| Matter of John Z. (Commissioner of N.Y. State Off. of MentalHealth) |
| 2015 NY Slip Op 04361 [128 AD3d 1249] |
| May 21, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of John Z. Commissioner ofthe New York State Office of Mental Health, Respondent; John Z., Appellant. |
John Z., Comstock, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (Pritzker, J.), entered June 20,2014 in Washington County, which, in a proceeding pursuant to CPL 330.20, partiallydenied respondent's motion to seal the record of the proceeding.
Respondent was found not guilty of various crimes by reason of mental disease anddefect. He was also convicted of other crimes and is currently serving a prison sentence.In 2013, petitioner applied for a recommitment order pursuant to CPL 330.20, arguingthat respondent has a dangerous mental disorder and that he currently constitutes aphysical danger to himself and others. Respondent moved to seal the recommitmentproceedings and for a hearing to determine the source of alleged leaks of informationregarding the proceeding to the media. Supreme Court partially granted respondent'smotion, ruling that his clinical treatment records, related hospital records and unrelatedmedical records would be sealed, but otherwise denied the motion. Respondent nowappeals.
Respondent contends that Supreme Court should have ordered a blanket sealing ofthe record and proceedings pursuant to Mental Hygiene Law §§ 9.31(f) and 33.13. Generally, individuals acquitted by the defense of mental disease or defectare accorded the same rights as patients under the Mental Hygiene Law (see CPL330.20 [17]). Mental Hygiene Law § 9.31 (f) provides that papers filed withthe county clerk regarding involuntary admissions on medical [*2]certification shall be sealed. Pursuant to Mental HygieneLaw § 33.13, clinical records for patients shall not be made public(see Mental Hygiene Law § 33.13 [c]).
Here, respondent was subject to CPL 330.20 based upon his acquittal of criminalcharges by reason of mental disease or defect. A lack of responsibility for criminalconduct by reason of mental disease or defect is an affirmative defense that a defendantmust raise and prove by a preponderance of the evidence (see Penal Law§§ 25.00 [2]; 40.15). By avoiding criminal penalties and becomingsubject to CPL 330.20, "[t]his places insanity acquittees in a significantly differentposture than involuntarily committed civil patients" (Matter of Jamie R. v Consilvio, 6 NY3d 138, 141 n 2[2006]), and "rational differences between procedures for commitment and releaseapplicable to defendants found not responsible and persons involuntarily committedunder the Mental Hygiene Law are justifiable" (1981 Rep of NY Law Rev Commn, 1981McKinney's Session Laws of NY at 2264; see Matter of Jamie R. v Consilvio, 6NY3d at 141 n 2). In light of this distinction, we agree with Supreme Court that theblanket sealing of the record that is specifically applicable to the involuntarily admissionof civil patients under Mental Hygiene Law § 9.31 (f) is not applicable torespondent (see People v Kahan, 115 Misc 2d 725, 736-737 [1982]).
We reach a different conclusion, however, regarding defendant's clinical record.Pursuant to Mental Hygiene Law § 33.13, a clinical record for each patientor client shall be kept containing "information on all matters relating to the admission,legal status, care, and treatment of the patient or client and shall include all pertinentdocuments relating to the patient or client" (Mental Hygiene Law § 33.13[a]) and "such information about patients or clients . . . shall not be a publicrecord," subject to certain exceptions (Mental Hygiene Law § 33.13 [c]).Although Supreme Court ruled that respondent's clinical treatment records, relatedhospital records and unrelated medical records must be sealed, it is unclear if otherinformation intended to be included in his clinical record under Mental Hygiene Law§ 33.13 (a) would be made public. In our view, respondent is entitled to thefull protection of Mental Hygiene Law § 33.13, and all informationcontained in his clinical record, as defined in Mental Hygiene Law § 33.13(a), shall not be made public, subject to the statutory exceptions (see MentalHygiene Law § 33.13 [c]).
Finally, Supreme Court properly denied respondent's request for a fact-findinghearing to uncover the source of alleged disclosures of information to the media, as thereis no evidence of any unauthorized disclosure of information.[FN*] Respondent's remaining contentionshave been considered and found to be without merit.
[*3] Peters, P.J., Egan Jr. and Lynch, JJ., concur. Orderedthat the order is modified, on the law, without costs, by reversing so much thereof asdenied that part of respondent's motion seeking that his clinical record be sealed pursuantto Mental Hygiene Law § 33.13 (c); motion granted to that extent; and, asso modified, affirmed.
Footnote *:Respondent also arguesthat Supreme Court abused its discretion with regard to whether the general public willbe allowed to attend future hearings (see 22 NYCRR 109.1). The record reflectsthat, when addressing this issue, the court stated that respondent had not made anyrequest to close the courtroom. Although the court indicated that any future request that ahearing be closed would be scrutinized within the context of balancing the public interestin the matter with respondent's privacy rights, such a statement is not appealable, as it didnot involve some part of the merits or affect a substantial right of the parties (seeCPLR 5701 [a] [2] [iv], [v]; Cuomo v Long Is. Light. Co., 71 NY2d 349, 354[1988]; Kroemer v Pensgen,38 AD3d 1239 [2007]).