On January 26, 2007, the defendant was arrested in New York County following a cross-country journey from Minneapolis precipitated by a series of delusions associated with his bipolar condition. Subsequently indicted, he pleaded not guilty by reason of mental disease or defect. The plea was accepted by Hon. Justice Ronald Zweibel and the People. The charges included burglary and arson. Thereafter, pursuant to CPL §330.20(2), an order of examination was issued.

Defendant concedes that he is mentally ill and in need of inpatient psychiatric services. The People contend that he suffers from a "dangerous mental disorder" as defined in CPL §330.20 (1)( c) , arguing, in the words of the statute, that he "currently constitutes a physical danger to himself or others". That finding, if made, would require defendant's placement in a secure facility (track 1). Were the court to find the defendant mentally ill, but not suffering from a dangerous mental disorder, he would be placed in a non-secure facility (track 2). [*2]

Four days of hearings were held before me to determine the issue. The People offered the testimony of two examining psychiatrists, Dr. Frischer and Dr. Matkovic. The defendant offered his own testimony and that of Dr. Goldsmith, a psychiatrist retained by the defense. The matter has been extensively briefed.

In connection with defendant's plea, the parties stipulated to certain facts. That stipulation, received at the hearing as Court Exhibit One, summarizes the events culminating in defendant's arrest as well as portions of his medical history. To summarize it briefly:

A resident of Minnesota, defendant was first diagnosed as suffering from schizoaffective disorder in 1992. His delusions at that time followed upon the loss of custody of his first child. Believing that he was God or the Devil, defendant set fires at various locations, including the bathroom of a local bar. He was hospitalized in Wisconsin, given electroconvulsive treatment and released.

Defendant's next documented psychotic episode occurred in 1998. Believing that he was receiving messages directly from the Holy Ghost, he threatened his wife. After the police were summoned, he was hospitalized in Minneapolis for six days. After his release he was readmitted for another two weeks following a manic episode characterized by a buying spree.

In 2005, defendant called his ex-wife to tell her she would be killed at work and also called his sister-in-law to advise her that the police were coming to kill him. Officers responded to defendant's home to discover that the defendant had made a human-sized cross with a serpent wrapped around it. A doll's head was stuffed in the serpent's mouth. After being subdued by the police, defendant was taken to a hospital in St. Paul, where he began chanting passages form the Bible and stating that all first-born children were to die that day. Defendant was admitted to the hospital, but was released after 72 hours after refusing a longer period of observation.

Since 1998, when he was diagnosed as bipolar, defendant has received intermittent psychiatric care and has been prescribed numerous medications, including haldol, seroquel, prozac, depakote, lexapro, temazepam and benzotropine. When compliant with medication, he can be stable and can function at work. However, he frequently has been non-compliant with treatment; and, when non-compliant, he becomes psychotic, irrational and paranoid. Morever, defendant has a long history of alcohol and substance abuse, including the use of cocaine, methamphetamine and marijuana.

B. The Events of this Case

As stipulated, defendant's arrest in this case was the culmination of a "psychotic break" that began in December 2006 in Minnesota. Responding to what he believed to be messages from God, which were communicated directly to him over the radio, and "on fire with God and Jesus", defendant set out by car for New York, where he planned to bring God to the local population. Defendant also planned to visit his birth-mother in New York, having conceived the delusion that he was the product of an incestuous relationship between her and her father. Prior to leaving Minneapolis, he burned various belongings that he associated with his ex-wife. [*3]

On his way to New York, defendant made various stops along the way, at one point shaving his head at truck stop. In Pennsylvania he entered a hotel bathroom, urinated on the toilet paper and then set a fire in a storage closet. Arriving in New York on January 23, 2007, he spent the night at the home of his biological mother, where under the belief that he was physically burning up he kept turning on the air-conditioning. He also composed a list of people whom he had encountered on his way to New York with notations as to whether or not they would be following him to heaven.

Leaving his mother's apartment, defendant proceeded to the Times Square area and entered the New Amsterdam Theater on 42nd Street where a performance of the musical "Mary Poppins" was in progress. Once inside the theater he proceeded to a men's room where he set a fire inside a garbage can. The fire was extinguished by an usher without further incident. Subsequent to his arrest, defendant explained that he had set this fire to awaken the people of New York to their own depravity and remind them of their mortality in the hope that they would travel the path of salvation.

After setting this fire, defendant spent several hours wandering about the city, stopping in various bars to drink alcohol, until he arrived at an apartment building on 31st Street at about 2:15 a.m. At that location, he set two fires in stairwells leading to the roof. He then opened a standpipe on the main floor, flooding that area. Defendant later explained that his intention was to set fire to the water and make it explode. He also stated his intention to break into apartments in the building, turn on the gas in those apartments and ignite an explosion with his cell phone.

Defendant then proceeded to a Ramada Inn on Lexington Avenue. On the 10th floor of that hotel he discharged a fire hydrant, and tried to ignite its contents. When that failed, he set fire to a rug, which set off the sprinkler system, alerting the fire department and causing the evacuation of the hotel. Defendant then returned to the building on 31st Street, where he entered the garage and sprayed the interior and exterior of several parked cars with a fire extinguisher, and stole a jacket from inside of one of them.

After leaving 31st Street, defendant proceeded to a supermarket on Third Avenue, where he obtained permission to use the employees' bathroom in the basement. While in the basement, he stole some clothes and a wallet containing credit cards and identification from a locker. Equipped with these items, he proceeded to a hotel on 34th Street where he endeavored to rent two rooms. A suspicious concierge asked for identification and, upon determining that the photo identification that defendant proffered did not match his appearance, summoned the police. Shortly thereafter, defendant was arrested in the hotel's restaurant, where he had purchased drinks with the stolen credit card.

Following his arrest, defendant was evaluated by Dr. William Barr, a psychiatrist for the People, and by Dr. Stephen Kaplan, a psychiatrist for the defense. Both doctors agreed that the defendant was not criminally responsible for the above-described conduct by reason of mental disease or defect. These proceedings ensued.

The Evidence at the Hearing

At the hearing, the People called two psychiatrists, each of whom offered the opinion that the defendant suffered from a dangerous mental disorder. Dr. Katya Frischer testified that, while a fellow in forensic psychiatry at Bronx Psychiatric Center, she was assigned to perform a mental status examination of the defendant. She was fully familiar with defendant's psychiatric history and the events leading up to his arrest as set forth above. Her examination encompassed an [*4]extensive interview with the defendant as well as a review of his medical records dating back to 1998. She reviewed "his social history, his history of violence, his history of substance abuse and his history of past hospitalizations" as part of a "current mental status exam and an evaluation of his insight and cognitive capacities".

Dr. Frischer's report was received in evidence. In it she diagnosed the defendant as suffering from "Bipolar Disorder, Type 1, most recent episode manic, severe, recurrent, with psychotic features". Her diagnosis further noted a history of alcohol dependence, including binge drinking, and methamphetamine and marijuana abuse. Her report concluded that the defendant was "at a high risk of violence" based upon his "history of violent acts, past history of noncompliance with treatment, poor insight into the need for mental health treatment, history of alcohol dependence and lack of insight into the need for substance abuse treatment". She noted a "repeated pattern of decompensation and hospitalizations and a lack of insight into the danger of his actions." Thus, although defendant appears to be aware of his mental illness, and is symptomatically stable while incarcerated, Dr. Frischer was of the view that defendant's "historic lack of insight into the need for medication...combined with his inability to appreciate the fragile state of his current sobriety and his lack of insight into the dangerous nature of his actions... continue to make his risks of decompensation and dangerous behavior active and current."

Dr. Christopher Matkovic also examined the defendant on behalf of the People. He concurred with Dr. Frischer's diagnosis and conclusion that the defendant was suffering from a dangerous mental disorder. His report was also received in evidence at the hearing. In it he concluded, inter alia, that defendant's persistent abuse of alcohol clearly contributes to his non-compliance with treatment and exacerbates his mental illness. When interviewed by Dr. Matkovic, defendant advised that prior to his arrest he had been drinking "around the clock a fifth of whiskey and a six-pack of beer a day." Dr. Matkovic further concluded that defendant "presents with a pattern of non-compliance with medication to treat his mental illness and substance abuse." To avoid a recurrence of the events that led to defendant's arrest, Dr. Matkovic opined, the defendant would need to develop better insight into his illness "including the need for lifelong psychiatric treatment and abstinence from drugs and alcohol."

Elaborating on his diagnosis at the hearing, Dr. Matkovic testified that defendant suffers from bipolar disorder type one, "which is a very destructive, disruptive, lifelong, chronic illness requiring high levels of psychiatric treatment". He expressed his expert opinion that unless defendant was placed in a "structured setting", the likelihood of defendant decompensating was very high. The consequence of such decompensation would be that the defendant "would become noncompliant with medications, possibly abusing alcohol and other substances and subsequently becoming either depressed or manic, leading to...a mania-like grandiosity, delusions, indiscretion in activities, not sleeping, potentially becoming dangerous and aggressive." The abuse of alcohol or drugs by the defendant is likely both to induce a manic episode of the kind that led to his arrest and to lead the defendant to depart from his medication, which, in turn, would render such episodes likely.

Dr. Eric Goldsmith examined defendant and testified on his behalf. In his report, Dr. Goldsmith diagnosed the defendant as suffering from "Bipolar 1 Disorder, most recent episode manic in full remission." In his testimony, he described this condition as one in which "when you're in a manic state, in essence you lose touch with reality. You have delusional [*5]hallucinations. You hear the voice of God, believing God is talking to you." His report also noted a history of methamphetamine abuse in full remission and alcohol dependence in early remission. Differing from Dr. Matkovic and Dr. Frischer, Dr. Goldsmith opined that defendant has gained sufficient "insight into his illness and the need for continuous treatment and sobriety" as to reduce the "risk factors for dangerousness significantly since his arrest." Dr. Goldsmith concluded that defendant is "most likely to comply with prescribed medication, remain on medication and maintain sobriety without supervision." Accordingly, his ultimate opinion was that defendant does not have a "dangerous mental disorder", but requires "retention in a non-secure facility as continued care and treatment are essential to [his] psychological welfare and necessary to prepare him for a safe and stable transition from a non-secure commitment to release."

Dr. Goldsmith further testified that when defendant is manic he "absolutely" can be "very dangerous" as he has been in the past in 1992, 1998, 2005 and 2007. He also conceded that defendant's psychological history, including prior violent criminal conduct was of particular relevance "because past behavior predicts future behavior. That's probably the biggest predictor." In response to a question from the Court, Dr. Goldsmith also testified that, the fact that there was less time between his two most recent manic episodes and his first two such episodes, is a "common clinical scenario" attributable to the absence of effective treatment over time.

Defendant also testified at the hearing. As with all of the other witnesses, he agreed that he is dangerous when manic. He characterized drugs and alcohol as "triggers" which would probably precipitate a manic attack. He testified that in order to avoid such an attack he would have to attend therapy sessions and abstain from alcohol and drugs. A person of obvious intelligence, he acknowledged that his "track record" for such abstinence has not been good, but testified that he now knows that he "can't handle" drinking. Similarly acknowledging that he has in the past stopped taking medications prescribed for his illness, he now says he is compliant with the prescribed regimen. He also admitted that he had authored a suicide note while incarcerated on this charge, but contended that the motivation for it was to change his housing assignment, and denied that he was in fact suicidal. He testified that he does not believe that he is ready to be discharged, but hopes to return to Minnesota for further therapy.

The parties being in agreement that defendant suffers from a mental illness, the only issue for this Court is whether "because of such condition he currently constitutes a physical danger to himself or others." CPL § 330.20. The burden rests with the People to establish such dangerousness by a fair preponderance of the credible evidence. People v. Escobar, 61 NY2d 431 (1984); Matter of Richard H., 6 AD3d 7, 13 (1st Dept 2004) lv den 3 NY3d 601 (2004). If the People have met their burden, defendant will be designated a track one patient and confined in a secure facility. If the People have not met their burden, in light of defendant's concession that he is mentally ill, he will be confined in a non-secure facility. As the Court of Appeals stated in Matter of Norman D., 3 NY3d 150, 154-55 (2004) :"[t]rack status designation, unique to insanity acquittees, is vitally important in determining the level of judicial and prosecutorial involvement in future decisions about [*6]an acquittee's confinement, transfer and release. ... Track one status is significantly more restrictive than track two status." In applying these provisions of the Insanity Defense Reform Act of 1980, a court must "strike a balance between public safety and the individual rights of the acquittee." Id. at 154. See generally Matter of Jamie R., 6 NY3d 138, 143 (2006).

In Matter of George L., 85 NY2d 295 (1995), the Court of Appeals set forth a non-exhaustive list of ways in which the prosecution might meet its burden of proving a defendant dangerous under CPL §330.20. Such evidence might include "proof of a history of prior relapses into violent behavior, substance abuse or dangerous activities upon release or termination of psychiatric treatment", evidence of the necessity of continued medication, a history of prior noncompliance with medication or threats of future noncompliance. The Court held that "dependence on such factors as these clearly evidencing a defendant's threat to himself or society is warranted to justify the significant limitations on an insanity acquitee's liberty interest which accompany secure confinement." Id. at 308. See also Matter of David B., 97 NY2d 267, 278 (2002) ("relapses into violent behavior, substance abuse, and non-compliance with treatment requirements were all sufficient indicators of present dangerousness for the purposes of secure confinement to a psychiatric facility", citing Matter of Francis S., 87 NY2d 554, 561 [1995]).

Moreover, while not dispositive in itself, a court may consider "the nature and recency of the criminal act [for which the detainee was acquitted] in deciding whether a defendant remains dangerous at the time of his commitment." Matter of George L., supra, at 306. Thus, "because persons acquitted of a crime by reason of mental disease or defect have demonstrated past antisocial behavior, the state is permitted to engage in what may be broadly termed a presumption that the causative mental illness or defect continues beyond the date of the criminal conduct.'" Id., at 306, quoting Matter of Torsney, 47 NY2d 667, 673-74 (1979). Indeed, the entry of a plea of not guilty by reason of mental disease or defect for a crime of violence is itself "certainly evidence that [an insanity acquittee] remains a danger to society." Id., at 307.

Applying the foregoing legal standards to this case, I find that defendant currently suffers from a dangerous mental disorder within the meaning of CPL §330.20.

In this case, a determination of the defendant's current dangerousness logically begins with the conduct that led to his arrest and which he has admitted, and the offenses of which he stands acquitted by reason of mental disease or defect. See, Matter of George L., supra. One can hardly imagine behavior more dangerous to society than the setting of a fire in a theater during a performance or in a dwelling. Indeed, based upon the evidence at the hearing, I conclude that defendant is currently a danger both to himself and to others. That evidence included not only a history of setting fires, in which defendant as well as others might have been killed or injured, but defendant's threat to commit suicide while incarcerated during the pendency of this case.

That defendant has engaged in setting fires on other occasions only reinforces the presumption that the mental illness that resulted in this conduct continues beyond the date of his arrest in this case. As the Court of Appeals has noted, " [t]he recent commission of a violent act significantly increases the probability that an individual will commit further such acts in the future....[T]he clinical consensus is that a history of violent behavior in an individual is the single [*7]best predictor of future violence.'" Matter of George L., supra, at 306, quoting Note, Rules for an Exceptional Class: The Commitment and Release of Persons Acquitted of Violent Offenses by Reason of Insanity, 57 NYU L. Rev. 281, 295-96 (1982).The currency of this "consensus" was best expressed at the hearing in this case by defendant's expert witness, Dr. Goldsmith, who opined that past behavior is "probably the biggest predictor of future behavior." See also Matter of Francis S., supra, at 563 ("the legislative judgment of the continued latent risk of recurrence of an insanity acquittee's dangerous mental disorder has a sound basis in clinical studies of recidivism among insanity acquittees.")

Defendant's past behavior, including that preceding his arrest in this case, does not bode well for the future at least in the short term. In this regard, it is worth noting that the events that led to defendant's arrest occurred within approximately 24 months of the hearing in this case and were part of a trend of increasingly frequent decompensation which, again to quote defendant's own expert, is a "common clinical scenario." See Matter of George L., supra, at 306 ("The trial court was justified in considering, as it did, that appellant's attack on his father had occurred only 17 months prior to the commitment proceeding.").

Tellingly, that past behavior includes a history of the defendant abandoning his anti-psychotic medications and engaging in various forms of substance abuse, leading to the psychotic episodes culminating in his arrest. See Matter of Richard H., supra, at 16. The fact that defendant's condition may have been stabilized while he has been confined does not lead to the conclusion that he is not currently dangerous. Rather, when viewed in the context of his history of prior decompensation and substance abuse, defendant's enforced sobriety and adherence to medication appear necessary to maintain his mental equilibrium. See Matter of Francis S., supra, at 561. In this regard, I reject the conclusory testimony of Dr. Goldsmith that defendant is "most likely" to maintain sobriety and continue on medication "without supervision" in favor of the contrary conclusions reached by Drs. Frischer and Matkovic.

As between the conflicting testimony of the People's experts and Dr. Goldsmith regarding the degree of "insight" defendant had attained into his own illness and his need for continued treatment, medication and abstinence from substance abuse, I find the opinions of Drs. Frischer and Matkovic more persuasive. To the extent that defendant's degree of "insight" is relevant to his current dangerousness, it does not appear to me that he has attained it sufficiently. To the contrary, defendant's behavior while incarcerated after the arrest in this case has been punctuated by occasional refusals to cooperate with personnel seeking to implement his treatment. These incidents, defendant's prior failures to obtain psychiatric treatment, his discontinuances of prescribed medication and his frequent lapses into substance abuse lend substantial force to Dr. Matkovic's opinion that "insight is not something that typically develops in a short period of time; particularly for a lifetime problem". In this regard, I believe that defendant's current admission that he has bipolar illness is principally due to fact that he has been incarcerated as a result of his behavior, rather than having achieved any deeper insight into his illness. Likewise, defendant's expressed desire to return to Minnesota, where his support structure consists of his ex-wife and his 79-year-old father, strikes me as unrealistic at present and reflects a lack of understanding of the seriousness of his condition and the consequences that might flow from it.

In sum, the nature and relative recency of defendant's indisputably dangerous conduct, the history of prior similar conduct and relapses, his history of substance abuse and his non-compliance [*8]with medication are all factors "clearly evidencing [his] threat to himself or society." Matter of George L., supra at 308. The presence of these factors, coupled with what I find to be the persuasive testimony of Drs. Frischer and Matkovic, lead me to the conclusion that the People have met their burden of establishing by a fair preponderance of the credible evidence that defendant currently poses a danger to himself or others. Accordingly, pursuant to CPL §330.20(7), it is:

ORDERED that the above-named defendant is committed to the custody of the Commissioner of Mental Health for confinement in a secure facility to be designated by the Commisisoner for care and treatment for six months from the date of this order; and it is furtherORDERED that the Commissioner of Corrections for the City of New York shall hold the above-named defendant in custody pending the designation of said secure facility by the State Commissioner of Mental Health, and when when notified of the designation, shall promptly deliver the defendant to such secure facility.

Dated: February 25, 2009____________________________________

J.S.C.