C. Disposition of Persons Found Not Guilty by Reason of Mental Disease or Defect

• Jurisdiction: New York

C. Disposition of Persons Found Not Guilty by Reason of Mental Disease or Defect⁶⁰

The leading case concerning the disposition of persons found not guilty by reason of mental disease or defect is In re Torsney.⁶¹ Torsney, a New York City police officer, shot and killed a 15-year-old. Torsney was indicted and tried for the murder. He interposed a defense of lack of criminal responsibility for the act based upon a mental disease diagnosed as psychomotor epilepsy. In November 1977, the jury returned a verdict of not guilty by reason of mental disease or defect. On that date, Torsney was committed to the custody of the commissioner. By March 1978, Torsney’s physicians were already recommending his release. A hearing was held in July 1978, at which time the trial court ordered Torsney’s release. The Appellate Division reversed, but the Court of Appeals reinstated the decision of the trial court.

In upholding Torsney’s release, the Court found that “automatic commitment of persons acquitted of crimes by reason of mental disease or defect is constitutionally permissible only for a reasonable period of time, that is, sufficient time to permit an examination and report as to the detainee’s sanity.”⁶² To support continued retention, the Court of Appeals required a finding that the patient was mentally ill and in need of inpatient treatment. A dangerous propensity, by itself, was not sufficient. The Court interpreted the existing statute as requiring release, unless a defendant was a danger to himself or others by reason of a mental disease or defect.

Criminal Procedure Law § 330.20 was enacted in 1980 to comply with the constitutional mandates of Torsney and to protect the public from further dangerous acts of the acquittees.⁶³ Upon entry of a verdict that the defendant is not responsible by reason of mental disease or defect, or upon acceptance of such a plea, a post-verdict examination is required to determine current mental status. The exam may be performed by two psychiatrists or one psychiatrist and one licensed psychologist.⁶⁴ The examination must be conducted in a secure facility within 30 days following the verdict, unless the defendant was previously released on bail or on his or her own recognizance. In that instance, the court may order an outpatient exam, unless the commissioner determines that an inpatient exam is necessary.⁶⁵ Once the patient is examined, each psychiatrist or psychologist must submit a report to the commissioner and the court. The court may request that an additional psychiatric examination be conducted.⁶⁶

Within 10 days of receiving a report, the court must “conduct an initial hearing to determine the defendant’s present mental condition.”⁶⁷ At this hearing, “the district attorney must establish to the satisfaction of the court that the defendant has a dangerous mental disorder (DMD) or is mentally ill.”⁶⁸ The Court of Appeals has held that the standard of proof in these hearings is a preponderance of credible evidence.⁶⁹

If the defendant is found to have a DMD, the court must issue a commitment order, which commits the defendant to a secure facility for care and treatment for up to six months.⁷⁰ The OMH operates two hospitals that are designated as secure facilities, Mid-Hudson Psychiatric Center and Kirby Forensic Psychiatric Center, as well as the Rochester Regional Forensic Unit at Rochester Psychiatric Center, designated as a secure unit.

The commissioner must apply for a first retention order or a release order 30 days prior to expiration of the commitment order.⁷¹ The district attorney may appear at this hearing and present evidence.

The court may find that the defendant (1) has a DMD, and the court may issue a retention order for up to one year; (2) is mentally ill, but does not have a DMD, in which event the court must issue a retention order, as well as a transfer order to a civil hospital and an order of conditions pursuant to CPL § 330.20(11); or (3) is not dangerous and not mentally ill, in which case it must issue a release order and an order of conditions pursuant to CPL § 330.20(12). “Order of conditions” means an order directing the defendant to comply with a prescribed treatment plan.⁷² Second and subsequent retention orders follow the same process as first retention orders.⁷³

If the court finds that the defendant has a DMD, the defendant’s status may be changed only by appealing the original order...