Supreme Court, New York County, September 13, 2018

Letitia James, Attorney General, New York City, for New York State Office of Mental Health.

Pierre Sussman, Esq., P.C., Bronx, for defendant.

B.P. is a defendant hospitalized at Kirby Forensic Psychiatric Center, New York, pursuant to a Criminal Procedure Law § 330.20 subsequent retention order, dated April 19, 2017, which expired on May 7, 2018.^[FN1]

New York State Office of Mental Health (the State) has applied for a subsequent retention order, pursuant to CPL 330.20 (9),^[FN2] to authorize the continued custody of B.P. in a secure [*2]psychiatric facility. B.P., represented by private counsel herein,{**63 Misc 3d at 537} seeks a transfer order to a non-secure facility, pursuant to CPL 330.20 (1) (l).^[FN3]

Before this court, in connection with such applications, is B.P.'s request for an independent psychiatric examination, pursuant to CPL 330.20 (15), by a psychiatric examiner designated by B.P.'s counsel, Dr. Sasha Bardey. While Dr. Bardey is not on New York State's approved list of psychiatric examiners, such doctor was previously appointed and examined B.P., pursuant to an order by the Honorable Kelly O'Neill Levy. B.P. also seeks that the examination by Dr. Bardey be completed at the State's expense, pursuant to Judiciary Law § 35.

In seeking such psychiatric examination, B.P.'s counsel argues that this court need not wait to order the requested examination until after the court has determined, at the time of the hearing, that it is not satisfied with the Commissioner's psychiatrists' findings as to whether B.P. has a dangerous mental disorder. Rather, B.P.'s counsel asserts that B.P.'s "meaningful participation at [an eventual] hearing, and his ability to evaluate the conclusions of the hospital's doctors and to present evidence at [such] hearing is dependent upon the relief sought herein being granted" (Pierre Sussman affirmation, dated May 29, 2018). Defendant's counsel further maintains that "[a]n additional psychiatric opinion, either in agreement with or contrary to the opinions submitted by the hospital will permit the defendant to present evidence if a hearing is held, and to amplify the evidence upon which the Court must ultimately decide the defendant's current condition" (id.).

By oral opposition to B.P.'s application for a psychiatric examination by Dr. Bardey,^[FN4] the New York State Attorney General's Office (the AG's office) relies upon the language of CPL 330.20 and argues that such application is premature. The AG argues that the court may not direct an additional psychiatric{**63 Misc 3d at 538} examination, until the court decides that it is not satisfied with the findings of the initial psychiatric examiners, during the course of an actual hearing. The AG's office also argues that since Dr. Bardey is not on New York State's approved list of examiners and, given that B.P. is appearing by a private attorney in this matter, the State should not be responsible for the payment of the costs related to a psychiatric examination by Dr. Bardey. The District Attorney's [*3]Office of Nassau County (the DA's office) made no formal appearance on this application and B.P.'s counsel orally represented that the DA has no opposition to his request.

Discussion

CPL 330.20 is entitled, "Procedure following verdict or plea of not responsible by reason of mental disease or defect," and subdivision (15), titled "Designation of psychiatric examiners," provides, in relevant part, as follows:

"If, at any hearing conducted under this section to determine the defendant's present mental condition, the court is not satisfied with the findings of the psychiatric examiners, the court may direct the commissioner to designate one or more additional psychiatric examiners to conduct an examination of the defendant and submit a report of their findings. In addition, the court may on its own motion, or upon request of a party, may designate one or more psychiatric examiners to examine the defendant and submit a report of their findings." (Emphasis added.)

A plain reading of CPL 330.20 (15) indicates that the court is granted the express discretionary authority to "designate one or more psychiatric examiners to examine [a] defendant," upon a court's "own motion, or upon request of a party," separate and apart from the circumstance where the court is dissatisfied with the psychiatric findings during the course of a hearing. Thus, contrary to the AG's office's argument, a court's power to designate an additional psychiatric examiner to conduct an examination of a patient need not wait until the court is dissatisfied with the initial psychiatric findings at a hearing, but, rather, may be directed, prior to any hearing and determination that the State's doctor's findings were not satisfactory, to obtain a "reliable assessment of a patient . . . [and a] . . . hearing fundamentally fair to both the respondent and the State" (Matter of Marvin B., 167 Misc 2d 904, 905-908 [Sup Ct,{**63 Misc 3d at 539} Queens County 1996] [independent psychiatric examination ordered by the court pursuant to CPL 330.20 (15)]; see also Matter of Ed, 23 Misc 3d 577, 581 [Sup Ct, Queens County 2009] [the court exercised its discretion based upon the plain reading of CPL 330.20 (15) to appoint an independent psychiatric examiner to evaluate the patient, prior to a hearing, finding that it "would be beneficial to the court('s) . . . (evaluation of) the complex mental health issues involved," to determine patient's mental condition]).

Here, under the within circumstances, where B.P. has been confined to a secure facility for over five years, and the AG's office and the DA's office seek another subsequent retention order, while B.P. seeks that his commitment status be downgraded, requiring that the court determine whether B.P. has a dangerous mental disorder or is mentally ill (see CPL 330.20 [9]), the designation of an additional psychiatric examination of B.P. would assist the court in its determination as to B.P.'s mental health and "serve to enlighten the court with respect to the complex psychiatric issues involved" (Matter of Marvin B., 167 Misc 2d at 908). Upon review, this court is satisfied that B.P.'s counsel's "meaningful participation at the hearing, and his ability to evaluate the conclusions of the hospital's doctors and to present evidence at the hearing" will be enhanced by an additional psychiatric opinion and, ultimately, an additional psychiatric exam will assist the court in its determination as to B.P.'s current mental condition (Sussman affirmation dated May 29, 2018).

However, that portion of B.P.'s application which seeks that the State incur the cost of such psychiatric examination by Dr. Bardey, pursuant to Judiciary Law § 35, is denied, without prejudice. [*4]Notably, Judiciary Law § 35, which sets forth the reimbursement procedure and schedule for appointment of psychiatrists, is entitled the "Assignment of counsel to indigent persons and appointment of physicians in certain proceedings" (emphasis added). Here, B.P. is represented by private counsel and there has been no showing that B.P. is in fact "indigent," or financially unable to afford the cost of a psychiatric examination by a doctor that he has selected. Moreover, Dr. Bardey is not on the New York State's approved state list of psychiatric examiners and there has been no indication as to whether the prior examination by Dr. Bardey, pursuant to the order of the Honorable O'Neill Levy, was paid for by the State.

Based upon the above, it is ordered that B.P.'s request for an independent psychiatric examination by Dr. Sasha Bardey to{**63 Misc 3d at 540} examine B.P.'s mental state is granted; it is further ordered that the portion of B.P.'s request that the examination by Dr. Bardey be completed at the State's expense, pursuant to Judiciary Law § 35, is denied, without prejudice.^[FN5]

"Second and subsequent retention orders. When a defendant is in the custody of the commissioner pursuant to a first retention order, the commissioner must, at least thirty days prior to the expiration of the period prescribed in the order, apply to the court that issued the order, or to a superior court in the county where the facility is located, for a second retention order or a release order. . . . Upon receipt of such application, the court may, on its own motion, conduct a hearing to determine whether the defendant has a dangerous mental disorder, and it must conduct such hearing if a demand therefor is made by the district attorney, the defendant, counsel for the defendant, or the mental hygiene legal service within ten days from the date that notice of the application was given to them. If such a hearing is held on an application for retention, the commissioner must establish to the satisfaction of the court that the defendant has a dangerous mental disorder or is mentally ill. The district attorney shall be entitled to appear and present evidence at such hearing. . . . If the court finds that the defendant has a dangerous mental disorder it must issue a second retention order. If the court finds that the defendant is mentally ill but does not have a dangerous mental disorder, it must issue a second retention order and, pursuant to subdivision eleven of this section, a transfer order and an order of conditions."