On October 18, 2010, the defendant, indicted for the crimes of arson in the second degree, in violation of Penal Law ("P.L.") § 150.15; reckless endangerment, in violation of P.L. § 120.25; four counts of assault in the second degree, in violation of P.L. § 120.05, and criminal mischief in the second degree, in violation of P.L. § 145.10, entered a plea of not guilty by reason of mental disease or defect.

This court was directed to conduct an initial commitment hearing pursuant to Criminal Procedure Law ("C.P.L.") § 330.20(6). The purpose of an initial commitment hearing is to "determine the defendant's present mental condition" and what, if any, course of supervision, care and/or treatment is needed to assure the safety and well being of the defendant and the public. C.P.L. §§ 330.20(6) and (7). For the reasons set forth below, this court finds the defendant an appropriate candidate for Track 3.

Based on the evidence at an initial commitment hearing, the defendant receives one of three classifications. If the court finds the defendant has a dangerous mental disorder,^[FN1] it classifies the defendant as "Track 1," and must order commitment to a secure facility for an [*2]initial term of six months. C.P.L. §§ 330.20 (1)(f) and (6). If the court finds the defendant is mentally ill^[FN2] but does not have a dangerous mental disorder, it classifies the defendant as "Track2," and must issue an order committing the defendant to the custody of the state commissioner of mental health, pursuant to the Mental Hygiene Law. C.P.L. § 330.20 (7). If the court finds that the defendant does not have a dangerous mental disorder and is not mentally ill, it classifies the defendant as a "Track 3," and must discharge the defendant either unconditionally or subject to an order of conditions. Id and see Richard S v. Sharon Carpinello, 589 F.3d 75, 77 (2nd Cir. 2009).

The People are required to prove the defendant's current mental state and Track requirements by a preponderance of the evidence. In Matter of David B and Richard S, 97 NY2d 267, 279 (2002).

The hearing commenced on May 5, 2011 and concluded on May 13, 2011. The People called four witnesses, Sergeant John Brennan and police officer Phillip Anschick, and doctors Stuart M. Kirschner and Mariassa Kaminsky. The defense called five witnesses, doctors Elisheva Berman, Gabriel K. Tsuboyama, Allan I. Stempler, and Seymour H. Block, and the defendant. In addition to the testimony, the court reviewed reports prepared by doctors Kirschner, Kaminsky, Berman, Tsuboyama and Block, doctors' notes, the defendant's medical records, videos of Dr. Kirschner's interviews of the defendant and an ABC news clip of the incident and the defendant's arrest the night of the incident.

Sergeant Brennan and police officer Anschick testified about the events of the early morning hours of March 27, 2009, including their observations of the defendant and her actions that resulted in her arrest.

Dr. Block interviewed the defendant initially in 2009 and Dr. Kirschner interviewed the defendant in early 2010^[FN3] to assist the parties in determining whether a not guilty plea by reason of mental disease or defect would be appropriate. Both doctors determined that the defendant suffered from bipolar I disorder,^[FN4] most recent episode manic with psychotic features; obsessive [*3]compulsive disorder,^[FN5] body dysmorphic disorder^[FN6] and trichotillomania^[FN7]. They agreed that due to her symptoms of bipolar disorder, she lacked substantial capacity to appreciate the wrongfulness of her conduct. Based on those findings, a court accepted the plea of not guilty by reason of mental disease or defect.

Pursuant to § 330.20(2) of the C.P.L., the defendant was evaluated by two doctors from the Department of Mental Health in anticipation of the initial commitment hearing.

Dr. Tsuboyama interviewed the defendant on November 10, 2010. He determined that the defendant suffered from bipolar disorder with psychotic features, trichotillomania, body dysmorphic disorder and an eating disorder not otherwise specified. The doctor concluded the defendant had "limited insight; a not uncommon occurrence among sufferers from major psychiatric disorders. The inability to acknowledge illness is associated to lack of compliance with treatment . . . however Ms. T. is not dangerous to herself or others and does not require in patient psychiatric treatment. She can be treated as an outpatient provided she complies with her psychiatrist's treatment recommendations." Psychiatric-Legal Report on Ms. Sharon T.: A 330.30 Evaluation by Dr. Gabriel K. Tsuboyama, dated December 20, 2010.

Dr. Kaminsky met with the defendant on November 20, 2010. She concluded that the defendant was a candidate for Track 2, due to her bipolar disorder and specifically noted that the defendant is "currently symptomatic (hypomanic and thought disordered) and refuses proper medication and treatment. She lacks insight into her illness (does not believe she has a mental illness) and is likely to have another manic episode. Her current symptoms include religious preoccupation, hypomania, with pressured speech, grandiosity, tangentiality, flight of ideas, slight paranoia, loose associations, ideas of reference, lability, and a broad and sometimes inappropriate affect" which "cannot be adequately treated" on an out patient basis. The Forensic Report Pursuant to CPL 330.20 of Sharon T. by Dr. Marissa Kaminsky, dated December 9, 2010.

Pursuant to § 330.20(5) of the C.P.L., due to the conflicting recommendations of doctors Tsuboyama and Kaminsky, the Commissioner of Mental Health appointed Dr. Berman to [*4]conduct a third examination of the defendant. Dr. Berman met with the defendant on January 3, 2011. Finding that the defendant suffered from the same psychiatric disorders noted by doctors Tsuboyama and Kaminsky, she agreed with Dr. Tsuboyama that the defendant was appropriate for Track 3. Dr. Berman concluded that "[a]s a result of her poor insight into her illness, her history of noncompliance with medication as directed, her residual symptoms, including pressured speech, tangentially [sic], and delusions, and her lack of a strong support system, Ms. T. remains at risk for recurrent violence and/or recidivism. On the other hand, even without being fully treated, Ms. T. has been able to maintain herself in the community over the last year . . . and may be maintained as an outpatient at this time." Report re: Sharon T., dated January 31, 2011 by Dr. Elisheva Berman.

Thereafter, the People had the defendant evaluated by Dr. Kirschner, who had, prior to her plea, evaluated the defendant in 2009. Dr. Kirschner interviewed the defendant on February 24, 2011.^[FN8] He found that her "diagnosis remains Bipolar Disorder I, last episode manic with psychotic features. While she denies engaging in any recent compulsive types of behaviors or hair pulling, in light of the fact that these have been chronic problems for her, Obsessive Compulsive Disorder and Trichotillomania need to be ruled out. Similarly, Body Dysmorphic Disorder also needs to be ruled out, considering her history. . . she is isolated and is without a support system. Her defenses are extremely fragile and her mental condition is quite tenuous. . . To be sure, a period of hospitalization would provide additional, more objective information." Dr. Kirschner concluded that in patient care in a psychiatric center is "essential to [the defendant's] welfare . . . [and that] her judgement is so impaired that she is unable to understand the need for such care and treatment." Psychological-Legal Report Re: Sharon T. by Dr. Stuart M. Kirshcner, dated March 31, 2011.

The facts relating to the underlying incident are not in dispute. The defendant at the time of the incident, a 44 year old, white female was born in Scarsdale, New York. She is the oldest of six children. The family moved to California when the defendant was four years old. The defendant's father was a successful oral surgeon. Her mother a home-maker. The defendant described a "loveless," "generally dysfunctional" home. Her mother placed significant emphasis on appearance and money. Her father who, the defendant appeared to idealize, was an alcoholic. After an uneventful high school and college career, the defendant gravitated to the world of finance and held approximately 20 jobs over the course of her life.^[FN9] The defendant also underwent approximately 40 plastic surgeries, at times going into debt. She moved to New York City, in July 2008, hoping to find better job opportunities and landed a job with Chase Mortgage. [*5]Her parents decided to separate late in life and were in the process of getting divorced in March 2009. At the time of the incident the defendant was somewhat estranged from her father. She testified that she was upset with his drinking and how he treated her and her siblings. Although the defendant testified that she tried to help her siblings over the years, until the death of her father, the defendant's relationship with her siblings could be characterized as strained, at best.

On March 5, 2009, the defendant was scheduled for surgery to deal with a self inflicted wound in her pelvic area resulting from the defendant pulling out her pubic hair. Prior to the surgery, the defendant attempted to contact her father. She called his home several times but he did not answer his phone. Following her surgery, the defendant was told to remain in bed. Rather than follow the doctor's orders of bed rest, the defendant decided to have her apartment painted. She told one doctor that she assisted the painters with their work, but when she testified in court stated that she merely arranged for the painting, but due to a gas leak in the building the painters were unable to complete their work. The defendant reported not sleeping or sleeping only a few hours each night for at least a week after the surgery.

On March 14, 2009, the defendant received a telephone call from her mother, informing her that her father was found dead in his apartment. Apparently, he had died approximately two weeks prior to his body being discovered. The body was badly decomposed. The defendant, accompanied by one of her brothers who also resided in New York City, flew back to California on March 17, 2009, for her father's funeral. Upon arriving in California, she learned her father either had been cremated or was going to be cremated. She began to doubt that her father was actually dead or in the alternative, that her aunt and uncle, who worked for the C.I.A., were complicit in killing her father. The defendant demanded to see autopsy photographs and sought her father's dental records in an effort to confirm his death.

While in California, the defendant testified that her relationship with her family continued to be strained. She believed her mother's actions were totally inappropriate, i.e., "ransacking her father's apartment" and preoccupation with her father's assets. The defendant remained in California for a few days to assist her brother, who was co-executor with the defendant's aunt and uncle, with estate matters.

On March 21, 2009, the defendant, again accompanied by her brother, returned to New York. For the next six days, the defendant did not sleep, thought her apartment had been broken into and financial documents removed, and believed she was being surveilled. She notified the police of the alleged break-in. When the police arrived at her apartment they informed the defendant that there was nothing they could do, in part, because she had given her key to numerous people. The defendant contacted her mother and sister in California, calling them numerous times, often late in the evening, telling them she wanted to return home. They agreed to arrange for her to return to California. The defendant was concerned that she was being watched and worried that if she tried to leave for the airport from her apartment she would be kidnaped or killed. [*6]

On March 26, 2009, the defendant decided to go to her gym and stay there until her flight. She called the police from the gym to see if they would drive her to the airport. The same officers who had responded days earlier to her apartment appeared at the gym. After listening to the defendant, the officers decided to transport her to Roosevelt Hospital Psychiatric ER for observation. The hospital sent the defendant home finding that she did not meet the criteria for an involuntary admission because she did not pose a danger to herself or others. She was diagnosed with adjustment disorder with disturbance of conduct, in part because she failed to report her symptoms of paranoia and lack of sleep. The defendant was not a good reporter regarding her symptoms.

Once back at her apartment, she looked out her window and saw a man across the street. She believed the man was waiting for her. She was too afraid to leave her apartment for the airport. Fearing that the police would not respond to her call she started to make a lot of noise, hoping that would cause her neighbors to call the police. When those attempts failed, she threw cans of paint through her fifth floor window to the street. The noise of the breaking glass and the paint cans hitting the sidewalk generated a number of calls to 911.

Officers arrived at the defendant's apartment building at approximately 2:30 a.m. on March 27, 2009. They saw the paint cans and broken glass on the sidewalk and heard screaming coming from the fifth floor. The officers went to the defendant's apartment. They heard her screaming that she could not open the door and had a flight to catch. The officers tried to talk to her through the door, but she just continued to scream and was not responsive. Two officers waited by the apartment door, while a third officer went to the apartment below to try to enter the defendant's apartment from the fire escape. When the officer got to the defendant's window, he heard her yelling and saw that her body was up against the door like a barricade. The window frame was bent, making it impossible for the officer to open the window to enter the apartment. The defendant did not believe the officers at her door were actually policemen. Having had an encounter earlier with a fireman, regarding the gas leak in her apartment, the defendant decided to try to set off her fire alarm to get the fire department to respond to her apartment. The defendant set a blanket on fire and within minutes her bedroom was engulfed in flames. The police officer on the fire escape saw the defendant drag the blanket into the living room. Smoke and flames began to fill the living room. The police officer on the fire escape notified the officers at the front door that the defendant had started a fire. Those officers broke into the apartment and grabbed the defendant to get her out of the apartment. The defendant resisted, kicking and flailing her arms.

Once the defendant was removed from the apartment, the firemen entered. The defendant was taken downstairs and tried to run away from the police. The incident was reported on ABC news. The film showed the defendant fighting with the police.^[FN10] The defendant was eventually placed in an ambulance and taken to Bellevue Hospital. Several fire fighters and police officers suffered smoke inhalation and were taken to the hospital. The apartment house was evacuated. [*7]The defendant's apartment was destroyed. The sky was visible through her bedroom ceiling.

The defendant was evaluated at Bellevue Hospital for approximately eight hours. She was involuntarily committed due to psychosis, disorganization and the inability to care for herself. The following morning she was still paranoid and delusional. She believed the staff was poisoning her. She did not sleep and refused medication. Staff noted that she was observed praying.

The defendant was transferred to Elmhurst Hospital on March 27, 2009. While in Elmhurst Hospital, the defendant continued to refuse to take her medication. One of the reasons she refused to take the medication was the weight gain side effect. She was grossly psychotic and paranoid. The defendant would only drink bottled water or eat food that was delivered to her in sealed packages and thought drugs were being put in her blood through the blood pressure cuff. The nurses reported that she did not sleep. The report from Elmhurst Hospital describes the defendant as argumentative and inconsistent in her compliance with treatment. For example, she would refuse treatment but demand to go to the emergency room because she was in pain, yet refuse to be examined by the internist. The staff noted that although the defendant interacted appropriately with her peers, she was hostile and abusive to staff.

On April 13, 2009, the defendant was arraigned on the underlying charges, transferred to Riker's Island and housed at the Rose M. Singer Correctional Facility, where she remained in the psychiatric area for approximately two and one half months. While at Rose M. Singer, the defendant was treated for psychiatric and medical conditions. The initial diagnosis was obsessive compulsive disorder, body dysmorphic disorder, and impulse control disorder. She initially refused to take any medication that would cause a weight gain. She did, however, eventually agree to take Prozac, which she discontinued after gaining weight. Thereafter, she took Wellbutin and Benedryl. She was eventually also diagnosed with bipolar disorder.

On June 29, 2009, the defendant was released from Riker's Island and transferred to the Zucker Hillside Hospital Inpatient Service where she was treated for her various psychological disorders, which included bipolar disorder, obsessive compulsive disorder, body dysmorphic disorder and trichotillomania. While at Zucker Hillside Hospital she was prescribed Abilify and Lamictal to address her manic symptoms and stabilize her moods. She was prescribed Ambien and Ativan, as needed.

Upon leaving inpatient treatment, the defendant was referred to Dr. Stempler, who she appeared to see one time prior to deciding to leave New York. Dr. Stempler prescribed Abilify and Lamictal.

On August 13, 2009, the defendant was admitted to the John Muir Health Center out patient program in California for treatment and stabilization of her bipolar disorder. Upon admission, she did not believe she needed treatment and wanted to remain at work. While at John Muir Health Center, the defendant continued to take Abilify but discontinued the Lamictal [*8]due to a rash she developed. The defendant was discharged from the center fourteen days later after informing them that her insurance would no longer cover the costs of her treatment.

While in California, the defendant resided with her sister, helping to care for her sister's children. She was seen three times, between August 31 and October 5, 2009, by Dr. Alex Smiroff during which time she still exhibited hypomania, pressured speech and appeared labile and tearful. She reported taking 10 mg of Abilify, but had been prescribed 20 mg doses. From October 21, 2009 to September 9, 2010, she was seen nine times by Dr. Andrew Krompier. He tried to increase the Abilify dose to 25 mg., but it is unclear why he was unsuccessful.

The defendant traveled back and forth between New York and California between August 2009 and the hearing. She currently resides alone in an apartment in Manhattan.

The defendant returned to New York and began treatment, on a out-patient basis with Dr. Stempler in November 2010.^[FN11] Over the course of the next nineteen months, Dr. Stempler saw the defendant four times. He prescribed Abilify which she continued to take.

It was clear from the defendant's testimony that she still exhibits pressured speech, tangential thinking, grandiosity and has a negligible understanding of her psychological condition. She described the general symptoms of bipolar disorder as being extremely happy or sad and denied such feelings. She is living in her own apartment in Manhattan for which she has already paid the first year's rent. According to the defendant, she is waiting for this case to be resolved before she starts a job she characterized as perfect for her with Northshore Credit Advisory. She is studying for her real estate and notary licenses.

Since her release from custody the defendant's treatment has been sporadic. The defendant characterizes Dr. Stempler as her treating physician. He has only seen her a total of six hours since her discharge from Zucker Hillside Hospital. Although the defendant also spent two weeks attending an out patient program in California and saw doctors following the out patient program, she has, in this Court's view not received consistent treatment.

Doctors Kirschner, Kaminsky, Berman, and Tsuboyama all agree that the defendant suffers from bipolar I disorder, obsessive compulsive disorder, body dysmorphic disorder and trichotillomania. Doctors Stempler and Block agree with the diagnoses but testified they believed the defendant is in remission. A review of the doctors' testimony and reports reveal that although the general information provided to them by the defendant is similar there are numerous inconsistencies. For example, she told some of the doctors she had no history of psychiatric treatment and others that she saw a psychiatrist on two occasions. She admitted to some doctors that she had a Vicodin dependency, but not to others. Doctors Kirschner and Kaminsky believe the defendant should be classified as a Track 2, while doctors Berman, Tsuboyama, Stempler and [*9]Block believe she should be classified as a Track 3. Although they arrive at difference conclusions doctors' Kirschner, Kaminsky, Berman, and Tsuboyama descriptions of the defendant's symptoms are almost identical. In fact, if one were to place the C.P.L. § 330.20 reports side by side omitting the conclusions, it would be difficult to tell them apart.^[FN12] No doctor has monitored the defendant consistently since March 27, 2009, the date of the incident.^[FN13]

In In Matter of David B and Richard S, 97 NY2d supra at 278 - 279, the Court of Appeals instructs courts to consider

recent acts of violence and risk of harm to the

defendant or others that would be occasioned

by the defendant's release from confinement . . .

the nature of the conduct that resulted in the initial

commitment, the likelihood of relapse or cure, history

of substance or alcohol abuse, the effects of medication,

the likelihood that the patient would discontinue medication

without supervision, the length of confinement or

treatment, the lapse of time since the underlying criminal

acts and any other relevant factors that form a part of an

insanity acquittees psychological profile.

See also In the Matter of George L., 85 NY2d 295 (1995); People v. D.D.G., 27 Misc 3d 1224(A) (Sup. Ct. Queens Co. 2010), and People v. Mooney, 20 Misc 3d 1131(A) (Sup. Ct. Bronx Co. 2008).

This court has considered all the factors discussed in In Matter of David B and Richard S, supra. The defendant's actions that resulted in the fire and ultimate destruction of her apartment on Columbus Avenue, the hospitalization of police and fireman who responded to the fire and the disruption to the lives and threats to the safety of her neighbors were horrendous. Had it not been for the efforts of the police, firemen and building superintendent lives could have been lost. There is no evidence of recent acts of violence or harm to the defendant or others [*10]since the defendant's release from confinement. The defendant has been diagnosed with a mental illness, bipolar disorder, that will never be cured. She has a history of Vicodin addiction. There are medications that are successful in the treatment of bipolar disorder. Although she has a history of refusing to take medication, evidence was presented that when ordered to comply, the defendant will take prescribed medication. It is significant that all the doctors who submitted C.P.L § 330.20 reports believe the appropriate medication for the defendant is lithium, while her "treating" psychiatrist has prescribed a low dose of Abilify.

The defendant has been out, basically unsupervised since August 2009. This court finds that the defendant suffers from a mental illness, but not as defined by the C.P.L. § 330.20(1)(d). She does however require strict supervision to assure that she will comply with her treatment and gain the needed insight and understanding of the nature of her illness to avoid any future incidents.

Therefore, this court finds the defendant to be appropriate for Track 3 as follows:

A treatment plan will be set in place by the Commissioner of Mental Health or his designee, which will include, but not be limited to the following conditions:

1. Defendant is to remain in psychiatric treatment once a week with a qualified psychiatrist who is approved by the Commissioner of Mental Health or his designee;

2. Defendant must take medications as directed by the treating psychiatrist and in consultation with the Commissioner of Mental Health or his designee;

3. Defendant must participate in whatever therapy programs she is directed to by her treating psychiatrist, and/or by the Commissioner of Mental or his designee;

4. Defendant must authorize her treating psychiatrist to submit quarterly reports to the Commissioner of Mental Health or his designee describing the defendant's current condition and the extent to which she is complying with her treatment plan and the Order of Conditions;

5. Defendant must submit to periodic psychiatric assessments or evaluations including medication reviews, as requested by the Commissioner of Mental Health or his designee;

6. Defendant must submit specimens for laboratory analysis as required by the Commissioner of Mental Health or his designee;

7. Defendant must reside in housing that meets the approval of the Commissioner of Mental Health or his designee;

8. Defendant must refrain from changing her place of residence without prior approval of her treating psychiatrist and the Commissioner of Mental Health or his designee; [*11]

9. Defendant must keep the Commissioner of Mental Health or his designee and the District Attorney apprised of her current address;

10. Defendant must refrain from indulging in the use of any unauthorized drugs, and

11. Defendant may only leave the jurisdiction of this court on notice to the Commissioner of Mental Health or his designee and the District Attorney's Office and with the consent of this court

Should the defendant deviate from any of the conditions set forth above or by the Commissioner of Mental Health or his designee, the Commissioner of Mental Health or his designee and/or the defendant's treating physician should notify the District Attorney and the court immediately.

These conditions will be in effect for a period of five years unless the court, for good cause, determines the order should be terminated sooner or extends the order for an additional five years.

An order setting forth the conditions will be filed with this decision

Dated: New York, New York

May 18, 2011

Laura A. Ward

Acting Justice Supreme Court