State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 16, 2014 519055 

________________________________

In the Matter of ARTO ZZ.

COMMISSIONER OF THE NEW YORK 

STATE OFFICE FOR PEOPLE WITH 

DEVELOPMENTAL DISABILITIES,

Respondent;

MEMORANDUM AND ORDER

ARTO ZZ.,

Respondent,

and

NEW YORK COUNTY DISTRICT

ATTORNEY,

Appellant.

________________________________

Calendar Date: September 10, 2014

Before: Lahtinen, J.P., McCarthy, Rose, Lynch and Devine, JJ.

__________

Cyrus R. Vance Jr., District Attorney, New York City

(Christine Ante of counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Jonathan D.

Hitsous of counsel), for Commissioner of the New York State

Office for People with Developmental Disabilities, respondent.

Sheila E. Shea, Mental Hygiene Legal Service, Albany

(Charles Bayer of counsel), for Arto ZZ., respondent.

__________
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McCarthy, J.

Appeal, by permission, from an order of the Supreme Court

(Feldstein, J.), entered May 28, 2014 in Franklin County, which

granted petitioner's application pursuant to CPL 330.20 to direct

the release of respondent Arto ZZ. from an unsecure psychiatric

facility under certain conditions.

Respondent Arto ZZ. (hereinafter respondent), who is mildly

developmentally disabled, has been in the custody and care of

petitioner since his 1986 acquittal of a criminal charge by

reason of mental disease or defect (see CPL 330.20). In 2004,

respondent was transferred from a secure to a nonsecure facility

(Matter of Arto ZZ., 24 AD3d 947, 947 [2005], lv denied 6 NY3d

707 [2006]). In 2013, petitioner commenced this proceeding

seeking respondent's release pursuant to an order of conditions,

specifically requesting an order that respondent reside in a

highly supervised intermediate care facility operated by the

Office for People with Developmental Disabilities (hereinafter

OPWDD) and comply with his service plan (see CPL 330.20 [12]). 

Respondent New York County District Attorney (hereinafter the DA)

opposed the application. Following the presentation of the DA's

case in opposition, petitioner moved for an order granting

respondent's release. The DA cross-moved for dismissal of

petitioner's application. Supreme Court granted petitioner's

application, releasing respondent pursuant to a restrictive order

of conditions. The DA appeals with this Court's permission (see

CPL 330.20 [21] [a] [iii]). 

Initially, Supreme Court correctly denied the DA's cross

motion. Petitioner's expert psychologist apparently

misunderstood the applicable legal definition, as is evident from

his supporting affidavit. A person does not necessarily meet the

legal definition of "mentally ill" just because he or she falls

within the definition of that phrase that is used by the

scientific or psychiatric community; this can make the law

confusing for medical professionals. Nevertheless, the court

relied on the expert's factual and medical determinations in his

affidavit and annexed report, disregarding that medical expert's

legal conclusions. Considering the appropriate factual

information and accompanying opinion that respondent was suitable
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for release with certain conditions, petitioner's application was

legally sufficient (see CPL 330.20 [12], [20]). 

Supreme Court did not err in granting petitioner's

application to release respondent pursuant to an order of

conditions. In reviewing a CPL 330.20 commitment determination,

this Court's authority is as broad as that of the trial court and

we may render any determination warranted by the record, though

we defer to the trial court's factual and credibility findings

(see Matter of Amir F., 94 AD3d 1209, 1212 [2012]; Matter of

Stephen W., 90 AD3d 1166, 1170 [2011]; see also Matter of George

L., 85 NY2d 295, 305 [1995]; Matter of Eric U., 40 AD3d 1148,

1149-1150 [2007], lv denied 9 NY3d 809 [2007]). If the court

finds that a person committed pursuant to CPL 330.20 does not

have a dangerous mental disorder but is mentally ill, that person

must be confined in a nonsecure facility (see CPL 330.20 [12];

Matter of David B., 97 NY2d 267, 276-277 [2002]). If the court

finds that the person is no longer mentally ill, it must release

the person with an order of conditions (see CPL 330.20 [12];

Matter of Allen B. v Sproat, 23 NY3d 364, 370 [2014]). For

purposes of CPL 330.20, a person with a developmental disability

is considered "mentally ill" if he or she "is in need of care and

treatment as a resident in the in-patient services of a

developmental center or other residential facility for the . . .

developmentally disabled under the jurisdiction of [OPWDD]" (CPL

330.20 [1] [d]). The DA had the burden to prove by a

preponderance of the evidence that respondent met the statutory

definition of a "mentally ill" person (see CPL 330.20 [12];

People v Escobar, 61 NY2d 431, 439-440 [1984]). 

Although respondent undeniably was diagnosed with more than

one mental illness, such diagnoses are insufficient to prove that

he was "mentally ill" under the applicable statutory definition

(see CPL 330.20 [1] [d]; Matter of David B., 97 NY2d at 279

[noting that "the statutory language limits the class of retained

mentally ill individuals to those who must have inpatient care

and treatment," among other requirements]). The report and

affidavit of petitioner's expert indicated that respondent had

improved such that he no longer required inpatient care and

instead could function in a supervised intermediate care

facility. The DA's expert disagreed, opining that respondent met
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the definition of "mentally ill" because he needed constant

supervision. Supreme Court reasonably discounted that expert's

opinion because, despite his impressive credentials, he generally

worked with mentally ill individuals who did not have

developmental disabilities and he was not sufficiently familiar

with OPWDD facilities and procedures. He also engaged in

baseless speculation about respondent possibly eloping from the

proposed residence and the potential difficulties in locating or

returning him; such speculation cannot support the DA's burden

(see Matter of George L., 85 NY2d at 307-308).1 Contrary to the

expert's testimony, respondent could be deemed no longer mentally

ill even if he had a psychiatric diagnosis and still needed

supervision. "A release order directs [petitioner] to terminate

the defendant's in-patient status without ending his [or her]

responsibility for the defendant" (Matter of Allen B. v Sproat,

23 NY3d at 370; see CPL 330.20 [1] [m]). 

The DA relies heavily on Matter of David B. (97 NY2d at

277) to support his argument for retention of respondent. That

case is not directly on point, as the statute provides a

different definition of "mentally ill" for individuals who have

developmental disabilities in addition to one or more diagnosed

mental disorders (see CPL 330.20 [1] [d]). For those individuals

with developmental disabilities, the statute does not require

that their judgment be so impaired by a mental illness that they

are "unable to understand the need for such care and treatment"

(CPL 330.20 [1] [d]); this makes sense, as such inability could

be related to developmental disabilities as opposed to mental

illness. Even if that additional factor applied here, however,

respondent acknowledged in his testimony that he needed constant

1 The DA contends that any of his expert's testimony

concerning the proposed residence was irrelevant because Supreme

Court never should have reached the secondary issue of conditions

of release; according to this argument, the hearing should have

only addressed the primary question of whether respondent needed

to be confined due to his diagnosed mental illness. Contrary to

this argument, the topic of conditions of release was properly

raised at the hearing, and the court could use all of the hearing

testimony to weigh the credibility of the DA's expert. 
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supervision, indicating that he understood the need for care and

treatment. While the DA's expert disagreed that respondent had

any such understanding, Supreme Court found respondent credible

and did not rely on that expert's testimony. Thus, even under

the definition of mentally ill that applies to individuals

without developmental disabilities, the DA did not meet his

burden. 

Supreme Court correctly determined that respondent, who

acknowledged that he needed constant supervision, could be

released from inpatient care subject to certain conditions,

including his residence in an intermediate care facility with 24-

hour supervision by OPWDD staff. Inasmuch as the DA failed to

meet his burden of proving that respondent was "mentally ill" as

defined in CPL 330.20 (1) (d), the court properly granted

petitioner's application and released respondent subject to an

order of conditions.

Lahtinen, J.P., Rose, Lynch and Devine, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court