author: Fuchsberg, J. Jones, J.

text:
    In the Matter of Charles J. Hynes, as Deputy Attorney-General of the State of New York, Appellant, v Irwin Karassik, Respondent.
    Argued May 30, 1979;
    decided July 10, 1979

      POINTS OF COUNSEL

      Charles J. Hynes, Deputy Attorney-General (Arthur Weinstein and Richard D. Carruthe'rs of counsel), for appellant.
    The trial court was empowered to unseal trial records bearing on Karassik’s fitness to practice law. (Matter of Toro v Malcolm, 44 NY2d 146; Matter of Anonymous Attorneys, 41 NY2d 506; Matter of Rouss, 221 NY 81; Matter of Albany City Sav. Inst., 116 Misc 561, 200 App Div 848; Matter of Skyline Inn Corp. v New York State Liq. Auth., 44 NY2d 695.)

      Bennett L. Gershman for respondent.
    There is no authority in CPL 160.50 to unseal the official records used in the criminal prosecution of Karassik following his acquittal of criminal charges. (Matter of Anonymous Attorneys, 41 NY2d 506; Elkins v United States, 364 US 206; People v Schwartzman, 24 NY2d 241; People v Santiago, 15 NY2d 640.)

      Frank A. Finnerty, Jr., Peter F. Tortorici and Edward H. Albert for the Grievance Committee for the Second and Eleventh Judicial Districts, amicus curiae.

    I. The court below overlooked its own prior determination that CPL 160.50 would not apply to its inherent power to conduct future inquiries into the character and fitness of applicants for admission to the Bar. (Matter of Anonymous Attorneys, 41 NY2d 506.) II. In the exercise of its exclusive power and control over attorneys, the courts below are law enforcement agencies and are entitled to the records sealed pursuant to CPL 160.50. (Ex

      parte Secombe, 19 How [60 US] 9; Ex parte Burr, 9 Wheat [22 US] 529; Goldfarb v Virginia State Bar, 421 US 773.)
   OPINION OF THE COURT

Fuchsberg, J.

The issue before us is whether an order which directs the sealing of official records and papers pertaining to a criminal trial in which an attorney has been acquitted, operates to prevent those records from being unsealed for use in a subsequent investigation into the attorney’s fitness to practice law. The Appellate Division reversed and denied the motion for unsealing as a matter of law. We now affirm.

Respondent, a lawyer, was indicted for the misdemeanor of criminal solicitation in the second degree. The charge was based on the allegation that he had counseled a client to deny before a Grand Jury that he had paid $5,000 in cash to expedite approval of his nursing home establishment. After the verdict of acquittal, the attorney promptly and successfully moved under CPL 160.50 for an order sealing the official records of the prosecution.

Two months later, however, the Special Prosecutor, acting at the request of the Committee on Grievances of the Association of the Bar of the City of New York, moved the court to order that the records and papers be unsealed to assist the committee in determining whether to bring professional disciplinary charges. The trial court granted the prosecutor’s motion "in the interests of justice”. In reversing, the Appellate Division concluded that CPL 160.50 (subd 1) did not authorize any exception to the sealing requirement in this situation. It also held that two tape recordings introduced into evidence at the criminal trial were not within the definition of "official records and papers” protected by the sealing statute (CPL 160.50, subd 1, par [c]).

In pertinent part, CPL 160.50 reads:

"1. Upon the termination of a criminal action or proceeding against a person in favor of such person * * * unless the district attorney upon motion with not less than five days notice to such person or his attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise, or the court on its own motion with not less than five days notice to such person or his attorney determines that the interests of justice require otherwise and states the reasons for such determination on the record, the court wherein such criminal action or proceeding was terminated shall enter an order, which shall immediately be served by the clerk of the court upon the commissioner of the division of criminal justice services and upon the heads of all police departments and other law enforcement agencies having copies thereof, directing that:

•1* *$• H»

"(c) all official records and papers, including judgments and orders of a court * * * relating to the arrest or prosecution * * * on file with the division of criminal justice services, any court, police agency, or prosecutor’s office be sealed and not made available to any person or public or private agency”.

The statute serves the laudable goal of insuring that one who is charged but not convicted of an offense suffers no stigma as a result of his having once been the object of an unsustained accusation. That detriment to one’s reputation and employment prospects often flows from merely having been subjected to criminal process has long been recognized as a serious and unfortunate by-product of even unsuccessful criminal prosecutions (see Menard v Mitchell, 430 F2d 486, 490 [Bazelon, Ch. J.]; see, also, Schwartz & Skolnik, Two Studies of Legal Stigma, 10 Social Prob 133 [1962]; Hess & Le Poole, Abuse of the Record of Arrest Not Leading to Conviction, 13 Crime & Delinquency 494 [1967]). The statute’s design is to lessen such consequences (see Governor’s Approval Memorandum, NY Legis Ann, 1976, p 408; see, generally, Gough, Expungement of Adjudication Records of Juvenile and Adult Offenders: A Problem of Status, 1966 Wash U LQ 147, 156, 157-162).

The broad thrust of the sealing requirement is further evidenced by CPL 160.60, which states in no uncertain terms that "[t]he arrest or [unsuccessful] prosecution shall not operate as a disqualification óf any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling”. Consistent with the statute’s remedial purpose, is its intended application to any criminal action or proceeding terminated in favor of the person accused. The broad definition thus encompasses an expansive class of dispositions, including acquittal and various specified dismissals and vacaturs, regardless of whether premised on grounds unrelated to guilt or innocence (see CPL 160.50, subd 2).

CPL 160.50 furthermore establishes the methods by which such records may remain unsealed (subd 1). And, once a sealing order has issued there are but few narrowly defined exceptions to its terms; to wit, the records remain available (1) to a prosecutor in any proceeding in which the accused has moved for an order for an adjournment in contemplation of dismissal in a case involving marihuana, (2) to a law enforcement agency if justice requires that such records be made available to it, or (3) to any agency having responsibility for the issuance of gun licenses (CPL 160.50, subd 1, par [d]). None of these, obviously, can justify making the records available to the Grievance Committee. Although it has been suggested that these exceptions may prove too narrow (see Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 160.50 [Cum Supp, 1978-1979], p 288; cf. State Educ Dept Memo Recommending Disapproval of S 9924-A [CPL 160.50], June 21, 1976), the Legislature did not expand the scope of the exclusions from a sealing order when it amended the statute in 1977 (L 1977, ch 835, §§ 1, 2; L 1977, ch 905, § 1).

Though the statute, therefore, embodies stringent safeguards by which court records may remain confidential, in appropriate cases courts have called upon a power, traditionally labeled inherent, to provide similar relief when the interests of justice so dictate. The power grows out of that measure of discretionary authority courts enjoy with respect to their own records insofar as they pertain to the business of the court and when essential to the proper administration of justice (see Matter of Werfel v Fitzgerald, 23 AD2d 306, 311; see, also, Restricting Public Access to Judicial Records of State Courts, Ann., 84 ALR3d 598).

Exercised only rarely, this power has variously been wielded to amend and conform court records to the truth (People ex rel. Hirschberg v Orange County Ct., 271 NY 151, 156-157; Bohlen v Metropolitan El. Ry. Co., 121 NY 546, 550-551), or to seal court records in order to preserve confidentiality in sensitive proceedings (see Matter of Richard S. v City of New York, 32 NY2d 592, 595-596 [Family Court may exercise inherent power to seal its records when adjudication of juvenile as "person in need of supervision” was reversed]; Danziger v Hearst Corp., 304 NY 244, 248-249; Stevenson v News Syndicate Co., 276 App Div 614, 618, affd 302 NY 81 [court has inherent power to promulgate rule sealing records in matrimonial actions]), or to expunge records relating to a prosecution from which no conviction resulted (see Matter of Henry v Looney, 65 Misc 2d 759, 762-763 [Wachtler, J.] [juvenile’s surname expunged from arrest records, court records sealed]). In all these cases, resort to sealing or expungement, even absent any statutory authorization, was found warranted to protect those who might unjustly be injured by the indiscriminate availability of records.

It is suggested that, by like logic, in the even rarer and more extraordinary circumstances in which sealed records must be unsealed in order to serve fairness and justice, courts are not impotent to do so as well. On that premise, appellant argues that the special responsibility of courts in dealing with matters relating to discipline of members of the Bar furnishes a sufficiently compelling impetus for the courts to plumb their inherent power to make sealed records available (cf. Matter of Anonymous Attorneys, 41 NY2d 506, 511).

But, indeed, while cases might arise in which the exercise of a power to unseal would be appropriate (cf. Johnson v State, 336 So 2d 93, 95 [Fla]), the proceeding before us does not present such a situation. We need go no further than to say that in the light of the availability of the tapes of conversations between the respondent and the operator of the nursing home, a key to the criminal prosecution itself, the Appellate Division did not err in finding that Criminal Term had abused its discretion by disregarding the clear and unequivocal words of the statute.

Accordingly, the order of the Appellate Division should be affirmed.

Jones, J.

(concurring). I concur in the result reached by the majority but on a different analysis.

The application for access to the contents of respondent’s sealed records and papers was made in this instance at Criminal Term on behalf of the Committee on Grievances pursuant to CPL 160.50 (subd 1). It is conceded that such application falls within none of the categories listed in paragraph (d) of the subdivision. Nor, in my view, is it of a kind with those limited instances referred to in the majority opinion in which courts exercise reserved, inherent power to unseal or to seal records to protect the rights of litigants or other affected individuals in the interests of justice, or conceivably to assist public officials in the discharge of their duties in the public interest.

The application and the purpose to be served by the restricted unsealing in this instance is of a different genre. Here disclosure is sought to assist the courts themselves, or more precisely an arm of the court to which authority has been expressly delegated, in the oversight and discipline of attorneys and counselors at law. Responsibility therefor is vested by law exclusively in the Appellate Division (Judiciary Law, § 90, subd 2); Criminal Term has neither authority nor responsibility in such matters. Accordingly, the Appellate Division in this case properly determined that it was error for that court to have directed the unsealing of official records and papers relating to the criminal charge of which respondent was acquitted. We are not now asked to review a determination by the Appellate Division of an application to it for the issuance of an order making the sealed criminal proceeding records available in discharge of that court’s disciplinary responsibility.

Chief Judge Cooke and Judges Gabrielli and Wachtler concur with Judge Fuchsberg; Judge Jones concurs in result in a separate opinion in which Judge Jasen concurs; Judge Meyer taking no part.

Order affirmed, with costs.

      . The parties have not briefed the question of whether the appeal is properly before us. If the appeal is being taken from an order entered in a "criminal proceeding”, we would be required to dismiss inasmuch as there is apparently no statutory authority for such an appeal (see CPL 1.20, subd 18; 450.10, 450.15; Matter of Santangello v People, 38 NY2d 536; Matter of Alphonso C. [Morgenthau], 38 NY2d 923). On the other hand, if the appeal is being taken from an independent order entered in a civil proceeding, an appeal would lie to this court under CPLR 5601 (subd a) by virtue of the reversal at the Appellate Division. We hold the matter to be civil, for although it relates to a criminal matter, it does not affect the criminal judgment itself, but only a collateral aspect of it — namely, the sealing of the court record (see People v Public Serv. Mut. Ins. Co., 37 NY2d 606, 610-611).

      . Respondent’s appeal, purportedly taken as a matter of right from so much of the decision as held that the tapes were not within the embrace of CPL 160.50, was dismissed on the ground that he was neither a party aggrieved (CPLR 5511) nor able to appeal from an asserted error in the opinion rather than the order of the court (Cohen and Karger, Powers of the New York Court of Appeals, § 91, pp 394-395). He did not move for leave to appeal.

      . The comprehensiveness of the statutory scheme is also manifested by subdivision 14 of section 296 of the Executive Law, adopted in conjunction with CPL 160.50, which makes it an unlawful discriminatory practice for "any person, agency, bureau, corporation or association * * * to make any inquiry about * * * or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual * * * [which was terminated in his favor] in connection with the licensing, employment or providing of credit or insurance to such individual” (see Matter of Skyline Inn Corp. v New York State Liq. Auth., 44 NY2d 695).


source: Caselaw Access Project

author: Jasen, J. Meyer, J. Wachtler, J.

license: Public Domain

text:
    In the Matter of Robert Torsney, Appellant. State Commissioner of Mental Hygiene, Appellant; Eugene Gold, as District Attorney, Respondent.
    Argued April 23, 1979; reargued May 31, 1979;
    decided July 9, 1979

      POINTS OF COUNSEL

      Joseph Frost and Edward M. Rappaport for Robert Torsney, appellant.
    I. Appellant not being mentally ill or dangerous to himself or others, his release from the custody of the Department of Mental Hygiene is mandated by CPL 330.20 (subd 2) and the United States Constitution. (People ex rel. Henig v Commissioner of Mental Hygiene, 43 NY2d 334; Matter of Lublin v Central Islip Psychiatric Center, 43 NY2d 341; Jackson v Indiana, 406 US 715; O’Connor v Donaldson, 422 US 563; Humphrey v Cady, 405 US 504; McNeil v Director, Patuxent Inst., 407 US 245; Lee v Kolb, 449 F Supp 1368.) II. Appellant has met the burden of proof that he is fit for release by overwhelming evidence. (Gilbert v Real Estate Co. of Brooklyn, 155 App Div 411; Hoye v Bridgewater, 134 App Div 255; Matter of Lublin v Central Islip Psychiatric Center, 43 NY2d 341.) III. The order of the trial court for the release of appellant on condition that he not be a police official is improper.

      William A. Carnahan, Jeffrey J. Sherrin, John J. Aveni and Seth M. Abrams for State Commissioner of Mental Hygiene, appellant.
    I. Since the evidence in the record that Mr. Torsney is neither clinically mentally ill nor presently dangerous is uncontradicted, the decision of the court below is against the weight of the credible evidence. (Matter of Lublin v Central Islip Psychiatric Center, 43 NY2d 341; People ex rel. Henig v Commissioner of Mental Hygiene, 43 NY2d 334.) II. Since the evidence in the record that Mr. Torsney is neither clinically mentally ill nor presently dangerous is uncontradicted, the court below erred as a matter of law in determining that Mr. Torsney could be retained involuntarily in the custody of the Commissioner of the Department of Mental Hygiene. (People ex rel. Peabody v Chanler, 133 App Div 159, 196 NY 525; People v Lally, 19 NY2d 27; People ex rel. Henig v Commissioner of Mental Hygiene, 43 NY2d 334; Lee v Kolb, 449 F Supp 1368; People v McNelly, 83 Misc 2d 262; Lynch v Overholser, 369 US 705; Jackson v Indiana, 406 US 715; Matter of Kesselbrenner v Anonymous, 33 NY2d 161; Rouse v Cameron, 373 F2d 451; Cross v Harris, 418 F2d 1095.)

      Eugene Gold, District Attorney (Richard A. Finkel of counsel), for respondent pro se.

    I. The District Attorney has the right to participate fully in a proceeding pursuant to CPL 330.20 and to appeal from an adverse judgment. (People ex rel. Henig v Commissioner of Mental Hygiene, 43 NY2d 334; Matter of Miller, 46 AD2d 999; Matter of Miller [Sherman], 46 AD2d 177; Matter of Lublin v Central Islip Psychiatric Center, 56 AD2d 1, 43 NY2d 341.) II. A person who has been acquitted of criminal conduct, as not responsible for his actions as a result of a mental disease or defect, may constitutionally be retained under the custody of the Commissioner of Mental Hygiene, pursuant to CPL 330.20, while he remains dangerous to himself or others. (People ex rel. Henig v Commissioner of Mental Hygiene, 43 NY2d 334; Matter of Lublin v Central Islip Psychiatric Center, 43 NY2d 341; People v Lally, 19 NY2d 27; Matter of Richard E. R., 52 AD2d 927, 40 NY2d 808; People ex rel. Peabody v Chanler, 133 App Div 159, 196 NY 525; People v McNelly, 83 Misc 2d 262; Lee v Kolb, 449 F Supp 1368; People v Johnson, 13 Misc 2d 376; People v Irwin, 166 Misc 751; Millard v Harris, 406 F2d 964.) III. The decision of the Special Term, to release the patient on conditions, was not supported by the evidence. The reversal by the court below of that decision was therefore proper. (Maule v Kauf

      man, 33 NY2d 58; York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128; Humphrey v Cady, 405 US 504; Dixon v Jacobs, 427 F2d 589; Matter of Miller [Sherman], 73 Misc 2d 690, 46 AD2d 177; Matter of Scopes, 59 AD2d 203; Overholser v Leach, 257 F2d 667, 359 US 1013; People v Corrente, 63 Misc 2d 214; People ex rel. Henig v Commissioner of Mental Hygiene, 43 NY2d 334.) IV. The order of the Special Term is unenforceable.
   OPINION OF THE COURT

Jasen, J.

In a tragic incident occurring on Thanksgiving Day, November 25, 1976, appellant Robert Torsney, a New York City police officer, shot and killed a 15-year-old Black youth. He was indicted and charged with second degree murder. At his trial, held in November, 1977, one year after the incident, Torsney interposed as a defense a lack of criminal responsibility for his conduct on the date of the crime charged stemming from a mental disease or defect diagnosed as psychomotor epilepsy. On November 30, 1977, the jury returned a verdict of not guilty by reason of mental disease or defect. (Penal Law, § 30.05.) '

. On that same date, Torsney was ordered committed to the custody of the Commissioner of the Department of Mental Hygiene, petitioner-appellant, pursuant to CPL 330.20 (subd 1) . After initial commitment to Mid-Hudson Psychiatric Center, Torsney was transferred to Creedmoor Psychiatric Center on March 3, 1978. Shortly thereafter, a recommendation was made to the Director of Creedmoor that inasmuch as Torsney was not dangerous or mentally ill, he should be released. On May 19, 1978, a special release committee was convened for the purpose of examining Torsney to determine his suitability for release. After the special release committee agreed with the staffs findings and recommendations, in which the then Director of Creedmoor, Dr. Werner, concurred, the findings and recommendations were reported to the commissioner. The commissioner thereupon convened an independent review panel, which also concurred in the recommendation.

Thereafter, on July 20, 1978, pursuant to CPL 330.20 (subd 2) , the commissioner petitioned the committing court for an order discharging Torsney from his custody. The court ordered a full evidentiary hearing and at the conclusion of which sustained the petition and ordered Torsney released pursuant to CPL 330.20 (subd 3) upon the following conditions: (1) that he not be permitted to carry a gun; (2) that he not be a police officer or peace officer; (3) that he continue as an outpatient at Creedmoor for a period of five years on conditions to be imposed as determined by Creedmoor Psychiatric Center; and (4) if within five years after the conditional release the court should determine after a hearing that for the safety of Mr. Torsney or of others the conditional release should be revoked, the court must recommit him. On cross appeals taken by the District Attorney and by the commissioner and Torsney, the Appellate Division reversed and ordered that Torsney be recommitted to the custody of the Commissioner of Mental Hygiene.

On this appeal, two issues are presented for our review. The threshold issue is whether the Appellate Division properly construed the standard for release of persons held in the custody of the Commissioner of the Department of Mental Hygiene pursuant to CPL 330.20. Contingent upon resolution of this issue is the second issue: namely, whether evaluated under the proper standard for release the weight of the credible evidence presented at the hearing requires the detainee’s continued confinement, discharge or release on condition.

We begin our analysis of the threshold issue with CPL 330.20 (subd 1), which provides in pertinent part: "Upon rendition of a verdict of accquittal by reason of mental disease or defect, the court must order the defendant to be committed to the custody of the commissioner of mental, hygiene to be placed in an appropriate institution in the state department of mental hygiene.” In recently sustaining the constitutionality of the automatic commitment of persons acquitted by reason of mental disease or defect, this court observed that "[a]n individual who has committed an act of violence, and has thus demonstrated his dangerousness, and who has successfully asserted an insanity defense, may quite properly be treated somewhat differently from other individuals who, although they may in fact be potentially equally dangerous as a result of mental problems, have not yet so vehemently demonstrated their dangerousness by violent antisocial behavior.” (People ex rel. Henig v Commissioner of Mental Hygiene, 43 NY2d 334, 338; see, also, People v Lally, 19 NY2d 27; People ex rel. Peabody v Chanler, 133 App Div 159, affd 196 NY 525 [sustaining constitutionality of predecessor statutes to CPL 330.20].) For this reason, persons acquitted under CPL 330.20 may be viewed as an "exceptional class” justifying commitment to the custody of the Commissioner of Mental Hygiene without a prior hearing to determine their mental condition on the date of acquittal.

The purpose of automatic commitment after acquittal of a crime by reason of mental disease or defect is a narrow one: to determine the mental condition of the person committed on the date of acquittal. Notwithstanding the literal terms of CPL 330.20, 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. (People ex rel. Henig v Commissioner of Mental Hygiene, 43 NY2d, at p 339, supra; People v Lally, 19 NY2d, at p 33, supra; People v McNelly, 83 Misc 2d 262, 266; Lee v Kolb, 449 F Supp 1368, 1379.) Moreover, a prompt hearing must be held on this issue, a hearing at which a person committed under CPL 330.20 — like any other involuntarily committed patient seeking release from custody — is entitled to a jury trial. (Mental Hygiene Law, § 9.35; People ex rel. Henig v Commissioner of Mental Hygiene, 43 NY2d, at p 339, supra; People v Lally, 19 NY2d, at pp 34-35, supra.) To permit commitment of a person without such a hearing to determine his present mental condition and dangerousness would constitute a deprivation of due process and equal protection of the law. (See Bolton v Harris, 395 F2d 642, 650-652; Wilson v State, 259 Ind 375; People v McQuillan, 392 Mich 511; State v Krol, 68 NJ 236; State ex rel. Kovach v Schubert, 64 Wis 2d 612, app dsmd 419 US 1117, cert den 419 US 1130.)

The purpose of this hearing, characterized as a civil proceeding, is to determine whether the detainee "may be discharged or released on condition without danger to himself or others.” (CPL 330.20, subd 3.) The Appellate Division equated the standard of dangerousness under CPL 330.20 with the standard of dangerousness for involuntary civil commitment under the Mental Hygiene Law. Specifically, the court incorporated by reference the standard for involuntary admission contained in section 9.37 of the Mental Hygiene Law, which provides for the admission of

"any person who, in the opinion of the director of community services or his designee, has a mental illness for which immediate inpatient care and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others; 'likelihood of serious harm’ shall mean:

"1. substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself, or

"2. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear or serious physical harm.”

In adopting this definitional standard, however, the Appellate Division, although noting that this section requires as a condition precedent to application of the "likelihood of serious harm” test that the patient suffer a mental illness requiring immediate in-patient care and treatment, expressly held that a detainee under CPL 330.20 need not satisfy this criteria to preclude his discharge. In that court’s view, "[a] dangerous detainee [can] be confined even if not mentally ill or in need of immediate treatment, under CPL 330.20.” (66 AD2d 281, 288, n 6.) We disagree.

Unquestionably, the unique status of persons acquitted of a crime by reason of mental disease or defect permits the State to treat this "exceptional class” somewhat differently from other individuals believed suffering from mental disease or defect. Because such persons 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 to the date of acquittal. (People ex rel. Henig v Commissioner of Mental Hygiene, 43 NY2d, at p 340, supra.) Of course, the flaw in viewing this principle as a true presumption is readily apparent: namely, the possibility that years may have intervened between commission of the crime charged and the date of acquittal. The significance of this contingency is further buttressed when consideration is given to the fact that in New York a lack of criminal responsibility by reason of mental illness or defect is a defense rather than an affirmative defense. (Penal Law, § 30.05.) Thus, an acquittal predicated on this ground indicates only that the People failed to prove beyond a reasonable doubt that the defendant was criminally responsible for his act and not that the jury found by a preponderance of the evidence that he was suffering from a mental disease or defect on the date of the commission of the crime charged. (Wilson v State, 259 Ind, at p 385, supra; see, also, Note, Commitment of Persons Acquitted by Reason of Insanity: The Example of the District of Columbia, 74 Col L Rev 733, 744-750.)

Thus, it may be said more accurately that the presumption flowing from an acquittal by reason of mental disease or defect does not presume that a person so acquitted presently suffers from mental disease or defect, but, rather, posits merely that having raised this defense and having previously engaged in antisocial behavior, he has demonstrated sufficient grounds for further examination to determine his present need for treatment and confinement as opposed to immediate release. (See People v McQuillan, 392 Mich 511, 527, supra.) It is for this purpose only — a prompt examination and report as to sanity — that such a person may be automatically committed to the custody of the Commissioner of Mental Hygiene upon acquittal. (People ex rel. Henig v Commissioner of Mental Hygiene, 43 NY2d, at p 339, supra; People v Lally, 19 NY2d, at p 33, supra; Wilson v State, 259 Ind, at p 386, supra; State v Krol, 68 NJ, at p 256, supra; People v McQuillan, 392 Mich, at p 528, supra; see, generally, Hamann, The Confinement and Release of Persons Acquitted by Reason of Insanity, 4 Harv J Leg 55, 65-67.)

Beyond automatic commitment of persons found not guilty by reason of mental disease or defect for a reasonable period to determine their present sanity, justification for distinctions in treatment between persons involuntarily committed under the Mental Hygiene Law and persons committed under CPL 330.20 draws impermissibly thin. Clearly, the Mental Hygiene Law requires for involuntary civil commitment that the patient be mentally ill and in need of immediate in-patient treatment. Absent such a finding, a dangerous propensity is, in itself, insufficient to permit involuntary commitment. In our view, to permit commitment of a person acquitted of a crime by reason of mental disease or defect on a lesser substantive predicate would run afoul of the constitutional guarantees to due process and equal protection of the laws.

In Jackson v Indiana (406 US 715), a mentally defective deaf mute charged with two separate counts of robbery was found incompetent to stand trial and committed to the Indiana Department of Mental Health until certified sane. Counsel for Jackson contended that in seeking to commit Jackson to a mental institution indefinitely, the State should have been required to invoke the standards and procedures for commitment of "feeble-minded” or mentally ill persons provided under Indiana law. In accepting this contention, the court held "that by subjecting Jackson to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses, and by thus condemning him in effect to permanent institutionalization without the showing required for commitment or the opportunity for release * * * Indiana deprived petitioner [Jackson] of equal protection of the laws under the Fourteenth Amendment.” (406 US, at p 730, supra [footnote omitted].)

In reaching this conclusion, the court relied on its prior decision in Baxstrom v Herold (383 US 107), in which the court held that a State prisoner may not be civilly committed at the expiration of his prison sentence on the finding of a Surrogate when the State affords all other civilly committed persons a jury trial on the issue of their sanity. (383 US, at p 110; see United States ex rel. Schuster v Herold, 410 F2d 1071^^^L.den 396 US 847.) "If criminal conviction and imposition of sentence are insufficient to justify less procedural and substantive protection against indefinite commitment than that generally available to all others,” reasoned the court, "the mere filing of criminal charges surely cannot suffice.” (Jackson v Indiana, 406 US, at p 724, supra.) The court then acknowledged that the Baxstrom principle had been extended to commitment upon acquittal by reason of mental disease or defect. (406 US, at p 724, supra, citing Bolton v Harris, 395 F2d 642, supra; Cameron v Mullen, 387 F2d 193; People v Lally, 19 NY2d 27, supra.)

In the present case, we deal with an individual falling conceptually between the petitioners in Baxstrom and Jackson: Torsney has been charged with a crime, has stood trial, and has been acquitted by reason of mental disease or defect. That equal protection mandates that he be afforded the same procedural rights governing his release from custody as any other involuntarily committed person is settled. Similarly, in our view, appellants’ petition for release must be measured by the same substantive standards governing involuntary civil commitment of any other individual. (See Wilson v State, 259 Ind, at p 386, supra.) Thus, we interpret CPL 330.20 as requiring a detainee’s release unless it is found that he is presently dangerous to himself or others by reason of a mental disease or defect. (See Overholser v O’Beirne, 302 F2d 852, 854-855; Starr v United States, 264 F2d 377, 382-383; Newton v Brooks, 246 Ore 484, 490; Mills v State, 256 A2d 752, 757, n 4 [Del]; State ex rel. Leeb v Wilson, 27 Ohio App 2d 1, 2-3.)

As in the case of involuntary civil commitment, it is the need for immediate in-patient treatment which justifies deprivation of liberty upon a theory of dangerousness. (See Gold-stein and Katz, Dangerousness and Mental Illness Some Observations on the Decision to Release Persons Acquitted by Reason of Insanity, 70 Yale LJ 225, 237-239.) A showing that a detainee may be viewed as dangerous because of the prior criminal act for which he was acquitted is insufficient without more to preclude his discharge or release on condition. Distinctions in treatment of persons alleged to be mentally ill cannot rest solely upon the existence of a prior criminal charge or even conviction. (Association of the Bar, City of New York, Special Committee on the Study of the Commitment Procedures and the Law Relating to Incompetents, Second Report, Mental Illness, Due Process and the Criminal Defendant 1.) As Judge Fahy observed in Ragsdale v Overholser (281 F2d 943, 949, 950 [concurring opn]) some 19 years ago: "It is by no means clear that society can continue to deprive a person of liberty by attributing to a jury’s doubt about his mental condition, which led to his acquittal and mandatory commitment, any and all evil or criminal propensities he may be thought to have, and to keep him in confinement because of them. This would transform the hospital into a penitentiary where one could be held indefinitely for no convicted offense, and this even though the offense of which he was previously acquitted because of doubt as to his sanity might not have been one of the more serious felonies.” In the instant case, although faced with the most serious of felonies we must nonetheless be guided by this principle.

With this constitutionally mandated interpretation of CPL 330.20 in mind, we proceed to the second issue in this case: whether the weight of the credible evidence presented at the hearing requires continued confinement or release of the detainee on condition. Torsney committed the crime for which he was acquitted by reason of mental illness or defect on November 25, 1976. Two psychiatrists examined him for the purpose of determining whether he lacked criminal responsibility for his act. Dr. Daniel Schwartz, Torsney’s witness, concluded that as a result of mental defect, which he diagnosed as "psychosis associated with epilepsy”, Torsney did not at the time of the offense "know or appreciate the nature, consequence and wrongfulness of his act.” Dr. Herbert Spiegel, who examined Torsney on behalf of the People, concluded quite to the contrary that although Torsney was "prone to hysterical dissociation under stress”, he was not psychotic and was criminally responsible for his act. Paralleling these findings were those of two psychologists who examined Torsney: Dr. Joy Roy voiced the opinion that Torsney’s conduct on the date of the crime was consonant with the anxiety and bewilderment which one would expect to see in an epileptic equivalent. Dr. Florence Schumer opined, however, that although Torsney "might well have responded in an impulsive and volatile manner to anticipated threat”, little in the record indicated "cognitive pathology, psychoses, or bizarre or disorganized intellective or emotional processes.”

Of course, the question whether on this proof the People failed to demonstrate beyond a reasonable doubt that Torsney was criminally responsible for his act is not now material. Suffice it to say that upon the testimony produced at trial Torsney was acquitted on November 30, 1977 of the crime charged by reason of mental illness or defect. Thereupon he was admitted to Mid-Hudson Psychiatric Center on December 6, 1977, pursuant to the automatic commitment procedure contained in CPL 330.20. Torsney was examined by Dr. Mark Vandenbergh, who concluded that his reasoning and judgment was unimpaired and his insight normal. Dr. Vandenbergh found no evidence of mental disorder. Similarly, Dr. Alan Halpern, a psychologist at Mid-Hudson, who examined Torsney on December 7, determined that he suffered neither from a psychosis, a psychopathic disorder, nor from organic damage. Dr. Halpern did recommend, however, that because Torsney was a "somewhat rigid, impulsive individual”, he was not fit for duty as a beat police officer. Neither doctor believed Torsney was in need of any in-patient treatment.

Shortly thereafter, on January 6, 1978, Torsney was again examined by Dr. Vandenbergh, who found that appellant had "made an excellent adjustment to his present hospitalization.” More specifically, Dr. Vandenbergh observed that "neither before or after the offense [had Torsney] shown any signs of epilepsy”. Dr. Vandenbergh also noted that notwithstanding the neurotic emotional conflicts described in the psychological evaluations produced at trial, Torsney was symptom-free. In Dr. Vandenbergh’s opinion, he showed no symptoms of anxiety, ate and slept well and related normally to people around him, confirming his diagnostic impression that Torsney was without mental disorder.

The final examination of Torsney at Mid-Hudson Psychiatric Center occurred on February 9, 1978. This examination was conducted by Drs. Vandenbergh and Easwara Bhoothalingom, who agreed that Torsney showed no signs of mental disorder. Dr. Bhoothalingom, the Forensic Unit Chief at Mid-Hudson, noted on February 28, just prior to Torsney’s transfer to Creedmoor Psychiatric Center, that Torsney had "been cooperative with no evidence of any symptoms or signs during his stay here which point towards any potential for dangerous behavior.”

On March 3, 1978, Torsney was transferred from Mid-Hudson to Creedmoor, where he was examined upon admission by Dr. John McKnight. Dr. McKnight’s report indicated that Torsney did not appear either dangerous or suicidal and that his physical condition was within "normal limits”. In April, 1978, Dr. Deborah Kaiser, Chief of Service of the Forensic Unit at Creedmoor, recommended to the Director of Creed-moor, Dr. William Werner, that Torsney be released. Accordingly, on May 19, a special release committee was convened by Dr. Werner, consisting of Drs. Joseph Sklar, Sablón Dartigue and John McKnight. It was the unanimous opinion of this committee that Torsney was not suffering from a psychosis, psychopathic disorder or organic damage and that he was not dangerous to himself or others and should be released. The committee did, however, recommend that he not be given duty as a beat police officer.

Upon receipt of this report, Dr. Werner examined Torsney and notified Dr. John Wright, Assistant Commissioner of the Department of Mental Hygiene, that in his opinion Torsney had "recovered from his psychotic episode [showed], no evidence of mental illness and [was] not considered dangerous to himself or others”. Dr. Werner concurred in the recommendation that he be discharged. At the direction of the commissioner, an independent review panel was convened to examine Torsney. This panel, consisting of two independent psychiatrists, Drs. A. Louis McGarry and Stephen Rachlin, together with a certified social worker, Rosalind Silver, found, in a report dated July 6, 1978, that Torsney "can safely be released from the hospital, without danger to himself or others. His history reveals no dangerous behavior other than the instant offense, nor has he subsequently shown any inability to control impulses, any inappropriate display of hostility, nor any behavior which might be considered threatening or dangerous. He voices no intentions to do harm to anyone and is not now mentally ill, having fully recovered from the entity which led to his [acquittal] by reason of mental disease or defect.”

Upon the submission by the Commissioner of Mental Hygiene of an application pursuant to CPL 330.20 requesting Torsney’s discharge or release on condition, the court, at the request of the District Attorney, appointed two independent forensic psychiatrists to examine Torsney and submit recommendations to the court. The first of these psychiatrists, Dr. Milton Hollar, concluded, based upon his examination of Torsney and a review of his records, that he was not psychotic; that no evidence existed to indicate that he was then dangerous to himself or others; and that no justification existed for continued incarceration on psychiatric grounds. The second court-appointed psychiatrist, Dr. Stanley Portnow, similarly concluded in his report: "Mr. Torsney is neither a lunatic or a psychopath and is not a menace to others or to himself. In my opinion, there is nothing about his present mental condition which warrants his continued incarceration, and he appears to be capable of returning to a productive and useful place in society.” In view of the prior history of the case and what Dr. Portnow termed Torsney’s "questionable impulse control and inability to deal with stress”, Dr. Portnow recommended that he be gradually discharged over several weeks to ensure his satisfactory return to the community.

After receiving these reports, the court directed that a hearing be held pursuant to CPL 330.20 (subd 3). At the hearing, which ran a full nine days and at which some 18 WitheSses testified, agreement was unanimous: Torsney was not presently suffering from a mental illness or defect and Was hot a danger to himself or others. Every opinion elicited recommended that he be discharged or released on condition.

The first Witness called by the Attorney-General on behalf of the Department of Mental Hygiene, Dr. Kaiser, testified that during Torsney’s stay at Creedmoor he "exhibited no signs nor symptoms of mental illness. His reality testing [was] good, his judgment [was] good. He [showed] no impulsive behavior. He most certainly [showed] none of the usual signs that one might think of associated with mental illness such as hallucinations, delusions, poor judgment, cognitant problems, any such things. He [showed] no evidence of any such seizure disorder. In short, this person [presented] himself to us and [did] so since his admission as being normal.” Dr. Kaiser further testified that she had observed no evidence of aggressive behavior or assaultiveness on Torsney’s part. Nor had she witnessed any racial prejudice. Moreover, when questioned as to whether she had considered the effect which stress in the outside world might work on Torsney, particularly pressures flowing from the tragic prior incident, Dr. Kaiser testified that those problems had been discussed in depth and that she did not anticipate that Torsney "would become dangerous considering the stresses he may face.”

Dr. Sklar, a member of the special release committee, was called by the District Attorney and testified that upon his examination of Torsney he found him "responsive, goal-directed, mildly depressed” and that he showed "no evidence at that time of an emotional disorder that required in-patient treatment from a clinical point of view.” The witness also testified that in reaching his conclusion that he was not dangerous and should be released, he took into consideration the everyday stresses of life in the community outside the hospital. Dr. Dartigue the second member of the special release committee, also called by the District Attorney, reiterated his agreement with this recommendation and acknowledged that he similarly had considered stress outside the hospital. More specifically, when asked what stress outside the hospital he had considered, Dr. Dartigue responded that he had considered whether Torsney, if put in the same condition as November 25, 1976, would behave the same way. Having considered this possibility, Dr. Dartigue nonetheless recommended release.

Also testifying at the hearing were the two court-appointed independent psychiatrists. Dr. Hollar confirmed the view recommended in his report: namely, that Torsney was not psychotic and not dangerous to himself or others. Although frankly admitting a lack of infallible prescience when queried whether he could say that Mr. Torsney "in no way” had the capacity to repeat the tragic incident of November, 1976, Dr. Hollar explained that in his judgment based upon the control he had demonstrated in the hospital, psychological examinations and his own examination, Torsney was sufficiently in control of himself and he felt free in recommending his discharge.

The second independent psychiatrist, Dr. Portnow, similarly confirmed his findings and recommendation made in the previously submitted report to the court. His testimony supported that of all the other expert witnesses called: Torsney was in his judgment neither mentally ill nor dangerous to himself or others. In view of the prior incident in his history, Dr. Port-now again voiced his opinion that Torsney be released through some form of controlled release program. He acknowledged, however, that the program recommended by Dr. Kaiser, which would have required Torsney to report once a week to an outpatient clinic at the hospital so that he could be continuously evaluated for five years, was in his opinion a suitable program.

Finally, when queried as to his statement in his report concerning Torsney’s "questionable impulse control”, Dr. Port-now explained that although he felt that Torsney was "an impulsive somewhat explosive individual”, he was not mentally ill. Dr. Portnow further clarified that "[ejxplosive personality is the designation given to a personality as opposed to a mental disease or defect which is described primarily as, as the instantaneous, almost without warning, explosion of effect of temperment as [sic] a particular situation.” When asked to provide a reason for his finding that Torsney had an impulsive or explosive personality, Dr. Portnow stated: "Mr. Torsney told me himself that he considered himself to be somewhat impulsive, he was an impulsive buyer, he was a man of action, given to action without thinking first and generally those are the characteristics which one would apply to an impulsive or explosive personality.”

Integrating the testimony elicited at the hearing with the proper standard for discharge or release on condition under CPL 330.20, we conclude that the weight of the credible evidence mandates that the order of the hearing court be reinstated. One thing is abundantly clear: every opinion offered at the hearing substantiated Torsney’s claim that he is neither suffering from a mental illness or defect nor dangerous to himself or others. We reject as constitutionally suspect the interpretation of CPL 330.20 given by the Appellate Division, which would permit a detainee’s continued institutionalization on a vague concept of dangerousness unrelated to mental illness or defect and for which no immediate in-patient treatment is required. As Chief Judge Bazelon cautiously observed: " '[DJangerousness’ is a many splendored thing. Unless muzzled by discriminating analysis, it is likely to weigh against nominally competing considerations the way a wolf weighs against a sheep in the same scales: even if the sheep is heavier when weighed separately, somehow the wolf always prevails when the two are weighed together. Keeping dangerousness on a taut leash is especially difficult where there is danger of murder, since the danger is admittedly grave and since its improbability, which theoretically discounts its gravity, is exceedingly difficult to quantify.” (Covington v Harris, 419 F2d 617, 627.)

An individual’s liberty cannot be deprived by "warehousing” him in a mental institution when he is not suffering from a mental illness or defect and in no need of in-patient care and treatment on a ground which amounts to a presumption of a dangerous propensity flowing from, as in this case, an isolated, albeit tragic, incident occurring years ago. Were this the standard for involuntary institutionalization, logical extension would require that anyone convicted of a violent crime should upon completion of his sentence similarly be required to demonstrate that he or she is not dangerous before his release into the community. (See Matter of Williams, 157 F Supp 871, 876, affd sub nom. Overholser v Williams, 252 F2d 629.) Whatever its label, confinement on a showing of mere propensity amounts to nothing more than preventive detention, a concept foreign to our constitutional order. (Cross v Harris, 418 F2d 1095, 1102; see, generally, Dershowitz, Preventive Confinement: A Suggested Framework for Constitutional Analysis, 51 Tex L Rev 1277.)

Of course, this is not to say that artificial, and perhaps theoretically implausible, lines must be drawn between concepts of mental disease or defect and other impairments of judgment. As the Appellate Division noted: "[Psychiatrists continually redefine their understanding of what a mental disease or defect is.” (66 AD2d 281, 295.) This difficulty has gained added significance since the adoption of the Durham rule as a means of determining a defendant’s criminal responsibility for his conduct pursuant to which mental illness has been construed to encompass psychopathic and sociopathic personalities. (See Goldstein and Katz, Dangerousness and Mental Illness Some Observations on the Decision to Release Persons Acquitted by Reason of Insanity, 70 Yale LJ 225, 238.) The friction between the operation of a perhaps theoretically subjective rule permitting acquittals on something less than uniform notions of mental disease or defect and the cry of due process for objective criteria upon which to predicate continued institutionalization is amply illustrated in the case at bar. Perhaps resolution of this conflict lies in re-evaluation of the scope and applicability of the insanity defense. (See, generally, Burt, Of Mad Dogs and Scientists: The Perils of the "Criminal — Insane”, 123 U Pa L Rev 258, 280-285; German and Singer, Punishing the Not Guilty: Hospitalization of Persons Acquitted by Reason of Insanity, 29 Rutgers L Rev 1011, 1056-1058.) Given the unsettled state of the law in this area, we do not suggest that in a proper case a ’’personality disorder” which resulted in a finding of dangerousness and which required treatment would not be sufficient to preclude a detainee’s discharge or release on condition. Suffice it to say, on the present record it is clear that Torsney suffers from neither a mental illness or defect nor a personality disorder which renders him dangerous to himself or others. He should, therefore, be released pursuant to the conditions properly imposed by the hearing court.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court, Kings County, reinstated.

Meyer, J.

(concurring). I concur in reversal and reinstatement of the order of Mr. Justice Yoswein directing the release of Torsney on condition. I agree that committing a person who has been acquitted under CPL 330.20 to the custody of the Commissioner of Mental Hygiene, without a prior hearing, is constitutionally permissible, but disagree that, except in the most formal sense, this results, as the plurality opinion suggests by its quotation from People ex rel. Henig v Commissioner of Mental Health (43 NY2d 334), from the fact that the individual "has successfully asserted an insanity defense”. The quoted words imply, and both the Henig opinion (43 NY2d, supra, at p 338) and that in People v Lally (19 NY2d 27, 33) flatly state, that what sustains the commitment is the individual’s success in convincing the trier of fact that he was insane when the crime was committed. To the contrary, as the plurality opinion recognizes (at p 674), but the dissenting opinion (at p 689) elides, the burden of proving a defendant’s sanity being on the State, acquittal by reason of mental disease or defect means nothing more than that the People failed to prove sanity, and therefore culpability, beyond a reasonable doubt. Though there has, therefore, been no determination of "mental illness” sufficient to warrant commitment under the Mental Hygiene Law, commitment is, nevertheless, constitutionally permissible for "examination and report as to * * * sanity” (People v Lally, supra, at p 33; plurality opn, at p 674) in light of the prompt hearing required following such a commitment (People ex rel. Henig v Commissioner of Mental Health, supra, at p 340), of the need to protect society from the violent antisocial behavior which by its verdict of "not guilty by reason of mental disease or defect” the jury has necessarily found the individual to have committed (id., at p 338; see, also, Fhagen v Miller, 29 NY2d 348; and Matter of Coates, 9 NY2d 242), and of the individual’s act in entering such a plea.

CPL 330.20 does not, however, deal with how long an individual committed under its provisions may be held or what the relationship of his commitment to mental illness is. It authorizes a hearing at the instance of the individual (subd 5) or of the Commissioner of Mental Hygiene (subd 2), and conditions discharge (or release upon condition) only upon whether that may be done "without danger to himself or to others” (subds 2, 3; cf. subd 4). In my view, examination pursuant to temporary detention under CPL 330.20 must be followed either by release pursuant to hearing under CPL 330.20, if that be the commissioner’s and the court’s conclusion, or by a commitment hearing under the provisions of the Mental Hygiene Law, if the conclusion be that the detainee suffers from "mental illness” warranting warranting commitment under the Mental Hygiene Law, or both suffers from such an illness and is dangerous to himself or others. The point is, as the plurality decision concedes (at p 675), that dangerousness alone is an insufficient basis for involuntary commitment, and that while the commissioner or the detainee may show the detainee’s entitlement to release by showing his lack of dangerousness, the absence of such proof does not authorize continuation of involuntary commitment beyond a reasonable time for purpose of examination and report (cf. O’Connor v Donaldson, 422 US 563, 574-575; Jackson v Indiana, 406 US 715, 738; McNeil v Director, Patuxent Inst., 407 US 245, 249-250).

In summary, my view is that the only criterion for a CPL 330.20 release hearing is danger to self or to others, and that if the State intends to continue a CPL 330.20 commitment beyond the time required for examination and report it must begin a Mental Hygiene Law proceeding and make the showing required for any other civil commitment under that law. Absent such a showing the detainee will be entitled to release, on constitutional grounds via habeas corpus, even though he does not prove in a CPL 330.20 hearing by a preponderance of evidence that he is not dangerous (cf. Jackson v Indiana, 406 US 715, 736, 738, supra).

Wachtler, J.

(dissenting). The court holds today that a man committed to a psychiatric institution because he shot and killed a young boy should be released despite expert psychiatric testimony that under similar circumstances he would be prone to act again with the same uncontrolled violence. I cannot agree with such a result and therefore dissent. The record offers insufficient proof that the appellant, Robert Torsney, no longer suffers from the very symptoms and personality disorder that precipitated the tragic killing of Randolph Evans. Releasing Torsney at this time would not only deprive him of the opportunity for rehabilitation offered in a psychiatric institution, but would also subject the public to the danger that Torsney might again be overcome by uncontrollably destructive impulses.

Torsney was charged with second degree murder for having fatally shot 15-year-old Randolph Evans on November 25, 1976. A New York City police officer on duty in Brooklyn, Torsney fired his weapon without provocation or justification at point blank range at Evans who was on his way home after walking his grandmother to a bus stop. At trial Torsney admitted having shot Evans, but contended that he was not criminally responsible for his actions when the shooting occurred. On November 30, 1977 a jury found him not guilty by reason of mental disease or defect (Penal Law, § 30.05).

After the trial Torsney was committed to the custody of the Commissioner of the Department of Mental Hygiene (CPL 330.20, subd 1). On July 20, 1978 the commissioner filed a petition in Supreme Court seeking Torsney’s release. Represented by independent counsel, Torsney also participated in the proceeding. After conducting a hearing Special Term ordered that he be released subject to certain conditions. The Appellate Division reversed, finding that Torsney had not sufficiently proven that he was no longer a danger to himself or others.

There are essentially two questions in this case: (1) what must a person committed pursuant to CPL 330.20 (subd 1) prove to secure his release? And (2) did Torsney meet the burden of proof?

The statute which prescribes the standard for release, CPL 330.20 (subd 3), provides: "If the court is satisfied that the committed person may be discharged or released on condition without danger to himself or others, the court must order his discharge, or his release on such conditions as the court determines to be necessary. If the court is not so satisfied, it must promptly order a hearing to determine whether such person may safely be discharged or released.”

Although the statute indicates that the critical factor for the court to consider on a petition for release is whether the committed person would pose a "danger to himself or others”, no guidance is provided as to what constitutes a "danger”. Certainly the term is open to various interpretations. In resolving the ambiguity, the Appellate Division construed the term to mean "likely to result in serious physical harm” (66 AD2d 281, 288) which in turn is defined as a "substantial risk of physical harm” (see Mental Hygiene Law, § 9.37, subd [a]). I agree, and the plurality at least seems to agree, that this is a proper and workable definition of dangerousness. However, the plurality would require the discharge of a detainee even though his release would "likely * * * result in serious physical harm to himself or others” if the dangerousness is not causally connected to an identifiable mental disease or defect. In addition the plurality states that to justify confinement of the detainee the mental disease must be treatable. I disagree.

I would hold that the detention of a person committed to a mental institution in accordance with CPL 330.20 (subd 1) should continue unless he proves that he no longer suffers from the symptomatology which made him dangerous.

It is well settled that the person committed pursuant to CPL 330.20 is presumed dangerous until he proves otherwise. As we so recently and unanimously held in Matter of Lublin v Central Islip Psychiatric Center (43 NY2d 341, 344): "Given the clear existence of this condition, as evidenced by the admitted commission of a violent act, it is appropriate that the condition be presumed to continue until the contrary is proven” (emphasis added; People ex rel. Henig v Commissioner of Mental Hygiene, 43 NY2d 334, 340; People v Lally, 19 NY2d 27). Despite this clear pronouncement, the plurality states "that the presumption flowing from an acquittal by reason of mental disease or defect does not presume that a person so acquitted presently suffers from mental disease or defect” (at p 674).

The sole issue confronted in Matter of Lublin v Central Islip Psychiatric Center (43 NY2d 341, 344, supra) and the resolution of that issue was stated as follows: "Must a person who has been validly committed as a result of an acquittal by reason of mental defect or disease, and who at a later time seeks release on the claimed ground that he is no longer dangerous to either himself or others, be required to prove by a fair preponderance of the evidence that he may safely be released? We hold that he must.” A person acquitted of a violent crime by reason of mental disease or defect has unequivocally demonstrated his dangerousness to society if not himself. Although involuntary confinement substantially deprives the committed person of liberty, a fundamental right, the State parens patriae interest in the mentally defective as well as its obligation to ensure public safety require on balance that the burden of proof fall to the detainee (Lublin, supra, at p 345).

There is still the question, however, of what the detainee must prove to secure his release. A resolution to this question depends in part on CPL 330.20 (subds 1, 2) which, in prescribing the standards and procedures for the discharge of detainees, makes no mention whatsoever of any requirement of mental illness to justify continued confinement. The sole consideration, according to the statute, is whether the person "may be discharged * * * without danger to himself or to others” (see McKinney’s 1960 Session Laws of NY, p 2024).

The verdict of not guilty by reason of mental disease or defect presumably resulted from a finding by the jury that the defendant at the time of the wrongful act suffered from symptoms which substantially limited his appreciation of "[t]he nature and consequence of such conduct” or "[t]hat such conduct was wrong” (Penal Law, § 30.05). The purpose for institutionalizing someone acquitted for this reason is twofold: to protect society from the threat that, because of a mental disorder, the detainee might again commit acts of violence (People v Lally, 19 NY2d 27, 33, supra), and to rehabilitate him so that he may be released into society without the risk of further harm. Should the symptoms of the mental disorder disappear both justifications for continued confinement disappear as well. No longer is the detainee, because of a mental disorder, a threat to the safety of himself or others. Nor once the symptoms have finally been remitted, is he in need of rehabilitation. Detention beyond this point would constitute punishment which is impermissible since the confined person was acquitted by the jury and found not to have been responsible for his actions when the wrongful act was committed. It is therefore logical that to secure his release the detainee should have to prove that he no longer suffers from the symptomatology associated with the wrongful act (Insanity Defense in New York: A Report to Governor Hugh L. Carey, New York State Department of Mental Hygiene, at p 50).

But I cannot agree with the plurality that a dangerous detainee must be released if he does not suffer from a "mental disease or defect” which fits into a psychiatric category and has a particular psychiatric label. Over the years the definition of mental illness has shifted according to the prevailing doctrine of psychological thought. In addition, there is often a lack of agreement among psychiatrists as to whether a given mode of unusual or deviant behavior constitutes a "mental illness” at all. We would therefore be unwise to bind our legal determinations to psychiatric theories which are not only undergoing constant re-examination and modification, but which are designed to deal with medical rather than legal problems. Our primary concern must be to protect the public from those who, for psychological reasons, have caused and are likely in the future to cause serious harm to others. To release such a person merely because his symptoms elude classification is indefensible. The issue must be resolved, not by the rigid application of psychiatric categories of mental illness, but rather by reasoned judgment based on careful scrutiny of the record.

Indeed by the very language of section 30.05 of the Penal Law the "mental disease or defect” defense embraces "mental defects”, a term of far broader reach than the less flexible standard of "mental disease”. It is quite possible that a jury could acquit a defendant by reason of a "mental disease or defect” when the defect was evidenced by symptoms not easily labeled as a "disease” listed in a psychiatric lexicon. Yet in the judgment of the jury the symptomatology might have prevented the defendant from appreciating the consequences of his conduct, thereby justifying application of the "mental disease or defect” defense. It would be a frightful paradox to release a detainee still manifesting the same symptoms because his mental defect could not be labeled in psychiatric terms — even though the jury might well have predicated its acquittal exclusively on the symptoms. By its holding today the plurality exalts this paradox to law.

To accomplish this dubious result, the plurality contends that it is following the constitutional mandate to afford detainees equal protection of the laws. Because a person cannot be civilly committed unless he is "mentally ill”, the plurality holds that a person who has been acquitted of a killing by reason of mental disease or defect must be released unless he too is "mentally ill”, despite the absence of any such requirement in CPL 330.20. The equation fails because there is a critical distinction between the two classes; the person acquitted of a violent crime by reason of mental defect has necessarily demonstrated by his own hand that he is a menace to society, whereas the person sought to be civilly committed has not. The State may not ignore the greater threat posed by the acquitted person. The compelling State interest to shield the public from this threat justifies that the two classes be dealt with somewhat differently (cf. People ex rel. Wayburn v Schupf, 39 NY2d 682; Matter of Richard E. R., 52 AD2d 927). Indeed the plurality itself recognizes that "the unique status of persons acquitted of a crime by reason of mental disease or defect permits the State to treat this 'exceptional class’ somewhat differently from other individuals believed suffering from mental disease or defect” (at p 673).

Nor can I agree with the plurality’s position that institutionalization may not continue if the mental defect is untreatable. Surely if a person acquitted of a violent crime by reason of a mental defect is compulsively homicidal because of a psychiatric disorder, the fact that the disorder is untreatable does not justify the person’s release and return to society.

Before turning to the hearing record on the application for release, it is instructive to review briefly reports of the psychiatrists and psychologists presented at the murder trial. Dr. Herbert Spiegel concluded that Torsney is "prone to hysterical dissociation under stress”, and Dr. Florence Shumer found Torsney to be "volatile” and "impulsive”. According to Dr. Daniel Schwartz, Torsney was suffering from psychomotor epilepsy. Dr. Joy Roy’s examination of Torsney revealed that "[w]hen he feels attacked and threatened the aggression escapes the censor and may erupt in impulsive behavior.” When this trial evidence is compared to the testimony presented at the hearing, it becomes all too apparent that Torsney’s condition has never changed substantially and that he remains as dangerous today as he was on the day he shot Randolph Evans.

At the hearing Dr. Stanley Portnow, one of the two independent court-appointed psychiatrists, noted that Torsney was not suffering from a classical form of psychosis or neurosis but rather labeled Torsney’s condition a "personality disorder”. Dr. Portnow further stated: "My diagnosis would have been constant throughout the entire spectrum of events and that diagnosis would read 'impulsive or explosive personality’ ”. "Stress”, according to Dr. Portnow, "is frequently the trigger by which the impulsive personality fires off”. He also expressed his belief that Torsney should face stress in small quantities to be reasonably sure that another catastrophe would not occur. Explaining why he recommended a gradual release procedure the doctor said: "I attempted to protect both Mr. Torsney and the community by recommending a prerelease procedure to minimize the severity of the stress upon this impulsive personality which already, on one occasion, has exploded, the result having been a catastrophe.” The other court-appointed psychiatrist, Dr. Milton Hollar, agreed that Torsney is "impulsive”, "volatile” and "explosive”. Dr. Hollar also feared that under stressful circumstances Torsney might erupt again. Nevertheless the doctor recommended Torsney’s release because as a nonpsychotic patient, Torsney’s institutionalization was not medically warranted.

During the period that Torsney was detained in the Mid-Hudson Psychiatric Center his principal therapist was Dr. Mark Vandenbergh who conducted five to eight sessions with Torsney of about one hour each. Dr. Vandenbergh stated that Torsney was susceptible to hysterical dissociative reactions under stress. It was such a reaction that precipitated the slaying of Evans, and according to Dr. Vandenbergh a violent explosion could occur again under similar circumstances. In view of these findings, Dr. Vandenbergh’s conclusion that Torsney was neither mentally ill nor in need of treatment are of little moment. Likewise, Dr. Alan Halpern, a staff psychologist at Mid-Hudson who examined Torsney only once, found some evidence of a neurotic character disorder — an hysterical personality. Dr. Halpern also observed that Torsney consistently seemed to lose his emotional control when faced with emotionally laden test situations. The only other therapist at the Mid-Hudson facility to examine Torsney was Dr. Easwara Bhoothalingom, the Forensic Unit Chief. Although he, too, examined Torsney but once, he nevertheless confirmed the familiar diagnosis of "hysterical reaction dissociative type”. It is noteworthy too that Dr. Bhoothalingom conceded that no special treatment had been administered to Torsney at Mid-Hudson.

Dr. Leslie Bowling, a staff psychologist at Creedmoor Psychiatric Center, was appointed by the court to administer a battery of psychiatric tests to Torsney, who had not previously been tested at Creedmoor, although he had already been there for six months. When asked if Torsney, because of his impulsive personality, had the capacity to act the same way as he had acted on the day of the killing, Dr. Bowling answered "yes”, but added that there was no way to be certain. Nevertheless because he deemed Torsney’s condition untreatable, Dr. Bowling recommended release despite the apparent danger.

Insofar as the findings of the special release committee, comprised of Drs. Sablón Dartigue, Joseph Sklar and John McKnight, are concerned, it is clear that only Dr. McKnight had had any significant contact with the patient. Indeed Dr. Sklar admitted that he was completely unfamiliar with Torsney’s background. Dr. McKnight diagnosed Torsney’s condition as "hysterical neurosis dissociative type in remission”, marked by inappropriate reaction to stress. Yet he recommended that Torsney be released on condition that he not be a policeman. Similarly the independent review panel at Creed-moor conducted no independent psychological evaluation of Torsney, but instead based its recommendation on a perusal of Torsney’s hospital records and an hour and a half interview. Interestingly, Dr. Louis McGarry, a member of the panel, stated that Torsney’s personality disorder was treatable, but that the patient was not receptive to treatment.

It is most important to remember that in analyzing this testimony, the trier of the facts need not accept the ultimate conclusions of expert witnesses regarding a patient’s dangerousness or the propriety of his continued confinement, for the underlying facts as attested to by the witnesses may support contrary conclusions (cf. Cross v Harris, 418 F2d 1095, 1100-1101). Hence although several psychiatrists testified that Torsney should be released, I would agree with the view expressed by the Appellate Division that their testimony strongly indicates the need for his further confinement.

The hearing testimony overwhelmingly demonstrates that Torsney has remained as volatile and explosive as he was on the date of the killing. The evidence shows that his explosiveness is a manifestation of a personality disorder as an hysterical dissociative reaction, the same diagnosis offered by Dr. Spiegel at the murder trial. According to these experts it was this disorder that impelled Torsney to kill Randolph Evans, and according to the same experts it is this disorder that could drive Torsney to commit a similar act of violence in the future. Clearly Torsney’s condition has not changed. Indeed he has not received individualized treatment at either Mid-Hudson or Creedmoor.

The plurality is concerned that we not " 'transform the hospital into a penitentiary where one could be held indefinitely’ ” (at p 677, quoting Ragsdale v Overholser, 281 F2d 943, 949-950). I agree, of course, that hospital confinement should never be abused to deprive someone of his liberty unfairly. However, when a person, driven by an explosive personality disorder, has proven by an act of senseless violence that he is a menace to others, so long as the psychological condition persists it is our obligation to protect the public from further acts of violence that he may commit.

Accordingly, I would affirm the order of the Appellate Division.

Judges Jones and Fuchsberg concur with Judge Jasen; Judge Meyer concurs in a separate opinion in which Judge Fuchsberg also concurs in the following memorandum: Since I see no inconsistency between the views expressed by Judge Jasen in the plurality opinion and those by Judge Meyer in his concurrence, I join in both; Judge Wachtler dissents and votes to affirm in another opinion in which Chief Judge Cooke and Judge Gabrielli concur.

Order reversed, etc.

      . CPL 330.20 (subd 3) provides: "If the court is satisfied that the committed person may be discharged or released on condition without danger to himself or others, the court must order his discharge, or his release on such conditions as the court determines to be necessary. If the court is not so satisfied, it must promptly order a hearing to determine whether such person may safely be discharged or released. Any such hearing shall be deemed a civil proceeding. After such a hearing, the committed person must be discharged, released on such conditions as the court determines to be necessary, or recommitted to the commissioner of mental hygiene. The commissioner of mental hygiene must make suitable provision for the care and supervision by the department of mental hygiene of persons released conditionally under this section.”

      . This condition parallels CPL 330.20 (subd 4), which provides: “If within five years after the conditional release of a committed person, the court shall determine, after a hearing, that for the safety of such person or the safety of others his conditional release should be revoked, the court must forthwith order him recommitted to the commissioner of mental hygiene subject to discharge or release only in accordance with the procedure set forth in subdivisions two, three and five of this section.”

      . similar reasons, the court held that due process requires that a of standing trial be institutionalized for no longer than a 'ne the probability of his regaining capacity to stand trial the event this contingency were found unlikely, "the ustomary civil commitment proceeding that would be

      . Pending trial, Torsney remained free on bail, without incident.

      . Dr. McKnight died prior to the hearing.

      . We do not suggest, as the dissenters would have us do, that a person suffering from a mental disease or defect which is "untreatable” and who constitutes a danger to himself and society as a result of this disease or defect may not be institutionalized. In such instances it is obvious that the individual is in need of treatment. The stark reality that an effective mode of treatment has at a given point in time remained elusive does not dictate a contrary result.

      . In fact, as the Appellate Division noted, there presently exists a bill in the Legislature calling for the establishment of "a special commission to investigate the history, use, medical justification, impact upon the penal system, and the effect on the safety and welfare of the residents of this state of the availability and use of the defense of criminal insanity in criminal proceedings in this state.” (An Act to create a special commission to study the defense of insanity in criminal proceedings, S 1325, A 1782, 202d Sess [1979].)

      . In this regard, we note that Torsney, suspended from the police department pending his trial, was dismissed from the department on June 13,1979.

      . Under the circumstances of this case I need neither accept nor reject as "mental illness” the plurality’s reference (at p 684) to "personality disorder” or the dissent’s reliance (at p 690) on "symptomatology”. The subject would appear, however, to be one for legislative study in view of the difference between the broad definition of “mental illness” in subdivision 20 of section 1.03 of the Mental Hygiene Law and section 28 of the General Construction Law and the more limited term "mental disease or defect” appearing in section 30.05 of the Penal Law. The importance, both to individual liberty and to the protection of society against violence, of clear legal definition is emphasized by the inability of the medical profession to reach a clear consensus on what "mental illness” includes. For a comprehensive study of possible legislative reform see Morris, The Insanity Defense: A Blueprint For Legislative Reform.

      . Whether it authorizes imposition of conditions as provided in the order under review is not before us, since Torsney’s appeal on this point goes to the construction of the statute rather than to its constitutionality.


author: Jasen, J. Gabrielli and Wachtler, JJ.

text:
    The People of the State of New York, Appellant, v Harold Haff, Respondent. The People of the State of New York, Appellant, v William Phears, Respondent. The People of the State of New York, Appellant, v William Landman, Respondent.
    Argued June 4, 1979;
    decided July 10, 1979

      POINTS OF COUNSEL

      Denis Dillon, District Attorney (Judith K. Rubinstein and William C. Donnino of counsel), for appellant in the first, second and third above-entitled actions. The indictment charged a crime.

      John Joseph Sutter and Ruth C. Balkin for respondent in the first, second and third above-entitled actions.
    I. The indictment is void. (For respondent in the first above-entitled action: Gojack v United States, 384 US 702; De Gregory v New Hampshire Attorney Gen., 383 US 825; Columbia Broadcasting v Democratic Committee, 412 US 94; Gooding v Wilson, 405 US 518; Coates v Cincinnati, 402 US 611; Keyishian v Board of Regents, 385 US 589; People v Shifrin, 301 NY 445; People v Wallace & Co., 282 NY 417; People v Adamkiewicz, 298 NY 176; People v Phyfe, 136 NY 554.) (For respondent in the second above-entitled action: Gojack v United States, 384 US 702; De Gregory v New Hampshire Attorney Gen., 383 US 825; Columbia Broadcasting v Democratic Committee, 412 US 94; Gooding v Wilson, 405 US 518; Coates v Cincinnati, 402 US 611; Keyishian v Board of Regents, 385 US 589; People v

      Shifrin, 301 NY 445; People v Wallace & Co., 282 NY 487; People v Adamkiewicz, 298 NY 176; Saia v New York, 334 US 558.) (For respondent in the third above-entitled action: Gojack v United States, 384 US 702; De Gregory v New Hampshire Attorney Gen., 383 US 825; Sweezy v New Hampshire, 354 US 234; Columbia Broadcasting v Democratic Committee, 412 US 94; Gooding v Wilson, 405 US 518; Coates v Cincinnati, 402 US 611; Keyishian v Board of Regents, 385 US 589; People v Wallace & Co., 282 NY 417; People v Adamkiewicz, 298 NY 176.) II. Defendant was not proven guilty beyond a reasonable doubt in the first and third above-entitled actions. (For respondent in the first above-entitled action: People v Brown, 25 NY2d 374; People v Sandgren, 302 NY 331; People v Elmore, 277 NY 397; People v Russell, 266 NY 147; People v Geyer, 196 NY 364; People v Sweeney, 213 NY 37; People v Cohen, 223 NY 406; People v Clougher, 246 NY 106; People v Brooks, 34 NY2d 475; People v Basch, 36 NY2d 154.) (For respondent in the third above-entitled action: People v Wheatman, 31 NY2d 12, 409 US 1027; People v Basch, 36 NY2d 154.) II. That the Federal prosecution of William Phears collaterally estopped any further prosecution of defendant by the State of New York in the second above-entitled action, (United States v Oppenheimer, 242 US 85; Sealfon v United States, 332 US 575; Hoag v New Jersey, 356 US 464; Ashe v Swenson, 397 US 436; Matter of Levy v Association of Bar of City of N. Y., 37 NY2d 279; Matter of McGrath v Gold, 36 NY2d 406; United States v Musgrave, 483 F2d 327, 414 US 1023; Read v Sacco, 49 AD2d 471; People v Abbamonte, 43 NY2d 74; Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560.) III. That the selective prosecution of defendant violates the constitutional guarantee of equal protection in the first, second and third above-entitled actions. (For respondent in the first and third above-entitled actions: Ex parte Virginia, 100 US 339; People v Acme Markets, 37 NY2d 326.) IV. That the failure of the court to render a verdict within a reasonable time deprived the court of jurisdiction to render a verdict in the first and third above-entitled actions. (People v South, 41 NY2d 451.) IV. That the judgment of the court below should be affirmed and the indictment dismissed in the interest of justice in the second above-entitled action. (People v Kwok Ming Chan, 45 AD2d 613; People v Davis, 55 Misc 2d 656; People v Clayton, 41 AD2d 204; People v Belge, 41 NY2d 60.)
   OPINION OF THE COURT

Jasen, J.

Defendants, former public officers of the Town of Hemp-stead, were indicted and convicted of violating subdivision 3 of section 107 of the Civil Service Law, which essentially prohibits public officers and employees from utilizing their authority or influence to induce payment of political assessments by other public officers or employees. The Appellate Term reversed defendants’ convictions, on the law, and dismissed the indictments, concluding that the indictments did not state a crime under subdivision 3 of section 107. The People now appeal pursuant to leave granted by a Judge of this court.

Subdivision 3 of section 107 of the Civil Service Law provides: "Political assessments. No officer or employee of the state or any civil division thereof shall, directly or indirectly, use his authority or official influence to compel or induce any other officer or employee of the state or any civil division thereof, to pay or promise to pay any political assessment, subscription or contribution. Every officer or employee who may have charge or control in any building, office or room occupied for any governmental purpose is hereby authorized to prohibit the entry of any person, and he shall not knowingly permit any person to enter the same for the purpose of making, collecting, receiving or giving notice therein, of any political assessment, subscription or contribution; and no person shall enter or remain in any such office, building or room, or send or direct any letter or other writing thereto, for the purpose of giving notice of, demanding or collecting a political assessment; nor shall any person therein give notice of, demand, collect or receive any such assessment, subscription or contribution. No person shall prepare or take any part in preparing any political assessment, subscription or contribution with the intent that the same shall be sent or presented to or collected of any officer or employee subject to the provisions of this chapter, and no person shall knowingly send or present any political assessment, subscription or contribution to or request its payment of any said officer or employee. Any person violating any provision of this subdivision shall be guilty of a misdemeanor.”

The indictments at issue charged that defendants Phears, Half and Landman, the Commissioners of Water, Highways and Sanitation of the Town of Hempstead, respectively, did at various times "within a building occupied for a governmental purpose give notice to certain of [their] subordinates who were then employees subject to the provisions of the Civil Service Law of the State of New York that political assessments, subscriptions and contributions were to be received and collected by such subordinates on behalf of a political organization.” Construing these indictments as charging defendants merely with "advising” their subordinates that they would be receiving, and collecting political assessments, subscriptions or contributions, the Appellate Term concluded that the indictments failed to state a crime because, in its view, subdivision 3 of section 107 did not prohibit such conduct but, rather, prohibited only the giving of notice of a political assessment or the demanding, collecting or receiving of any political assessment. On this ground alone the Appellate Term reversed defendants’ convictions and dismissed the indictments. We similarly address only this question. There should be a reversal.

It is well-settled law that an indictment must charge all of the legally material elements of the crime charged and allege that the defendant committed the acts which comprise those elements. (People v Iannone, 45 NY2d 589, 594; People v Corbalis, 178 NY 516, 520-521.) Inherent in this requirement is the principle that no act or omission constitutes a crime except as prescribed by statute. (People v Knapp, 206 NY 373, 380.) Contrary to the conclusion reached by the Appellate Term, we believe that subdivision 3 of section 107 of the Civil Service Law prohibits the conduct charged in the instant indictments.

Specifically, this section provides that no person in any office, building or room occupied for any governmental purpose shall "give notice of, demand, collect or receive any [political] assessment, subscription or contribution.” Interpreting these words as commonly understood, we believe a notice given by a public officer to his subordinates that they are to collect and receive political assessments, subscriptions or contributions on behalf of a political organization falls within this proscription. By "advising” their subordinates of this fact, defendants gave notice of a political assessment within the meaning of this section. Nothing in subdivision 3 of section 107 limits its prohibition to the giving of notice of a political assessment to the ultimate target of the assessment, and we see no legitimate reason for implying such a restrictive gloss.

Accordingly, the orders of the Appellate Term should be reversed and the cases remitted to the Appellate Division, Second Department, for a review of the facts and questions of law not previously considered.

Gabrielli and Wachtler, JJ.

(concurring). We agree that the indictments facially charge a crime to the extent that the defendants are charged with giving notice of a political assessment in a public building (Civil Service Law, § 107, subd 3). An indictment cannot be said to be legally insufficient if it literally employs the language of the statute. Thus the order of the Appellate Term should be reversed. But we do not agree with the majority that there may have been a violation of the spirit as well as the letter of the law. That can only be determined by reviewing the proof submitted at the trial or the statements made at the time of the plea (cf. People v Serrano, 15 NY2d 304). The sufficiency of that evidence must now be reviewed by the Appellate Division (cf. People v Fitzgerald, 45 NY2d 574).

We would note, however, that the purpose of the statute is to protect public employees from being coerced into paying political contributions. Here, however, there was no claim of coercion or that the defendants ever told any public employee that he should make a political contribution. Instead the defendants are charged solely with mentioning political contributions in a public building. The Legislature could not have intended our public buildings to pose such a grave danger to the unwary speaker.

It is fundamental that criminal statutes should not be read "with all literalness” (People v Martell, 16 NY2d 245, 247; People v Klein, 16 NY2d 263; People v Fiedler, 31 NY2d 176; cf. People v Brooks, 34 NY2d 475, 478). The court’s role is to carry out the purpose of the statute and "to get the sense of a statute one must read the whole of it” (People v Martell, supra, p 247). In this case, however, one phrase has been plucked out of context and applied blindly to conduct which, in our view, did not involve any element of coercion.

It is also significant to note that although this statute was enacted nearly a century ago, there is no reported case in which the remarks made by these defendants have been held to constitute a violation of the law. That perhaps is the best indication that these prosecutions go well beyond "the fair scope of the statutory mandate” (People v Case, 42 NY2d 98, 101; see, also, People v Martell, supra, p 247).

Chief Judge Cooke and Judges Jones, Fuchsberg and Meyer concur with Judge Jasen; Judges Gabrielli and Wachtler concur in result in a memorandum.

In each case: Order reversed and the case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.


text:
    In the Matter of the Estate of Leo K. McManus, Deceased. Joseph M. McManus, Sr., Respondent; Virginia A. McManus, as Executrix of Leo K. McManus, Deceased, Appellant. In the Matter of the Estate of Mary F. McManus, Deceased. Joseph M. McManus, Sr., et al., Respondents; Leo K. McManus, as Executor of Mary F. McManus, Deceased, Appellant.
    Argued March 20, 1979;
    decided April 24, 1979

      APPEARANCES OF COUNSEL

      Arthur J. Powers and Edward S. Andrews for appellants.

      Terrence P. O’Reilly for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Inasmuch as appellants and their predecessors in interest were not beneficially interested in the trust created in the will of John J. McManus, who died in 1935, they lack standing to challenge the actions of its trustee (Cashman v Petrie, 14 NY2d 426, 430). Accordingly, their allegation that a breach of trust occurred in 1941, when the trustee transferred the corpus of the trust, was properly rejected.

Given this disposition of the matter, we need not decide whether the conduct of the trustee comported with the terms of the trust, but if we were to reach the question, because of the special situation presented here, we state that we would affirm for the reasons stated in the opinion of Mr. Justice James D. Hopkins at the Appellate Division.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed.


text:
    In the Matter of Santa M. Maida, Appellant, v New York City Teachers’ Retirement Board et al., Respondents.
    Argued March 19, 1979;
    decided April 24, 1979.

      APPEARANCES OF COUNSEL

      Benjamin M. Zelman for appellant.

      Allen G. Schwartz, Corporation Counsel (Carolyn E. Demarest and L. Kevin Sheridan of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (62 AD2d 942).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    Charles P. Martin, Appellant, v Alabama 84 Truck Rental, Inc., et al., Respondents, et al., Defendant.
    Argued March 26, 1979;
    decided April 24, 1979

      APPEARANCES OF COUNSEL

      Alan Leonard Levy and Eugene A. Wolkoff for appellant.

      John Sherman, Lewis I. Wolf and Abraham Shapiro for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

On this record we cannot agree with the plaintiff that the court committed error in refusing to charge the emergency doctrine as a justification for the plaintiffs speeding at the time of the accident. This is particularly so when considered in light of the charge given by the court that the emergency doctrine has no application where the plaintiff participated in the creation of the emergency (cf. Johnson v Hickson, 43 NY2d 906, 908). Nor do we agree that the court erred in allowing cross-examination on the plaintiffs failure to renew his driver’s license. Although such testimony is inadmissible on the issue of negligence, the record reveals that the court allowed the jury to consider this solely on the issue of credibility. The nature and extent of the cross-examination on the question of credibility is within the sound discretion of the Trial Judge. and therefore beyond our review (Richardson, Evidence, § 500, at p 485).

We have reviewed plaintiffs other contentions of prejudicial error allegedly committed by the trial court and find such contentions insufficient to require a reversal.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed.


text:
    The People of the State of New York, Respondent, v Theodore Jenkins, Appellant.
    Argued March 27, 1979;
    decided April 24, 1979

      APPEARANCES OF COUNSEL

      Matthew Muraskin, Michael J. Obús and Leslie P. Rudman for appellant.

      Denis Dillon, District Attorney (Burton T. Ryan, Jr., and William C. Donnino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The record reveals that thé defendant’s challenge to the existence of probable cause for his arrest was directed to the sufficiency of the evidence rather than its reliability. As to the latter, since the motion to suppress did not attack the underlying basis for the police alarm, the presumption of probable cause to issue it remained (see People v Lypka, 36 NY2d 210). The People therefore were not called upon to rebut the presumption by an evidentiary showing. And, absent attack on the bulletin, we find the other facts and circumstances sufficient to support the now affirmed finding of probable cause. It follows that the confession was not the fruit of an unlawful arrest.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Robert A. Wander, Appellant.
    Argued March 23, 1979;
    decided April 24, 1979

      APPEARANCES OF COUNSEL

      Gerald J. Callahan, John F. Middlemiss, Jr., and Gair G. Betts for appellant.

      Patrick Henry, District Attorney (Vincent A. Malito of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

Irrespective of whether the police conduct in this case is viewed as something less than "interrogation”, it is obvious that the defendant’s request to remain silent was not scrupulously honored, requiring as a consequence the suppression of his oral statement. (People v Grant, 45 NY2d 366, 375-376; see People v Buxton, 44 NY2d 33, 37.) Given the nature and quantum of proof offered at trial, it cannot be said that it is clear beyond a reasonable doubt that this error did not contribute to defendant’s conviction. (See People v Almestica, 42 NY2d 222, 224; People v Crimmins, 36 NY2d 230, 237.)

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order reversed, etc.


text:
    In the Matter of Richard Linton, Appellant, v Board of Education of the Yonkers City School District et al., Respondents.
    Argued March 27, 1979;
    decided April 24, 1979
    APPEARANCES OF COUNSEL
    A. Michael Weber and James R. Sandner for appellant.

      Eugene J. Fox, Corporation Counsel (Arthur J. Doran, Jr., of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, with costs.

Petitioner had been teaching mathematics with but a provisional certification for several years. In due course, the board of education preferred charges against petitioner alleging that he was incompetent to continue teaching for lack of a permanent certification (Education Law, § 3012, subd 2). Following a hearing before a panel, the charges were sustained by the board of education on July 8, 1976 (Education Law, § 3020-a). The board made a finding that petitioner, for a period of six and one-half years, had failed to take the necessary steps to acquire permanent certification as required by law, and discharged the petitioner. The Appellate Division affirmed. The failure to currently hold a valid certificate, as here, constitutes substantial evidence which supports a finding that the teacher is incompetent to serve (Matter of Amos v Board of Educ., 43 NY2d 706, affg 54 AD2d 297; Matter of Kobylski v Board of Educ., 33 AD2d 603). In these circumstances we cannot say that the penalty imposed can be considered to be so shockingly disproportionate to the offense as to amount to an abuse of discretion as a matter of law (Matter of Pell v Board of Educ., 34 NY2d 222; see, also, Matter of Amos v Board of Educ., supra).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Judgment affirmed.