Supreme Court, New York County, May 7, 2024

The Legal Aid Society, New York City (Jennifer Hose of counsel), for defendant.

Letitia James, Attorney General, New York City (Caroline P. Wallitt of counsel), for nonparty respondent.

K.W. (defendant) moved for an order holding the Office of Mental Health (OMH) in civil and criminal contempt, pursuant to Judiciary Law §§ 750 and 753, based on OMH's failure to timely transfer defendant to an OMH facility, in accordance with this court's commitment order. For the reasons set forth below, the defendant's motion is denied.

A New York County grand jury indicted defendant for attempted assault in the first degree (Penal Law §§ 110.00, {**84 Misc 3d at 789}120.10 [1]). On September 20, 2023, this court ordered a competency examination pursuant to Criminal Procedure Law article 730. After being evaluated, defendant was found unfit. On October 12, 2023, this court issued an order committing defendant to the custody of OMH "for care and treatment in an appropriate institution to be designated by" OMH. That order further directed the New York City Department of Correction (DOC) to deliver defendant to the designated institution "forthwith."

On October 12, 2023, OMH designated Mid-Hudson as the facility to receive defendant (defendant exhibits B, C). On October 31, 2023, defense counsel emailed Jeffrey Paloski of OMH to inquire about defendant's designation and estimated transfer date. Paloski replied that defendant was "promptly designated" (defendant exhibit D).

On December 7, 2023, counsel for DOC advised that defendant's transfer was "pending a female bed" (defendant exhibit C).

On February 20, 2024, defendant filed an order to show cause, pursuant to CPL 730.60 and Judiciary Law §§ 753 and 750, as to why OMH should not be held in contempt. On March 5, 2024, OMH filed an affirmation and memorandum of law in opposition, and this court held oral argument. On March 25, 2024, defendant filed a reply, and on April 2, 2024, OMH filed a surreply.

To sustain a motion for civil contempt, the moving party must show, by clear and convincing evidence, that a lawful judicial order "expressing an unequivocal mandate" was in effect; that the order was disobeyed; that the party to be held in contempt had knowledge of the court's order; and that the right of a party to the litigation was prejudiced. (Gregg v Lan Zhen Chen, 220 AD3d 695, 696 [2d Dept 2023]; see McCain v Dinkins, 84 NY2d 216, 225-226 [1994].) To establish criminal contempt, however, a higher degree of willfulness by the alleged contemnor is required. (McCain, 84 NY2d at 226 ["the element which escalates a contempt to criminal status is the level of willfulness associated with the conduct"].) Knowingly failing to comply with a court order gives rise to an inference of willfulness, which may be rebutted with "evidence of good cause for noncompliance." (Matter of Figueroa-Rolon v Torres, 121 AD3d 684, 685 [2d Dept 2014] [citations and internal quotation marks omitted].){**84 Misc 3d at 790}

The defendant initially sought to hold OMH in civil contempt. In her reply papers, however, the defendant withdraws that request, concluding that the defendant's intervening transfer rendered the request for civil contempt moot (defendant's reply at 2). Accordingly, the only issue before this court is whether OMH should be held in criminal contempt.^[FN*]

In support of her request for criminal contempt sanctions, the defendant urges this court to conclude that OMH's violation of the commitment order was willful, arguing that OMH admitted to "a policy and practice of delaying admission of unfit individuals" (defendant's reply at 6). The defendant also highlights OMH's failure to take "corrective steps," such as financing initiatives or development of outpatient services, in the face of steadily increasing need for competency-restoration services (defendant's reply at 7).

In opposition, OMH notes that its delay in accepting patients for treatment is due to lack [*2]of space in secure facilities, caused in part by a consistent increase in patients in need of restoration services. OMH also contends that it has taken steps to ameliorate the problem, citing the recent opening of a unit for 25 patients at Manhattan Psychiatric Center, as well as its plan to "soon" commence construction to expand Mid-Hudson (OMH surreply at 4-5). OMH also argues that it "regularly evaluates" the possibility of various programs to facilitate competency restoration, but urges that each potential solution is accompanied by its "own set of challenges," including staffing, exclusion from Medicare and Medicaid programming, the cooperation of third parties, and the procurement of "substantial funds" through the budgetary process (OMH surreply at 5-6; surreply aff ¶¶ 6-10).

Initially, this court's commitment order expressed a "clear and unequivocal" mandate to transfer the defendant "forthwith." (Obadiah v Shaw, 266 AD2d 520, 521 [2d Dept 1999]{**84 Misc 3d at 791} ["(t)o prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party so charged violated a clear and unequivocal court order"].) It is well settled that "forthwith" means "without delay." (Matter of Ayers v Coughlin, 72 NY2d 346, 353 [1988] ["forthwith" means "without delay, at once, promptly" and "signals immediacy"].)

OMH contends that there is no "court-ordered deadline" and suggests that "forthwith" is subjective, to be defined in relation to the "circumstances" confronting OMH (OMH opp at 4). However, the Court of Appeals has already rejected very similar arguments. Indeed, in Ayers, the Court of Appeals rejected the Department of Correctional Services' contention that overcrowding in state correctional facilities permitted the agency to delay acceptance of inmates, despite orders requiring that those individuals be transferred "forthwith." (Ayers, 72 NY2d at 353.) The Ayers court determined that, although allowing some flexibility "for exigent circumstances in particular cases," transfers to be completed "forthwith" should occur within 10 days. (Id.) In light of Ayers, it simply cannot be said that transfers occurring only after months-long waits occur "forthwith."

Next, there can be no question that OMH was aware of the commitment order. Indeed, OMH designated Mid-Hudson on the same date that the commitment order issued (defendant exhibits B, C).

Nevertheless, this court cannot conclude that OMH's violation of the commitment order was willful. Of course, OMH's noncompliance with the order to transfer defendant "forthwith" was knowing. And, as defendant points out, this noncompliance has been part of a pattern, whereby those in need of competency restoration have waited in Rikers for months on end. Although OMH has offered little evidence of the steps it has taken to ameliorate the problem, its papers have nevertheless established good cause for its noncompliance—namely, the significant obstacles outside of OMH's control. (Cf. Matter of Department of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d 233, 239, 242 [1987] [upholding order holding entity in criminal contempt where it continued to burn coal in violation of court order, and where it had claimed authority to do so on "calculated misinterpretation of the subject order"].)

To be sure, that this court has not found that OMH willfully disobeyed its order "does not absolve OMH of its responsibility to sound alarm bells and demand assistance to rectify the{**84 Misc 3d at 792} problem." (People v L.G., 83 Misc 3d 1030, 1041 [Sup Ct, NY County 2024, Newbauer, J.].) Nevertheless, this court also recognizes that the problem, to a certain extent, lies beyond the powers of OMH. A problem of this scale and complexity cries out for legislative change and substantial funding. Otherwise, individuals like the defendant will continue to suffer without the psychiatric care that they need—to their own detriment, and to [*3]society's.