent
pleaded not guilty by reason of a mental disease and, since
that time, he has been in the custody and care of the Office
of Mental Health. Following this initial commitment, multiple
orders were issued to continue his retention in a secure
facility. Respondent was transferred to a nonsecure facility
in 2010, following which more retention orders were issued.
In 2018, petitioner commenced this proceeding for an order
directing the continued retention of respondent. Following a
hearing, County Court granted the application. Respondent, by
permission, appeals. We affirm.
seeking a subsequent retention order, petitioner bore the
burden of establishing by a preponderance of the evidence
that "(1) respondent suffer[ed] from a mental illness,
(2) in-patient services [were] essential to his well-being,
and (3) his judgment [was] so impaired that he [did] not
understand the need for such care and treatment"
(Matter of Michael RR., 284 A.D.2d 786, 787 ;
see CPL 330.20  [d]; ; Matter of David
B., 97 N.Y.2d 267, 277 ). When assessing whether
petitioner satisfied its burden, County Court may consider a
host of factors, including "recent acts of violence and
the risk of harm to [respondent] or others that would be
occasioned by release from confinement, ... the nature of the
conduct that resulted in the initial commitment, the
likelihood of relapse or a cure, history of substance or
alcohol abuse, the effects of medication, the likelihood that
[respondent] will discontinue medication without supervision,
the length of confinement and treatment, the lapse of time
since the underlying criminal acts and any other relevant
factors that form a part of [respondent's] psychological
profile" (Matter of David B., 97 N.Y.2d at 279;
see Matter of Richard S., 6 A.D.3d 1039, 1041
, appeal dismissed 3 N.Y.3d 700');">3 N.Y.3d 700 ). The
factual findings and credibility determinations made by the
court will be afforded due deference (see Matter of
Richard S., 6 A.D.3d at 1040).
retention hearing, respondent's psychologist and
psychiatrist both testified that respondent suffered from
paranoid schizophrenia. The psychologist stated that, even
though group sessions were essential to his care, respondent
attended them only sporadically. The psychologist also
recounted two instances of violence where respondent injured
another patient and threatened a staff member. When asked
whether respondent was making progress toward reintegration
into the community, the psychologist responded, "Not
really." According to the psychologist, respondent
denied that he had a mental illness and lacked insight into
his condition. Respondent's psychiatrist likewise
testified that respondent failed to accept his mental illness
and that he had questioned his diagnosis. The psychiatrist
further opined that, if released, respondent would not take
his medication and that, at this juncture, respondent should
respondent testified on his own behalf, he did not offer any
medical proof to refute the testimony given by the
psychologist or the psychiatrist â€”
witnesses specifically credited by County Court. The court
found that respondent was "regressing, not getting
better" and took into account respondent's mental
illness, his lack of compliance in treatment, the severity of
the acts leading to his commitment and his failure to follow
the recommended steps for reintegration into society.
Deferring to the court's findings, we see no basis to
upset its determination (see Matter of Richard S., 6
A.D.3d at 1040). Respondent's remaining assertions, to
the extent not specifically discussed herein, have been
examined and are without merit.
Jr., J.P., Clark and ...