People v. Wachtel

Full title: The People of the State of New York, Plaintiff, v. Henry Wachtel…

Court: Supreme Court, New York County

Date published: Sep 28, 2018

61 Misc. 3d 1206 (N.Y. Sup. Ct. 2018)

2018 N.Y. Slip Op. 51378

110 N.Y.S.3d 796

Opinion

1669/12

09-28-2018

The PEOPLE of the State of New York, Plaintiff, v. Henry WACHTEL, Defendants.

Appearing on behalf of the defendant: Lloyd Epstein, Esq., Ira Mickenberg, Esq., Epstein & Weil LLC, 225 Broadway, Suite 1203, New York NY 10007, (212) 732-4888 Appearing on behalf of the People: Assistant District Attorney Stuart Silberg, Assistant District Attorney Courtney Groves, District Attorney of the County of New York, 1 Hogan Place, New York, NY 10013, (212) 335-9000

Jill Konviser, J.

Appearing on behalf of the defendant: Lloyd Epstein, Esq., Ira Mickenberg, Esq., Epstein & Weil LLC, 225 Broadway, Suite 1203, New York NY 10007, (212) 732-4888

Appearing on behalf of the People: Assistant District Attorney Stuart Silberg, Assistant District Attorney Courtney Groves, District Attorney of the County of New York, 1 Hogan Place, New York, NY 10013, (212) 335-9000

Jill Konviser, J.

On April 10, 2012, nineteen-year old Henry Wachtel, a self-medicating polyamorous substance abuser, with Juvenile Myoclonic Epilepsy, Attention Deficit Hyperactivity Disorder, Antisocial Personality Disorder, Borderline Personality Disorder, Conduct Disorder, Adjustment Disorder with Conduct Issues, Personality Disorder not Otherwise Specified, Major Depressive Disorder, Oppositional Defiant Disorder, Mood Disorder not Otherwise Specified, Generalized Anxiety Disorder, a history of suicidal ideation, and frontal lobe dysfunction, beat his mother, Karyn Kay, to death with his bare hands and feet during the postictal phase of an epileptic seizure.¹ The entirety of the beating death was captured on a 911 call made by Karyn, who had called to request medical assistance for her son — the defendant — as, she informed the 911 operator, he appeared to be having an unusually long epileptic seizure. On that call, Karyn's desperate cries for help are drowned out by multiple murderous thuds and animal-like grunting. Minutes later, when emergency responders arrived at the scene of the murder — an apartment that Karyn shared with the defendant — he was wild-eyed, disoriented, and covered in blood.² Karyn lay unresponsive on the floor of the apartment as a pool of blood spread from under her head. Karyn was removed by ambulance and pronounced dead later that same day. The defendant told responding police officers that he did not know what had occurred and, alternatively, that "it" was a mistake. The defendant was taken to Bellevue Hospital where he told police officers that if he had killed his mother, it was his body that had killed her, as he was otherwise unconscious and in the throes of an epileptic seizure.

1 The postictal phase is the altered state of consciousness after an epileptic seizure, see discussion infra .

2 The defendant had scratch marks on his face, arms, and feet, as well as swollen ankles.

Procedural History of the Case

The defendant, by Indictment Number 1669/12, was charged with Murder in the Second Degree. He entered a plea of not guilty, and, through retained counsel, indicated that he was not responsible for his mother's murder as he had beaten her to death during an epileptic seizure. In light of the defendant's contention, the People retained, and the defendant agreed to be examined by, Dr. Sarah Schaffer, a Clinical Neuropsychologist. Following psychological testing of the defendant and several interviews with him in January and February of 2013, Dr. Schaffer concluded that the defendant was not acting "consciously" when, during the postictal phase of an epileptic seizure, he killed his mother.³ On October 6, 2014, on consent of the parties, the defendant entered a plea of not guilty by reason of mental disease or defect, pursuant to Criminal Procedure Law Section 220.15, and was confined to Kirby Forensic Psychiatric Center (hereinafter "Kirby").

3 Dr. Schaffer was also present when a doctor retained by the defendant interviewed him in May and July of 2017.

The Instant Hearing

Pursuant to Criminal Procedure Law Section 330.20(6), an initial hearing was ordered with respect to the defendant's present mental condition. This Court, therefore, is tasked with deciding whether the defendant: (1) has a Dangerous Mental Disorder, rendering him a danger to himself or others and requiring continued confinement in a secure psychiatric facility (commonly referred to as track one); (2) is Mentally Ill, but not a danger to himself or others, instead requiring inpatient psychiatric treatment (commonly referred to as track two); or, (3) does not have a Dangerous Mental Disorder and is not Mentally Ill and, thus, should be discharged from confinement altogether (commonly referred to as track three). The hearing commenced on December 6, 2017 with testimony continuing through January 10, 2018. Several witnesses with expertise in psychiatry, psychology and neurology testified. Additionally, myriad exhibits were introduced into evidence, inter alia , psychiatric, substance abuse and medical records, an autopsy report, incarceration records, crime scene photographs, and the defendant's mother's 911 call. The Court heard oral argument from the parties on May 22, 2018.⁴ On June 21, 2018, on consent of the parties, the People provided the Court with a DVD containing the defendant's medical records from the New York City Department of Correction Health Services for the treatment that he received at Rikers Island from December 1, 2017 to May 22, 2018.⁵ On July 19, 2018, the defendant filed with the Court a Post-Closing Memorandum, as well as an affirmation by an attorney employed at defense counsel's firm.⁶ On August 23, 2018, at the Court's request, the People provided copies of the exhibits, including records from two facilities where the defendant was treated — the University of Minnesota Medical Center (hereinafter "UMMC") and Arbor Place. On September 11, 2018, defense counsel forwarded a letter to the Court regarding the defendant's participation in a substance abuse program at Rikers that he began in April of 2018.⁷ After a thorough review of the foregoing, the Court concludes that the defendant does have a Dangerous Mental Disorder, requiring continued confinement in a secure psychiatric facility.

4 Oral argument was delayed some months due to the unavailability, vacation schedules, and religious observances of both parties, as well as the Court's own scheduling conflicts.

5 At the May 22, 2018 appearance, the defendant sought to move into evidence the results of three drug tests that had been conducted while he was incarcerated at Rikers Island. The People objected to the introduction of those tests as the factual portion of the hearing had been completed. In the alternative, the People suggested obtaining the entirety of the defendant's health records from Rikers Island for the period of December 1, 2017 to May 22, 2018.

6 In that affirmation, the attorney recounts a conversation that he had had with an employee of Rikers Island, describing how the defendant's medication is purportedly administered to him. By letter dated July 20, 2018, the People, asserting that both the Memorandum and affirmation constituted additional evidence, urged the Court to disregard them. By letter dated July 20, 2018, the defendant replied, contending that the Court had explicitly granted permission to the defendant to submit additional evidence. The Court has considered both items over the People's objection.

7 The director of that program concluded, in a one-page letter, that the murder was a "direct result of [the defendant's] escalating substance abuse." Although the director indicated that the defendant is "very motivated" to continue treatment, he offered no further edification.

Findings of Fact

The Court generally recognizes the qualifications of the expert witnesses and largely credits the testimony of the experts. There is, therefore, no reason to recount the qualifications of those witnesses here.⁸ The Court makes the following findings of fact.

8 Those qualifications can be found both in the transcript of the hearing and in the exhibits entered into evidence at the hearing and are incorporated by reference herein.

The People's Case - Relevant Portions of the Reports and the Testimony at the Hearing ⁹

9 Many of the doctors who examined the defendant prepared a report or reports that were entered into evidence at the C.P.L. § 330.20 hearing. The parenthetical notations refer either to a specific doctor's report, or to that doctor's testimony at the hearing.

Dr. James Hicks

Dr. James Hicks, Associate Clinical Director of the Kirby Forensic Psychiatric Center, conducted an examination of the defendant pursuant to C.P.L. § 330.20. That examination, conducted jointly with Dr. Brian Belfi, took place on November 16, 2015, see infra . Dr. Hicks wrote an extensive report following his examination of the defendant. That report contains a comprehensive summary of the defendant's background.¹⁰

10 The information contained in Dr. Hicks's report was repeated and relied on by other experts who prepared their own reports.

The defendant was born to Karyn Kay — an English teacher at the time of the murder — and Edward Wachtel — a professor at Fordham University at the time of the murder. (Hicks, December 28, 2015: 2). The defendant's parents, who had never married, separated when the defendant was an infant. Although he lived primarily with his mother, the defendant's father was reportedly an active participant in his life.

As a middle school student, at around twelve years old, the defendant "had already smoked cigarettes and pot and gotten buzzed with beer and told [his psychologist] Dr. [Robert] Bartlett he was eager to continue experimenting with drugs, alcohol, and sex." (Hicks, December 28, 2015: 3). Further, the defendant exhibited antisocial behaviors, including "rolling a smoke bomb into an art gallery, killing a bird with a BB gun, and setting one of his mother's possessions ... on fire and throwing it out the window." (Hicks, December 28, 2015: 3). The defendant described "plotting the perfect crime" — the murder of an elderly woman. He also described wanting to sell "a hallucinatory herb to little kids." (Hicks, December 28, 2015: 3). As a result of these behaviors, the defendant met with Dr. Bartlett weekly up until the age of seventeen. Dr. Bartlett found the defendant to possess "narcissistic traits" and repeatedly remarked upon the defendant's "rage ... anger, entitlement, and opposition to authority." He observed the defendant to have "an intense and consuming anger towards both of his parents, particularly when they told him what to do or otherwise set limits." (Hicks, December 28, 2015: 3).

By the end of middle school, the defendant's drug use "escalated," so that by the time he was a freshman in high school, he was "smoking pot at least a couple of times a week, using acid (LSD), and injecting Special K." The defendant also used cocaine so frequently that "he dreamed of consuming it hungrily." (Hicks, December 28, 2015: 4). After being hospitalized for an infection, the defendant began to abuse Vicodin, Percocet, and OxyContin. Additionally, he used sedatives including Valium, Xanax, Ativan, and Ambien, stimulants, PCP, hallucinogenic mushrooms, cough syrup, ecstasy, amyl nitrates, and bath salts. (Hicks, December 28, 2015: 4-5). The defendant's use of alcohol also escalated "to the point where he was drinking on weekdays and binge drinking to the point of blacking out on weekends." (Hicks, December 28, 2015: 5).

In June of 2008, the defendant, fifteen years old at the time, experienced his first seizure after using cocaine. (Hicks, December 28, 2015: 5). The defendant was treated and released from the emergency room without being diagnosed with epilepsy, as it appears that the seizure was blamed on his cocaine use. Around this time, the defendant began seeing a neurologist who prescribed stimulants to treat Attention Deficit Hyperactivity Disorder (hereinafter "ADHD"). Also, around this time, the defendant "began expressing feelings of depression and suicidal ideation," and was prescribed anti-depressants. (Hicks, December 28, 2015: 5). Additionally, the defendant detailed several physical altercations with his mother, telling Dr. Bartlett that each time he exercised "a lot of self-control by not hitting her harder." (Hicks, December 28, 2015: 4). The following year, the defendant reported "frustration at having to hold himself back from hitting his mother" and reported having "a shoving match with his father." The defendant also reported "feeling explosively angry with his girlfriend who ... made him feel small and emasculated" and "a desire to hurt her physically because of anger." (Hicks, December 28, 2015: 4). Around the same time, he expressed "a desire to fight peers as both a masculine ideal and a hobby," and spoke of "mugging" and "humiliating" his peers, including at a camp that he attended. (Hicks, December 28, 2015: 4). Dr. Bartlett became concerned about the defendant's "disturbingly enthusiastic embrace of the sadistic practices at his camp," and "interest in exploring domination/rape fantasies."

In 2009, the defendant began out-patient substance abuse treatment at Phoenix House. While the defendant admitted to Dr. Bartlett that he "needed" treatment, he later denied needing treatment, and instead indicated that it was his parents who believed that he needed treatment. (Hicks, December 28, 2015: 5). The defendant, self-reporting abstinence for three months during treatment, nonetheless, continued drinking alcohol and smoking marijuana, claiming "that he could probably use everything [he] used to and not be affected by it." Additionally, the defendant told Dr. Bartlett that he smoked marijuana "in the morning[s] to manage anxiety." (Hicks, December 28, 2015: 5).

In 2010, the defendant was prescribed additional antidepressants, a sedative, and amphetamine stimulants. The defendant reported being depressed, "thinking about death," and "having fantasies about shooting himself." (Hicks, December 28, 2015: 5). In February of 2010, the defendant had another seizure. (Hicks, December 28, 2015: 5-6). He "was in bed having intercourse" with his girlfriend when he "shoved her aside," "began banging on the bed," "screamed, fell to the floor, and shook convulsively for [several] minutes." (Hicks, December 28, 2015: 5). The defendant's "eyes rolled up, he drooled, and bit his tongue." After five to ten minutes, the defendant "recovered from a confused state." (Hicks, December 28, 2015: 6).

Some two months later, the defendant had another seizure while in the shower of his father's home, breaking his nose. He lost consciousness and convulsed for about three minutes, and some thirty minutes later while in the emergency room, was still disoriented. (Hicks, December 28, 2015: 6). On April 16, 2010, the defendant was seen by a neurologist at New York University Medical Center (hereinafter "NYU"), where he underwent an "electroencephalogram (EEG), which was abnormal." (Hicks, December 28, 2015: 6). As a result, he was prescribed Keppra, an "anticonvulsant levetiracetam." (Hicks, December 28, 2015: 6).

In April of 2010, the defendant left Phoenix House — it is unclear whether he completed the program. The defendant indicated that he "didn't really feel there was a reason to stay clean," and began smoking and injecting heroin. (Hicks, December 28, 2015: 6). Over the next year, the defendant reported feeling alienated and caring "about nothing." (Hicks, December 28, 2015: 6). He also reported suicidal thoughts and "began burning his lower abdomen with lighters and cigarettes." In June of 2010, he "consumed alcohol with about a dozen clonazepam pills and passed out on the subway." In July of 2010, he tried to commit suicide by "cutting his wrists with a steak knife." (Hicks, December 28, 2015: 6). Also, that summer, he consumed "a half liter [of] vodka, [a] bottle [of] whiskey, tequila shots and some beers" and "threatened his mother ... I'm going to kill you ... I'm going to choke you."

Dr. Bartlett began to arrange for the defendant to receive inpatient treatment and advised his parents to call 911 if he posed a threat to himself or others. Shortly thereafter, when the defendant did express suicidal ideations, his parents called 911 and he was taken to the emergency room. When the defendant was released the next day without treatment, his parents "expressed anger" towards the psychologist and the defendant never returned to see him. (Hicks, December 28, 2015: 7).

The defendant continued to experience seizures, despite increased doses of Keppra. He was diagnosed with "refractory generalized epilepsy." (Hicks, December 28, 2015: 6). In February of 2011, the defendant was admitted to NYU for additional EEG studies and a neuropsychological evaluation. The defendant provided conflicting information to NYU clinicians, first indicating that he was "drinking and using cocaine ... once or twice a month," but later indicating that he drank alcohol once a week but did not use drugs at all. (Hicks, December 28, 2015: 7). The neuropsychological evaluation demonstrated, inter alia , "impulsivity and perseveration," findings "not uncommon in individuals with ADHD."

As a college freshman, the defendant's mother took him to a different psychologist for therapy related to "school difficulties, anxiety, poor sleep habits, and family conflict." The defendant and his mother described "intense verbal fighting and ... recent physical altercations." (Hicks, December 28, 2015: 7). The defendant "largely blamed his mother" for their altercations. He told the psychologist that he had successfully completed drug treatment and only drank alcohol "intermittently." The psychologist diagnosed the defendant with "Adjustment Disorder with Conduct Issues" and "Generalized Anxiety Disorder," and described the defendant's relationship with his mother as "conflicted but apparently close." (Hicks, December 28, 2015: 7). Nevertheless, the defendant continued to "blame his mother for their conflict, saying she was on top of him too much." (Hicks, December 28, 2015: 7). The defendant was repeatedly late for appointments and missed several appointments, and soon thereafter stopped attending therapy altogether.

Over the summer and fall of 2011, the defendant "had several generalized seizures" and "staring spells." An EEG in November of 2011 demonstrated abnormalities and his Keppra dose was increased to 6,000 mg daily, "twice the recommended daily dose." (Hicks, December 28, 2015: 7). In December of 2011, the defendant disclosed an unwitnessed seizure during which he bit his tongue. Both he and his mother reported that he was "more irritable," a known side effect of Keppra. (Hicks, December 28, 2015: 7-8). As a result, the defendant was started on an additional medication — Lamictal.

In the days leading up to the murder, the defendant's polyamorous substance abuse continued. He "had been drinking a couple of times per week, had been consuming prescription amphetamines (Adderall) several times per week, and had begun using whippets (nitrous oxide in spray canisters) several times per week." (Hicks, December 28, 2015: 8). He also continued to use both cocaine and marijuana. The defendant "was staying up late as usual," and "would sometimes take an extra [unprescribed] dose of Keppra." (Hicks, December 28, 2015: 8). The night before the murder, the defendant stayed up late studying for an exam "with the assistance of many amphetamine pills." He went to bed at 6:30 a.m. and his mother woke him up at 8:30 a.m. The defendant had coffee and brushed his teeth, and the "last thing he recalled was going to put on his pants and pack his laptop for class." (Hicks, December 28, 2015: 8).

That morning, April 10, 2012, at about 9:30 a.m., the defendant's mother, Karyn Kay, called 911 to request medical assistance for him, as he was experiencing an epileptic seizure that had gone on for some four minutes, and she was concerned that he would hit his head. Within moments, however, the defendant got up from the floor where he had been seizing and began pacing back and forth. Karyn then screamed, telling the 911 operator, "[h]e's coming after me." (Hicks, December 28, 2015: 8). Karyn continued to scream and wail while the defendant beat her to death with his bare hands and feet.

Following his arrest for the murder of his mother, the defendant was remanded to the custody of the New York City Department of Correction (hereinafter "DOC"). At Rikers Island, DOC conducted a medical evaluation of the defendant during which he stated, "[o]f course I feel depressed." Although the defendant demonstrated neither psychosis nor any indicia of suicidality, he was immediately transferred to Bellevue Hospital for a psychiatric evaluation. The defendant remained in the Bellevue Hospital jail ward for approximately two months. During that time, the defendant underwent psychological testing and "was observed to have inappropriate affect, impaired judgment, and poor appreciation of the seriousness of his situation." (Hicks, December 28, 2015: 10). He was also described as "intrusive, impulsive, argumentative, and disrespectful to both patients and staff," and often "denied or minimized" his negative behavior towards others. (Hicks, December 28, 2015: 9). On at least two occasions he was observed to have scratches or other wounds on his wrists, suggesting suicidal intentions. (Hicks, December 28, 2015: 10). The defendant was "overheard making threatening comments towards other patients," engaged in verbal altercations, and had to be separated from a physical altercation involving another patient. He told a staff member that when "the reality of his mother's death had sunk in ... he wanted to die so that he would not have to feel [the] pain." (Hicks, December 28, 2015: 10). The defendant, who had "a proclivity towards externalizing and acting out behaviors" and "thoughts about death," was diagnosed with, inter alia , Adjustment Disorder, Anxiety, Depression, and Attention Deficit Hyperactivity Disorder. Although the defendant's treatment team expressed concern over his "interpersonal behaviors on the ward," it was noted that "the pervasiveness of his personality style [was] unknown." Additionally, he was thought to have "minimized his history of drug use," but "probably" met the criteria for a substance abuse disorder. (Hicks, December 28, 2015: 10). Finally, the defendant, who experienced at least two seizures during his stay at Bellevue, was evaluated by a neurologist.

The defendant was returned to Rikers Island in June of 2012, where he remained for approximately one year. During that time, the defendant "was noted to be medication-seeking," including requesting assorted controlled substances such as Xanax and Ativan. (Hicks, December 28, 2015: 10-11). Additionally, the defendant told a mental health worker that his mother "died since I have been here, and this is putting a strain on my relationship with my girlfriend." (Hicks, December 28, 2015: 11). As a result, an "unspecified depressive disorder" and "Antisocial Personality Disorder" were added to his diagnoses. (Hicks, December 28, 2015: 11). The defendant, however, declined substance abuse treatment, indicating, "I like getting high" and "I don't want to be clean from drugs." (Hicks, December 28, 2015: 11). He was diagnosed with Polysubstance Dependence, but later did express an interest in attending a treatment program "to prevent him from dying." (Hicks, December 28, 2015: 11).

Also, during the year while he was incarcerated at Rikers Island, the defendant self-reported several "convulsive seizures," although doctors believed that the some of those seizures did not occur. (Hicks, December 28, 2015: 11). For example, when the defendant's father complained to jail personnel about the defendant "receiving the wrong medications," the defendant "claimed to have had a seizure that was unwitnessed." (Hicks, December 28, 2015: 11). As the defendant was non-compliant with his medication regimen, he was placed on "directly observed therapy" to ensure compliance. (Hicks, December 28, 2015: 11). Soon thereafter, the defendant "was seen emergently after [another] seizure." (Hicks, December 28, 2015: 11). The defendant subsequently "faked" an additional seizure, so that he would be taken to the medical clinic. Several days later, he was observed "still convulsing and confused" after an additional seemingly real seizure. (Hicks, December 28, 2015: 11).

Additionally, while incarcerated at Rikers Island, the defendant reported suicidal ideations, and fashioned "a soap ball that he could swallow" to kill himself. (Hicks, December 28, 2015: 11). In January of 2013, the defendant, who had stopped taking the antidepressant prescribed to him without medical oversight, reported "the re-emergence of impulsivity and fluctuating emotions." The defendant explained that he would "just get so angry" and "flip[ ] out." (Hicks, December 28, 2015: 11).

In May of 2013, the defendant was released from jail, on consent of the parties, and with the Court's permission, to attend intensive inpatient psychiatric treatment at UMMC. The defendant remained there until July of 2013. During that time, the defendant was treated by a psychiatrist, neurologist, and an addiction treatment provider. Upon admission, he was described as "anxious and ruminative, but not particularly depressed or suicidal." (Hicks, December 28, 2015: 12). He reported that "he could abstain from marijuana and continue to drink wine socially" but was "not sure if he could stop using cocaine." (Hicks, December 28, 2015: 13). The defendant also reported that he was taking Keppra as prescribed but still experiencing seizures, including "absence-type" seizures, several times a month. (Hicks, December 28, 2015: 13). He was diagnosed with Adjustment Disorder, ADHD, Polysubstance Dependence, and Juvenile Absence Epilepsy. As the defendant's treatment progressed, he was described as demonstrating "low frustration tolerance and frequent anger." (Hicks, December 28, 2015: 12). The defendant's treatment at UMMC included evaluation for "neurosurgery for refractory epilepsy." The defendant told members of his treatment team that "he would commit suicide if [surgery] was not possible," "if he had to be returned to jail, he would hang up" and that "it would be easier if he would go to sleep and not wake up." He reported having "bad dreams involving his mother and corrections officers." Additionally, the defendant described a dream about "violently assaulting others, with metal pipes flying, which he characterized as scary and sad and cool all at the same time." (Hicks, December 28, 2015: 12-13). The defendant was also administered personality tests and was "revealed ... to be dramatic, oppositional, and emotionally dysregulated, and to harbor anger and resentment towards others, to have antisocial tendencies, to act out, and to struggle in maintaining sobriety." (Hicks, December 28, 2015: 13). He was further described as "depressed and anxious ... self-critical and self-defeating." A clinical psychologist noted that the defendant did not "appear to show a great deal of remorse or even negative emotion about his mother's death," instead focusing on "trying to move on with his life." (Hicks, December 28, 2015: 13). The defendant told that psychologist that he had talked about his mother's death "1,000 times" so that he felt "numb" to it. He added that he was "at a point where [his] entire life has changed." As a result, the psychologist "recommended ongoing observation to elucidate Cluster B personality features (i.e., antisocial, narcissistic, and borderline)." An addiction specialist found the defendant "to have high resistance, lack of insight, and inability to stop using" illicit substances, and recommended a residential drug treatment program. In response, the defendant stated that substance abuse was "not the real problem" and not "what led to [his] hospitalization." (Hicks, December 28, 2015: 13). At one point during his stay at UMMC, the defendant became upset about unspecified information "getting back to court." As a result, "he became confrontational with staff," appeared "ready to spring or pounce aggressively" and was observed "whimpering, crying and pleading in between looking angry." (Hicks, December 28, 2015: 13). With respect to the defendant's epilepsy, a neurologist "raised the possibility of a toxic encephalopathy (i.e., an adverse reaction[ ] to prescribed drugs affecting brain function) resulting from the several ... brain medications being prescribed, and in particular the Levetiracetam [Keppra ]." As a result, the defendant was taken off the Keppra and prescribed Depakote in its place. The defendant was "consistently compliant with therapy and medication," and at the end of his two month stay at UMMC, was observed to be "seizure free" and "less irritable, angry, and argumentative." (Hicks, December 28, 2015: 13-14).

University of Minnesota Medical Center Records¹¹

11 While the Court has summarized a portion of the records here, the records in their entirety are in evidence and are incorporated by reference herein.

According to the UMMC records, the defendant and his family indicated that he was seeking treatment to "reassess his current psychiatric state" including "serious adjustment issues" and "suicidal thoughts" and for "lifestyle changes that are warranted for seizure prevention (abstinence from illicit substances and regular sleep patterns)." The defendant additionally reported that he was specifically seeking treatment at UMMC, as "it was the only hospital that would accept" him. With respect to his history of seizures, the defendant indicated "that the cause for his ongoing seizures is lack of sleep and not associated with drug or alcohol abuse." Shortly after being admitted, the defendant underwent neuropsychological testing and exhibited "subtle" "cognitive inefficiencies." A treating psychiatrist noted that the defendant was not given a roommate during his stay due to "concern that he may harm another patient in his sleep." A psychiatrist also noted that on one occasion, the defendant had awoken with "stiff muscles" and may have "urinated" in his bed overnight, and "wondered whether he had a seizure in the middle of the night."

During his three month stay at UMMC, the defendant expressed suicidal ideations several times. He told his treatment team that he believed that "it would just be easier to just not wake up in the mornings," and that "his sense of personal safety, and preventing suicide [was] improved" in a hospital setting. The defendant also reported that on a scale of one to ten with ten being "severely depressed" he was "a 9 because if I was a 10 I would have offed myself." When asked by a staff member if he was "safe," the defendant responded, "like I said if I was a 10 I would be dead."

Also, during his stay, the defendant told his treatment team that "he is trying to say the right things, so that he does not get misquoted or misunderstood." The defendant was later overheard laughing and telling someone that he was "still a menace to society" and would be "partying ... again," once his epilepsy was treated, and told a clinician that he wanted to be transferred to a residential program so that he could "enjoy life and have a drink." The defendant also told a clinician, "I didn't know the [doctors] here were psychiatrists ... I have to go back to jail because I didn't tell them the truth. I've been fucked over." When discussing his eventual release from UMMC, the defendant indicated that he did not need additional treatment as he was only at UMMC "for legal reasons, that's all."

In a discharge note dated July 15, 2013, the defendant's doctors concluded that while he "does not fit a classic description of violent automatism triggered by epilepsy, his preexisting personality traits and psychiatric diagnoses indicate that he likely had minor aggressive and possibly antisocial behavioral tendencies that had never manifested in a notable way" and that during the murder, "it is quite possible that the [defendant's] seizure triggered a temporary suppression of higher cognitive functions that lead to an aggressive, dysregulated behavioral response." Nevertheless, provided that the defendant strictly complies with his medication regimen and scrupulously avoids seizure inducing triggers, including illicit substances, he will "likely" "never display this kind of violent behavior" again.

The defendant was returned to Rikers Island from UMMC in July of 2013. Upon his return, he expressed annoyance at being referred for psychiatric treatment, "stating that he just wanted his medications, not therapy." (Hicks, December 28, 2015: 14). The defendant later told a social worker that he did not know why he was sent to UMMC, "it was just a way of getting out of jail" that his "lawyer set up." The defendant explained that "he was hoping to get a drug program if offered one by the court" that would "keep him from continuing to get in trouble." The defendant's medication regimen was thought to be working, and he was described as "feeling better" and "less depressed and anxious." At some point, the defendant learned that his medical records included a diagnosis of Antisocial Personality Disorder and "expressed concern that he had been misdiagnosed and that it could affect his outcome in court." As a result, the defendant's treatment team at Rikers "changed" the diagnosis "to an unspecified personality disorder." (Hicks, December 28, 2015: 14).

After UMMC, while incarcerated at Rikers in the summer of 2014, the defendant "several times" used "opioids (Suboxone and Tylenol with codeine ), snorted heroin, and consumed alcoholic hooch." (Hicks, December 28, 2015: 14). The defendant subsequently admitted that his drug use and alcohol intake at Rikers Island had been more frequent — he used opioids "twice a week and around fifty times total for Suboxone, and that he also used heroin ... around thirty times." (Hicks, December 28, 2015: 14).

In October of 2014, the defendant was released to Arbor Place, a residential substance abuse and mental health treatment facility in Menomonie, Wisconsin. While at Arbor Place, the defendant "struggled throughout his treatment" and was "noted to be slightly entitled and subject to angry outbursts." (Hicks, December 28, 2015: 15). The defendant "consistently stayed up late and took naps throughout the day, leading him to miss or be late to therapy sessions." The defendant "had to be reminded or would take his medication late" and his medication schedule "often had to be modified day-to-day to accommodate his sleep schedule." (Hicks, December 28, 2015: 15). His peers "were alienated by the perception that [he] was getting special treatment and could get away with missing [group therapy]." The defendant was described as repeatedly "pushing limits and violating rules, particularly relating to him having no physical contact with female peers." The defendant was nearly discharged from the program "because he had broken the rules." (Hicks, December 28, 2015: 15). In August of 2015, the defendant "was feeling depressed and suicidal," but did not immediately report this to staff as he was concerned that the information would negatively impact a future court's determination with respect to his hoped-for release from confinement. (Hicks, December 28, 2015: 15). Also, in August of 2015, the defendant's "privileges were downgraded because of his poor attention to attendance and rules." The next month, the defendant "admitted to some cravings and stated that they happen when he feels he has no control over his life" and he "expressed gratitude that he will continue to have long-term legal oversight because he knows how easy it is to relapse." (Hicks, December 28, 2015: 15). In October of 2015, the defendant's counselor became concerned as the defendant stated, "there is nothing better than getting off the bus [in NYC] at 5 am [sic], coming home from a good party." (Hicks, December 28, 2015: 16). The counselor described the defendant's statement as "euphoric recall about his former drug-and-alcohol-fueled party life."

Arbor Place Records¹²

12 While the Court has summarized a portion of the records here, the records in their entirety are in evidence and are incorporated by reference herein.

According to the Arbor Place treatment records, during an intake interview, the defendant was "inconsistent" in reporting his history of drug and alcohol use. The defendant initially denied using either drugs or alcohol while in jail but "later apologized for his dishonesty" and admitted that he had used drugs and alcohol while incarcerated. He "appeared to greatly minimize and deny issues related to his use of substances." The defendant did not "possess the necessary coping skills to live a life free from alcohol and drug use." Unless the defendant learned those skills, "he may always be at risk for abusing substances as a way of coping, which could lead to a new or worsened physical health state and mental health state and may lead to further legal consequences."

Shortly after admission, the defendant refused to take prescribed medication, indicating that "he did not want to take any more medications." Throughout his stay, the defendant frequently failed to comply with the medication schedule created by treatment providers. As a result, the defendant's medication schedule was regularly modified. Additionally, the defendant needed to be reminded to take his medications on a "consistent" basis. On at least one occasion, the defendant abruptly left a therapy session when he belatedly realized that he had neglected to take his morning medications. On another occasion, the defendant belatedly asked staff members whether he had taken his morning medications — he had not. Nevertheless, the defendant told a counselor that "he would be able to adhere to a schedule if he lived on his own."

The defendant was frequently observed to stay awake into the early morning hours, with a staff member noting that the defendant did not go to sleep before 1:30 or 2:00 a.m. "almost every night." As a result, the defendant often did not wake up on time, was "tired all day," and regularly fell asleep during therapy sessions. A staff member indicated that the defendant "continues to ignore staff advice" about getting sufficient sleep and had to be roused from his bed by staff members nearly every day. The defendant was also frequently "argumentative" with staff over his tardiness. Additionally, the defendant consistently missed therapy sessions or did not show up at all. When told that he was expected to wake up at a reasonable time to be ready and on time for morning group therapy sessions, he "made a joke out of it and said it wasn't going to happen." The defendant was later provided with a new alarm clock, but continued to miss therapy sessions. As a result, staff members discussed with the defendant, "[t]he challenge of keeping him engaged and interested in treatment." Nevertheless, on at least one occasion, the defendant "beg[ged]" a staff member not to record his failure to attend therapy sessions so that he would "not get into trouble."

After some time at Arbor Place, the defendant was approved to attend "outside NA and AA meetings."¹³

13 The Court was unaware that while at Arbor Place, the defendant was permitted to attend AA and NA meetings in the community. The Court was also unaware that the defendant was permitted to go to a local animal shelter, coffee house, and shopping area, and was allowed to participate in other outings.

The defendant, however, subsequently refused to attend an in-house noon-time AA meeting, telling staff members that "he needed to sleep." Additionally, when told on a different occasion that he was late for another AA meeting, the defendant replied that "it was just AA."

Throughout his stay, the defendant consistently failed to abide by the rules imposed by his treatment team. On one occasion, the defendant made a comment to staff members implying that rules were not "important to his recovery." The defendant frequently ignored staff directives and became hostile towards staff members when they attempted to enforce the rules. The defendant, therefore, lost privileges on more than one occasion. Additionally, the defendant frequently needed to be instructed on the importance of personal hygiene and reminded to take a shower. As a result of her concerns about the defendant's continued difficulty with following the rules, the defendant's primary counselor spoke with a doctor that the defendant had retained to examine him while he was a patient at UMMC. That doctor, Dr. Gulrajani, explained to the defendant's counselor that the defendant's "executive brain function" had been "damaged, explaining his struggles with time management, planning, and impulsivity."

The defendant was "disrespectful to fellow clients" and "argumentative" with staff on a "consistent" basis. Additionally, the defendant repeatedly raised his voice and used profanity when addressing staff members. For example, when discussing other patients' behaviors, the defendant used "vulgar" language and called a staff member "judgmental," and repeatedly "deni[ed] any responsibility for being at a treatment center." The defendant was further observed to be "agitated" and "demanding" on more than one occasion. On another occasion, the defendant was "disrespectful" towards staff members and when confronted about his behavior he replied that he "could have a bad day if he needed to." A staff member later observed that the defendant "has observable patterns of asking [multiple staff members] individually until he gets the result he is asking for." When the defendant was questioned about this pattern, he became "confrontational." The defendant discussed this behavior with his primary counselor who described how he "presents differently" to her than he does to the rest of the staff and that in sessions with her, he regularly presented "his idealized self." Several days later, the defendant discussed his lateness and rule breaking in a group therapy session and "began to minimize his behaviors, justified his behaviors, and then began to target the staff."

Additionally, the defendant was repeatedly observed to be "crossing boundaries" with female patients by having physical contact, including kissing at least one patient. As a result, the defendant was required to sign a no-contact order. Nevertheless, the defendant continued to have physical contact with female patients. On one occasion, after making an "uncomfortable comment" to a female patient, the defendant told staff members that he "was joking." On another occasion, the defendant was observed speaking to a female patient whom he then sat next to during a group therapy session. Rather than participating in the session, the defendant continued to speak to the female patient who was "non-responsive." As a result, the defendant was asked to leave the group and became "argumentative" when told to do so. On another occasion, the defendant was observed sitting with a female patient and had to be instructed to maintain physical "space" between them. A staff member later noted that the defendant appeared to "monopolize" a female patient's time and when unable to hold her attention, became "visibly agitated." On another occasion, a female patient told staff members that the defendant was "bothering her." Several minutes later, after staff members directed the defendant to cease his behavior, the defendant was observed speaking to that patient in an "aggressive manner." The defendant then expressed frustration with peers who did not want to be friends with him. The counselor noted that the defendant did "not appear to see or understand how his behaviors negatively impact others."

Several times during his stay, the staff was instructed to conduct safety checks of the defendant every thirty minutes, due to suicidal ideations. On one occasion, the defendant admitted to a therapist that he felt "slightly depressed and suicidal" and had failed to report this immediately to staff members as he and his father were concerned that the court "would deem" the defendant "crazy." The therapist told the defendant that "given his mother's death, his period of incarceration ... and the upcoming dispensation of his case," it made sense that he might be feeling "a little depressed." Nevertheless, several days later the defendant told the same therapist that he was not "feeling suicidal and that he really hasn't for a while."

While at Arbor Place, the defendant frequently expressed concern with respect to how his behavior would be construed at a future dangerousness hearing. During a therapy session, therefore, the defendant "asked that some of the things that he's remembering not be put in the chart" as he was concerned they "could be used as ammunition by the DA." The therapist assured him that she was "on his side." The defendant later "expressed resentment about all the hoops he's having to jump through" related to the pending case. The therapist encouraged the defendant "to think about it as a natural consequence of some of the choices he made, that while he isn't being held responsible for his mother's death, that there's a chance that if he hadn't been doing drugs, it wouldn't have happened."

The defendant was discharged from Arbor Place on November 4, 2015.¹⁴

14 Jill Gamez, the executive director of Arbor Place, was called as a witness at the hearing by the defendant. She testified that the defendant was a patient there from October 2014 to November of 2015. The defendant, a self-paying patient, was randomly tested for drugs and alcohol approximately fifty times. (Hearing, December 20, 2017, Gamez: 955). The only positive test was for amphetamine, but Gamez believed that to be a result of the defendant having been prescribed an amphetamine medication for his ADHD. (Hearing, December 20, 2017, Gamez: 958). Gamez explained that the defendant underwent a hair follicle test as another patient accused him of using drugs and submitting someone else's urine to pass drug tests. (Hearing, December 20, 2017: 960). The last drug test of the defendant, however, was on June 2, 2015, approximately five months before he was discharged. According to Gamez, the defendant frequently slept late — missing nearly every morning dose of Depakote and routinely missing morning therapy sessions. Gamez, however, opined that the defendant had shown improvement in that regard. (Hearing, December 20, 2017, Gamez: 976). As a result of inappropriate contact with female patients, a no contact order was put into place, an order that the defendant failed to follow. (Hearing, December 20, 2017, Gamez: 977-78). Jennifer Coyne, the defendant's primary clinician, kept regular notes about the defendant's treatment and progress. When the defendant's father expressed concern about how much of that information would be communicated to the court, Coyne explained, "I do my best to be circumspect when writing notes." (Hearing, December 20, 2017, Gamez: 1007). Only after Coyne's reassurances did the defendant's father disclose that the defendant had reported to him that he was having suicidal ideations. (Hearing, December 20, 2017, Gamez: 1010). Gamez acknowledged that it would have been more "appropriate" for Coyne "to honestly write in her notes what happened." (Hearing, December 20, 2017, Gamez: 1010).

Following his discharge from Arbor Place, the defendant was returned to Kirby. Dr. Hicks interviewed the defendant jointly with Dr. Brian Belfi at Kirby on November 16, 2015. Dr. Hicks noted that the defendant was "keen to present himself positively" and "convey[ed] an attitude of already knowing everything he needs to know rather than being self-reflective." (Hicks, December 28, 2015: 17). The defendant appeared "mildly anxious" — he denied "any recent suicidal or angry thoughts." (Hicks, December 28, 2015: 17). He "credibly describe[d] a conflicted relationship with his mother that nevertheless was full of ... love." (Hicks, December 28, 2015: 17). He described the murder of his mother "without breaking down" and reflected that he never wanted "that to happen again." He explained, therefore, that he was "committed" to his sobriety, and while he "can't control the seizures," he "can control the surrounding things." (Hicks, December 28, 2015: 17). The defendant volunteered that "he is a polyamorous drug addict," who consumes "anything he can get his hands on." He added that he was "blessed" to attend treatment at Arbor Place and hoped to return to treatment there as "he would be exposed to too many triggers in the city here." (Hicks, December 28, 2015: 17). Dr. Hicks initially concluded that the defendant did not have a Dangerous Mental Disorder and recommended that the defendant be released to a civil psychiatric facility.¹⁵

15 Dr. Hicks later revised his opinion, concluding that the defendant does have a Dangerous Mental Disorder, requiring continued confinement in a secure psychiatric facility, see infra .

While at Kirby in late 2015 and into the early part of 2016, the defendant participated in groups, but both patients and staff noted he "monopolize[d] the patient telephone and ... argue[d] when staff attempt[ed] to enforce the rules regarding the telephone." (Hicks, December 28, 2015: 16). When discussing the factors that lead to the murder of his mother and that "might make him mentally ill and dangerous," the defendant told his treatment team that the murder was just "a freak accident and discussed [the murder] in a manner seemingly lacking in remorse." (Hicks, December 28, 2015: 16). The defendant further said, "[o]f course I feel bad, I have no mother." (Hicks, December 28, 2015: 16). The defendant was noted to be "superficial in his attitude, limited in insight, and judgment and engaged in impression management." On at least one occasion in December of 2015, the defendant "was overheard referring to his psychologist [at Kirby] as a fucking bitch." Following his outburst, the defendant then "expressed concern" about how the incident would be viewed by a court. (Hicks, December 28, 2015: 16).

On November 9, 2016, while confined at Kirby, the defendant became ill after a visit with a female friend. He was observed to be "shaking, sweating, restless, flushed, and drowsy, and his vital signs were unstable." Despite his "protestations," he was taken to the emergency room. (Hicks, December 19, 2016: 1). A toxicology test of the defendant's urine was positive for opiates. The defendant was subsequently returned to Kirby, where he admitted that his friend had smuggled heroin into Kirby that he had then used. He expressed suicidal ideation and, therefore, was observed continuously for several days. At first, the defendant maintained that that was the only day that he had used heroin at Kirby. When, however, pressed by his treatment team about prior occasions that he appeared to have been similarly ill, the defendant admitted that he had used smuggled heroin on several other occasions. (Hicks, December 19, 2016: 1).

After learning that the defendant had repeatedly used opioids that had been smuggled into Kirby, Dr. Hicks revised his earlier opinion, concluding that the defendant does have a Dangerous Mental Disorder, requiring continued confinement. Dr. Hicks noted that the defendant "had been devoting himself to deceiving staff rather than enlisting their aid in his treatment." Dr. Hicks added that the defendant's "sobriety over a year at Arbor Place" was "now in question, given his recent success at smuggling drugs into this much higher security setting on multiple occasions, while pretending to be devoted to sobriety."¹⁶ (Hicks, December 19, 2016: 1). Dr. Hicks noted that the defendant, who "continued to try to deceive staff even when he was visibly ill and in need of treatment, and again after he had tested positive," was "not yet committed to recovery." Dr. Hicks concluded that "[g]iven his lack of commitment to sobriety and his determination to pursue drugs in spite of severe legal consequences," the defendant poses a danger to himself and to others. Thus, he amended his earlier determination and concluded that the defendant has a Dangerous Mental Disorder requiring continued confinement in a secure psychiatric facility.

16 The defendant was not drug tested at all during the last five months of his stay at Arbor Place and was allowed out into the community during that period, see records and discussion infra .

As nearly two years had passed since his initial interview of the defendant, Dr. Hicks again interviewed the defendant jointly with Dr. Belfi on October 11, 2017.¹⁷ Dr. Hicks noted that the defendant "tended to speak in a slick and intellectualized manner, giving abstract self-help explanations that seemed disconnected from what he has actually done and experienced." (Hicks, October 16, 2017: 1). When pressed, the defendant discussed "a psychiatrist in Minnesota, whose attitude he preferred to staff at Kirby" who he claimed, "let me do me and be me in that room." The defendant admitted that the severity of his addiction to illicit substances is a "10," on a scale from 1 to 10, adding "I'm addicted ... I tried to kill myself ... [i]t will always be a 10." When asked what type of monitoring he needs for his addiction, the defendant replied, "[e]very day ... [i]t puts a good kind of fear." The defendant acknowledged that he was "not ready" to "live on [his] own." Dr. Hicks explained that the defendant is "at risk not only of acute overdose, but also chronic or intermittent intoxication with multiple substances, affecting the quality of his sleep, his mood (and resultant suicidality), his compliance with treatment, and the likelihood of a breakthrough seizure," that could result in postictal violence. Accordingly, Dr. Hicks concluded that the defendant has a Dangerous Mental Disorder, requiring continued confinement in a secure psychiatric facility.

17 Dr. Hicks prepared a third report memorializing this interview of the defendant.

After Drs. Hicks and Belfi re-interviewed the defendant, he was discharged from Kirby on December 1, 2017 and returned to Rikers Island to await the conclusion of the instant hearing.

Kirby Forensic Psychiatric Center Records¹⁸

18 While the Court has summarized a portion of the records here, the records in their entirety are in evidence and are incorporated by reference herein.

According to the Kirby Forensic Psychiatric Center records, the defendant "consistently focused on legal remedies to get transferred from Kirby, rather than contributory risk factors that led to the murder of his mother, e.g., anger, personality issues, long-term conflict with others, substance abuse, etc." The defendant's "[j]udgment and insight" was "limited." "His understanding of his risk factors is significantly limited, and he is still very focused on his legal issues such as being transferred to a civil setting or another ward, as he believes he is unfairly treated ... by staff, arising from limits placed on his behaviors" resulting from "verbal altercations with female staff in particular." The defendant's "affect is intense and he becomes irritable and angry." He "continues to exhibit limitations to his insight into psychiatric symptoms and his dysfunctional behaviors." The defendant "becomes anxious and frequently attributes his symptoms to drug cravings." The defendant "has difficulty demonstrating insight into persistent risk factors that have led to his continued retention, especially his anger towards others."

Upon his return to Rikers Island in December of 2017, the defendant continued to receive medical and other treatment.

Rikers Island Treatment Records¹⁹

19 While the Court has summarized a portion of the records here, the records in their entirety are in evidence and are incorporated by reference herein.

According to the Rikers Island treatment records, the defendant underwent urine drug screen testing on November 5, 2015, December 2, 2017, and May 1, 2018. Each of those tests was negative for the presence of "benzos, cocaine, meth, and opiates." The defendant reported that he had not "used any drugs since his incarceration in 2012."²⁰

20 The defendant later admitted that he had used illicit substances many times while incarcerated at Rikers in the summer of 2014, see infra .

The defendant, however, disclosed a "craving for heroin" and requested "some kind of detox." The defendant reported "good compliance" with his medication regimen. Nevertheless, a nurse at Rikers noted that the defendant "has poor to no compliance with am meds, stating he sleeps through that med call." His overall medication compliance fluctuated between 57 and 85 percent.

At the instant hearing, Dr. Hicks explained that he had diagnosed the defendant with Oppositional Defiant Disorder, Conduct Disorder, ADHD, Other Specified Depressive Disorder, Generalized Anxiety Disorder, Alcohol Use Disorder, Cannabis Use Disorder, Stimulant Use Disorder, Opioid Use Disorder, Sedative, Hypnotic, or Anxiolytic Disorder, Hallucinogenic Disorder, and Inhalant Use Disorder. As discussed supra , Dr. Hicks, who initially determined that the defendant did not have a Dangerous Mental Disorder, explained how his assessment of the defendant had changed. While Dr. Hicks had anticipated that the defendant would relapse, he was concerned that the relapse occurred after a year of inpatient substance abuse treatment and while the defendant was confined in a secure facility. The defendant, he concluded, had not benefitted from the substance abuse treatment and was engaged in manipulation of treatment providers. Dr. Hicks, reiterating the conclusion that he reached in his second report, testified that it was "an open question whether he did as well at Arbor Place as the staff thought he was doing." (Hearing, December 11, 2017, Hicks: 340-41). While the defendant had been drug tested at Arbor Place, he was also "frequently manipulating" and "charming staff" and the accuracy of any drug test result "depends entirely on the way those tests are performed and who performs them and whether there is a proper chain of custody to make sure the substances that are submitted are actually his urine or hair." (Hearing, December 11, 2017, Hicks: 341). Dr. Hicks concluded that he was "not really sure that [the defendant] didn't obtain and use drugs there." (Hearing, December 11, 2017, Hicks: 342). Additionally, instead of using the "skills" that he had supposedly learned at Arbor Place, the defendant "concealed the cravings and kept them to himself and had a friend bring opioids into him so he could use in spite of ... looking bad at these legal proceedings that he knew were forthcoming." (Hearing, December 11, 2017, Hicks: 343-44). Dr. Hicks noted that while the defendant admitted being a lifelong substance abuser, "he is simply not committed to remaining sober." (Hearing, December 11, 2017, Hicks: 362). Dr. Hicks explained again that his primary concern for the defendant was that "if he is obtaining drugs and using them, he could very easily overdose and die." Additionally, he noted that when the defendant is "in the community and using drugs he becomes irresponsible about other matters such as taking seizure medications, using drugs that can increase his risk of seizure, using drugs that interfere with his sleep, which increases his risk of seizure ... indirect ways in which using drugs makes him dangerous to others." (Hearing, December 11, 2017, Hicks: 345). Indeed, the instant offense "was committed during seizure and regardless of whether his seizure comes because he is not taking his medicine to prevent seizures or whether it comes because he is in withdrawal from alcohol or sedatives, either way, there would be a risk that he would engage in that kind of behavior, again, coming out of a seizure when he is in a confused state." (Hearing, December 11, 2017, Hicks: 347). Dr. Hicks acknowledged that there was no way to know if "anger towards his mother did lead to how he behaved in that confused state" or whether "anyone would have been at risk." (Hearing, December 11, 2017, Hicks: 348-49). Nevertheless, the defendant's "lifelong preoccupation with violence" may have played a role in the murder. (Hearing, December 11, 2017, Hicks: 349-50). Indeed, "[i]f he had not been angry, maybe this wouldn't have happened." If anger wasn't the state that the defendant "goes into so frequently maybe it could have turned out differently." (Hearing, December 11, 2017, Hicks: 369). Dr. Hicks concluded that the defendant's poor insight, inability to control his behavior, and continued substance abuse, renders him dangerous, requiring continued confinement in a secure facility.

Dr. Sarah Schaffer

In January and February of 2013, the defendant was evaluated by Dr. Sarah Schaffer, a Clinical Neuropsychologist with an expertise in treating epileptic patients.²¹ Dr. Schaffer met with the defendant over the course of three days. Dr. Schaffer noted that the defendant was cooperative, but his answers to her queries were often "vague" and contradictory. (Hicks, December 28, 2015: 11).²² The defendant was observed to be "impulsive, with difficulty delaying gratification" and demonstrated "poor frustration tolerance." The personality tests administered by Dr. Schaffer showed "over-reporting of somatic complaints ... a broad range of externalizing/acting out behaviors ... unconstrained, sensation-seeking, and impulsive traits ... significant emotional distress, anxiety, and insecurity." (Hicks, December 28, 2015: 11-12). Dr. Schaffer concluded that the defendant showed "strong evidence of marked frontal lobe dysfunction." She noted that the defendant "displayed a pervasive pattern of engaging in behaviors that are explicitly contraindicated, and ... has failed to demonstrate any motivation or willingness to engage in psychological interventions that might otherwise assist him in altering the maladaptive behaviors that are so prominent and disruptive in his day-to-day life." (Hicks, December 28, 2015: 12). Dr. Schaffer concluded that the defendant's "ability to regulate his emotions and behavior appears to be quite tenuous, which is particularly troubling given that anger and aggression seem to be his default response in times of adversity." Dr. Schaffer concluded that "there may have been subconscious intent related to harming his mother specifically when he was postictal during the instant offense, and that if the filter that normally stopped him from acting on these urges was momentarily lifted as a result of his seizure, her proximity to him may have been a trigger for his violence." (Hicks, December 28, 2015: 12).

21 As discussed supra , Dr. Schaffer was retained by the People to evaluate the defendant in connection with a disposition in this case and her conclusions regarding that examination lead to the defendant's not guilty by reason of mental disease or defect plea. Dr. Schaffer did not evaluate the defendant to determine whether he suffers from a Dangerous Mental Disorder. Dr. Schaffer was also present when the defendant was examined by Dr. Ziv Cohen, a forensic psychiatrist retained by the defendant, see infra .

22 Although Dr. Schaffer's report was not entered into evidence at the hearing, Dr. Hicks summarized her report and relied on it in drafting his own report.

Dr. Schaffer testified at the hearing and explained that she had performed a wide range of achievement tests on the defendant, including the Wechsler Adult Intelligence Scale-IV revision, Digit Span subtest, the Symbol Digit Modalities Test, DOT Counting Test, Grooved Peg Board, Finger Tapping and Grip Strength, Go/No-Go Test, Wisconsin Card Sorting Test, Booklet Category Test, Neuropsychological Assessment Battery, Mazes Subtest, Iowa Gambling Test, Delis-Kaplan Executive Functioning System Tower Test, Judgment of Line Orientation, Benton Facial Recognition, Hooper Visual Organization Test, Rey Complex Figure Test, Recognition Memory Test, Affect Naming, and Prosody Subtest. Dr. Schaffer also performed rating scales, which she described as "self-report questionnaires." (Hearing, December 15, 2017, Schaffer: 669). These included the Wender Utah Rating Scale-Revised, Conners' Adult ADHD Rating Scale Short Form, Behavior Rating Inventory of Executive Functioning, and the Minnesota Multiphasic Personality Inventory-2 Restructured Form. Dr. Schaffer diagnosed the defendant with ADHD Not Otherwise Specified, Mental Disorder Not Otherwise Specified Due to Refractory Generalized Epilepsy, Other (or unknown) Substance Abuse, Mood Disorder Not Otherwise Specified, Antisocial Personality Disorder, and Borderline Personality Disorder. Dr. Schaffer noted that the defendant exhibited executive functioning deficits suggesting a damaged frontal lobe, manifested by impulsivity, poor planning, disorganization, lack of inhibition, and the inefficient use of resources. (Hearing, December 15, 2017, Schaffer: 687). Such deficits caused the defendant to be unable to delay gratification or to identify mistakes and to learn from them over time. (Hearing, December 15, 2017, Schaffer: 673, 675). Additionally, the defendant exhibited personality disorders manifested by an inability to regulate behavior and emotions, and a tendency to act out, including having volatile relationships. (Hearing, December 15, 2017, Schaffer: 684-85). Dr. Schaffer further explained that substance abuse affects the frontal lobe of the brain, and that frontal lobe damage can make it harder for an addict to stop using illicit substances. (Hearing, December 15, 2017, Schaffer: 687-88). So, too, individuals with ADHD have "different frontal lobes." And, epilepsy can "permanently affect brain functioning." (Hearing, December 15, 2017, Schaffer: 687). Thus, the behaviors the defendant exhibited, combined with the disorders that he had been previously diagnosed with, led Dr. Schaffer to conclude that the defendant had sustained frontal lobe damage. She further testified that those three factors — executive functioning deficits, frontal lobe damage, and personality disorders — lead to the defendant killing his mother during the postictal phase of an epileptic seizure. (Hearing, December 15, 2017, Schaffer: 688). Nevertheless, Dr. Shaffer explained that during the murder, the defendant "was not consciously aware of his actions." (Hearing, December 15, 2017, Schaffer: 699).

Dr. Schaffer, who examined the defendant in 2013, was also present when the defendant was interviewed by Dr. Ziv Cohen in 2017, see infra . She noted that her conclusions had not changed over the course of those four years, and that the defendant continued to give "highly intellectualized answers," and say "what he thinks people want to hear." (Hearing, December 15, 2017, Schaffer: 700). Dr. Schaffer explained that she did not "trust much of what he says," as the records she reviewed, coupled with her own evaluation of the defendant, contradicted his answers. (Hearing, December 15, 2017, Schaffer: 700).

Dr. Schaffer additionally testified that an individual who has engaged in postictal violence is "at a much higher risk" of engaging in postictal violence again. (Hearing, December 15, 2017, Schaffer: 702). She concluded, therefore, that controlling the defendant's seizures is essential to preventing future postictal violence. (Hearing, December 15, 2017, Schaffer: 705). Dr. Schaffer testified that if the defendant "was sleeping, totally compliant with his medications, taking them as directed, remaining substance free ... if all factors were optimal" his epilepsy could be reasonably controlled. (Hearing, December 15, 2017, Schaffer: 705-06). Nevertheless, there is always "some risk" as anyone who has had a seizure is at risk of having additional seizures. Dr. Schaffer testified that Depakote, if not taken as prescribed, can lose its efficacy, and, depending on the individual, even one missed dose of Depakote can bring on a seizure. (Hearing, December 15, 2017, Schaffer: 708). Binge drinking and the use of certain illicit substances lowers the threshold for seizures. (Hearing, December 15, 2017, Schaffer: 710-11). Dr. Schaffer testified that to control his seizures, the defendant would need "major, major psychological interventions," to enable him to make the necessary lifestyle changes. (Hearing, December 15, 2017, Schaffer: 712). Of concern to her was the defendant's non-compliance with medication and use of illicit substances even in "highly structured controlled environments." She concluded that the defendant lacks the "skills" necessary to maintain a healthy lifestyle, and that he needs to "relearn life," but lacks the motivation to do that. (Hearing, December 15, 2017, Schaffer: 714). Dr. Schaffer explained that the defendant's drug use while confined at Kirby demonstrated this lack of motivation as, even knowing that the instant hearing was taking place, he was unable to "understand the consequences of his actions and ... delay gratification." (Hearing, December 15, 2017, Schaffer: 715-16). She noted that the defendant does not understand "at a deep level" the consequences of having another seizure as he has "removed" himself "from the implication." Dr. Schaffer concluded that the only factor motivating the defendant was "freedom." (Hearing, December 15, 2017, Schaffer: 717). Thus, Dr. Schaffer explained that the defendant needs mandatory court-ordered treatment "in a structured and secure setting." (Hearing, December 15, 2017, Schaffer: 718, 720).²³

23 Although Dr. Schaffer's examination of the defendant was not aimed at evaluating his dangerousness under the statute, she, nevertheless, concluded that his continued confinement in a secure facility is warranted.

Dr. Brian Belfi

Dr. Brian Belfi, a Psychologist and Deputy Director of Operations at Kirby, interviewed the defendant jointly with Dr. Hicks on November 16, 2015 and October 11, 2017.²⁴ Dr. Belfi noted that the defendant "seem[ed] to believe [he] has his mental health under control," and his "[i]nsight is fair regarding his issues surrounding mental illness and need for psychiatric treatment." (Belfi, March 9, 2016: 15). Additionally, the defendant indicated that he was "confident" in his recovery and that he would "really flourish" if he returned to Arbor House. When asked about the murder of his mother, the defendant stated that "[i]t was a long time ago" and that it was "a function of fight or flight," adding that "Keppra or Lamictal has been known to cause aggression." (Belfi, March 9, 2016: 16). The defendant admitted that it was "stupid" to "take an extra dose of Keppra" and that at the time of the murder, he was also "sniffing and eating Adderall."

24 Dr. Belfi prepared one report, following his initial examination of the defendant.

At the hearing, Dr. Belfi explained that he had diagnosed the defendant with Major Depressive Disorder (in partial remission), ADHD, Conduct Disorder, Alcohol Use Disorder, Cannabis Use Disorder, Stimulant Use Disorder, Opioid Use Disorder, Sedative, Hypnotic, and Anxiolytic Disorder, Hallucinogenic Disorder, Inhalant Use Disorder, and Personality Disorder (not otherwise specified).²⁵ Dr. Belfi explained that the defendant's "early-on behaviors," including "physical aggression ... towards others" and "lack of responsibility" for his behaviors, "were particularly concerning." (Hearing, December 6, 2017, Belfi: 45). Dr. Belfi noted that "the earlier one is engaging" in this type of behavior, "the more concerning it is," as the behavior tends to continue into adolescence and adulthood. (Hearing, December 6, 2017, Belfi: 46). Further, the defendant's use of cocaine at the age of twelve was significant as, "the earlier" an individual begins using illicit substances, the "worse" the "prognosis" for recovery. (Hearing, December 6, 2017, Belfi: 46). Moreover, the early use of illicit substances impacted the defendant's "ability to judge situations appropriately ... to see the consequences of his behaviors." (Hearing, December 6, 2017, Belfi: 53). Additionally, Dr. Belfi noted that the defendant's lack of remorse for killing his mother was an important manifestation of his personality disorders and indicates that the defendant had neither "fully addressed" nor "truly appreciated" what he did. (Hearing, December 6, 2017, Belfi: 56-57). Instead, the defendant "seem[ed] to be chalking it up to a medical condition that was not his fault." While the defendant "demonstrated some insight into his condition," that insight was "not at a level that one would think that he's not dangerous anymore." (Hearing, December 6, 2017, Belfi: 71). Indeed, Dr. Belfi opined that the defendant was actively engaged in impression management, and "extremely concerned about divulging what's truly going on with him for fear of how it will come out in court." (Hearing, December 6, 2017, Belfi: 74). Thus, while the defendant did not "strike [him] as someone that's going to go around beating people up on the subway ... this situation could present itself again if he were to not follow through with his medication as prescribed, i.e. the epilepsy or his psychiatric treatment." (Hearing, December 6, 2017, Belfi: 61-62). Dr. Belfi expressed concern regarding the defendant's drug use at Kirby, noting that he demonstrated "poor judgment, lack of impulse control, [and] inability to see the consequences of his actions" as "he was obviously in the [throes] of this hearing and yet still could not stop from looking to get drugs." (Hearing, December 6, 2017, Belfi: 44). Dr. Belfi concluded that the defendant's inability to understand how his actions lead up to the murder and his failure to learn from experience render him dangerous. (Hearing, December 6, 2017, Belfi: 79-80). Dr. Belfi testified that continued treatment for the defendant's disorders in "the environment like Kirby of an extremely controlled setting [is] important for [the defendant's] mental health and future prognosis," and concluded, therefore, that the defendant has a Dangerous Mental Disorder. (Hearing, December 6, 2017, Belfi: 42).

25 Dr. Belfi testified that the defendant's Personality Disorder involves a Cluster B diagnosis — narcissism, histrionics, and Borderline Personality Disorder. He explained that Borderline Personality Disorder is characterized by extreme reactions in emotional situations. Dr. Belfi noted that while the defendant exhibited traits of Antisocial Personality Disorder, that type of disorder must be diagnosed after the age of eighteen. When Dr. Belfi first interviewed the defendant, he was twenty-two years old and had been confined for a significant time, thus, there was a limited opportunity to display the behaviors characteristic of that disorder, inter alia , reckless disregard for self or others, irresponsibility, and impulsivity. Nonetheless, Belfi acknowledged that the defendant had exhibited said behaviors.

Dr. Irene Katsamanis

Dr. Irene Katsamanis, a Clinical Psychologist employed by the New York State Office of Mental Health, performed an evaluation of the defendant on February 16, 2016.²⁶ Dr. Katsamanis noted that the defendant admitted being a polyamorous substance abuser and stated that he "enjoyed consuming alcohol, cocaine, and opiates." (Katsamanis, March 3, 2016: 18). The defendant acknowledged that he would "probably die" if he continued abusing substances. The defendant referred to his "case" and stated, "it's something that happened to me." (Katsamanis, March 3, 2016: 19). When asked about his continued substance abuse while incarcerated at Rikers Island, the defendant stated that he "wanted to get high" and was not "thinking about getting in trouble." The defendant added that "[b]eing in New York is a trigger" and that it was much easier to stay sober at Arbor Place, where everything is "clean... healthy... happy." The defendant told Dr. Katsamanis that he was "ready to move on, go back to school, get a job" and "integrate into society." (Katsamanis, March 3, 2016: 20). Dr. Katsamanis concluded that "despite considerable improvement under court-mandated conditions [the defendant] continues to suffer from a combination of disorders that pose a risk of future danger if he were to leave a secure facility." (Katsamanis, March 3, 2016: 28). Thus, she determined, the defendant has a Dangerous Mental Disorder, requiring continued confinement in a secure psychiatric facility.

26 As Drs. Hicks and Belfi initially disagreed with respect to the defendant's mental status, Dr. Katsamanis was tasked with performing a third interview of the defendant.

Dr. Katsamanis testified at the hearing and explained that she had diagnosed the defendant with Oppositional Defiant Disorder, Conduct Disorder, ADHD, Other Specified Depressive Disorder, Generalized Anxiety Disorder, Alcohol Use Disorder, Cannabis Use Disorder, Stimulant Use Disorder, Opioid Use Disorder, Sedative, Hypnotic, or Anxiolytic Disorder, Hallucinogenic Disorder, and Inhalant Use Disorder. In lay terms, Dr. Katsamanis explained that the defendant "has neurological, mood, character defects that make him prone to drug use, poor compliance, suicide, externalizing acting out behaviors." (Hearing, December 7, 2017, Katsamanis: 168). She noted that the defendant continued to "show signs of entitlement, poor impulsivity ... poor frustration tolerance, poor judgment" and that "anger and aggression are his default responses in times of stress or adversity." (Hearing, December 7, 2017, Katsamanis: 175). Dr. Katsamanis described several occasions while the defendant was at Kirby when he was "bullying other patients and intimidating them," becoming "confrontational" and "combative" with his treatment team, calling his psychologist "a fucking bitch," and "verbally abusing" staff. (Hearing, December 7, 2017, Katsamanis: 175-78). She added that the defendant "has had trouble his entire life with following rules, controlling his impulses, his rage," and concluded that if he is "unable to follow the rules in a secure facility, the likelihood that he's going to be able to do that in a less secure facility is low." (Hearing, December 7, 2017, Katsamanis: 180). Additionally, the defendant's history of poor compliance with prescribed medication and "flippant" attitude towards psychotherapy suggest a "pretty high" likelihood that he would not be compliant or engage in treatment if not "mandated." (Hearing, December 7, 2017, Katsamanis: 186). Indeed, Dr. Katsamanis noted that the defendant needs "intensive psychotherapy ... to begin to explore the drug abuse, the interplay, the personality, the neurological, the substance abuse, all of the factors that create a perfect storm." (Hearing, December 7, 2017, Katsamanis: 185). Dr. Katsamanis explained that the defendant is also a danger to himself as when he is depressed, he "does not have coping skills necessary to alleviate a lot of that pain" and resorts to "externalizing by acting out and self-abuse." (Hearing, December 7, 2017, Katsamanis: 189). Dr. Katsamanis explained that the defendant's "disregard" of medical advice, ongoing alcohol and drug abuse, self-medication, sleep deprivation and lack of compliance with prescribed medication, all contributed to the defendant's actions on the day of the murder. (Hearing, December 7, 2017, Katsamanis: 191). Additionally, the 911 call lead Dr. Katsamanis to conclude that the defendant "becomes a serious risk of becoming dangerous when someone is trying to intervene when he is recovering" from a seizure. (Hearing, December 7, 2017, Katsamanis: 193). Dr. Katsamanis concluded that the defendant does have "genuine remorse for what happened" but that there continues to be "a lot of issues that need to be worked out in terms of some of the feelings he had regarding his mother." (Hearing, December 7, 2017, Katsamanis: 197). Nevertheless, the defendant's insight was lacking as he continued to describe the murder as "a freak accident," his attitude towards recovery was "overly confident," and he failed to understand "the interplay between the importance of complying with his medication and abstaining from [illicit] substances and maintaining good sleep in terms of regulating his epilepsy." (Hearing, December 7, 2017, Katsamanis: 198). Dr. Katsamanis, therefore, concluded that the defendant has a Dangerous Mental Disorder, warranting continued treatment in a secure facility.

The Defendant's Case - Relevant Portions of the Testimony at the Hearing ²⁷

27 The defendant made an opening statement during which he implored the Court to designate him a track two and mandate that he receive long term inpatient psychiatric and substance abuse treatment. The defendant subsequently called Dr. Robert Smith, a clinical psychologist and addiction specialist at Metro Health System in Cleveland, Ohio, to testify in an "educational" capacity with respect to the treatment of addiction and relapse. (Hearing, December 18, 2017, Smith: 826). The People objected to Dr. Smith's testimony as irrelevant. The defendant countered that Dr. Smith's testimony with respect to "the best practices for crafting conditions for drug and alcohol rehabilitation treatment" would enable the Court to determine, should the Court release the defendant from confinement entirely — whether criminal or civil — if "the proposed conditions" submitted by the defendant would be "appropriate to impose on somebody in [the defendant's] situation." (Hearing, December 18, 2017, Smith: 834-35). The Court, hearing for the first time that the defendant was seeking designation as a track three so as to be released from confinement entirely, expressed surprise, as even the defendant's experts did not recommend that the defendant be released back into the community, see infra . While a discussion with respect to reasonable and appropriate conditions may be warranted in the future, said discussion would be unproductive at this juncture. Thus, the Court need not summarize Dr. Smith's testimony here.

Dr. Chinmoy Gulrajani

Dr. Chinmoy Gulrajani, a forensic psychiatrist employed by the Minnesota Department of Human Services, was retained by the defendant to interview him in connection with the instant hearing. Dr. Gulrajani interviewed the defendant while the defendant was a patient at UMMC in August of 2015. Dr. Gulrajani diagnosed the defendant with Major Depressive Disorder, Attention Deficit Hyperactivity Disorder, Alcohol Use Disorder, Opioid Use Disorder, Cocaine Use Disorder, Other Substance (Ketamine ) Use Disorder, Unspecified Personality Disorder (characterized by impulsivity, low frustration tolerance, dependence). Dr. Gulrajani testified that the defendant is mentally ill, but indicated that he "would rather not give an opinion regarding the ultimate issue." Nevertheless, Dr. Gulrajani concluded that the defendant was "not at risk for imminent harm or future harm." (Hearing, December 13, 2017, Gulrajani: 559, 567). Dr. Gulrajani explained that the defendant had three risk factors that he considered in making his determination — a "history of epilepsy, his substance abuse disorder, and his personality factors." (Hearing, December 13, 2017, Gulrajani: 478, 500-01). At the time that Dr. Gulrajani evaluated the defendant in 2015, the defendant had not had a seizure since he was an inpatient at UMMC, had been abstinent at Arbor Place, and had shown improvement in his problem solving and appeared to be "much more at peace" as a result. (Hearing, December 13, 2017, Gulrajani: 480-81). Additionally, the defendant had not engaged in any acts of violence from 2015 up until the time of the hearing in 2017. (Hearing, December 13, 2017, Gulrajani: 501-02). Dr. Gulrajani, therefore, concluded that if the defendant continued treatment for psychological and substance abuse issues, his prognosis was "good." (Hearing, December 13, 2017, Gulrajani: 500-01). Dr. Gulrajani opined that the defendant would continue to be compliant with epilepsy medication as he had "never refused to take this medication," had expressed to Dr. Gulrajani a desire "to remain seizure free," and had "gone through a lot" and understood "what the detrimental consequences of another seizure could be." (Hearing, December 13, 2017, Gulrajani: 503). Dr. Gulrajani explained that at the time the defendant killed his mother, he had been taking Keppra for his epilepsy, a drug with "detrimental behavior side effects" including "depressed mood, bouts of severe depression combined with suicidal ideation, irritability and flare up of anger." (Hearing, December 13, 2017, Gulrajani: 505-06). According to Dr. Gulrajani, the likelihood of the defendant having another seizure if he continued taking Depakote was "very low," and the likelihood of a violent seizure was also low as "violence that happens in the course of an epileptic seizure is inherently a rare phenomenon." (Hearing, December 13, 2017, Gulrajani: 506). Dr. Gulrajani, however, conceded that it was not "impossible" that the defendant would have an additional violent seizure as it is an "unpredictable" phenomenon. Dr. Gulrajani noted that the defendant's "risk of having a seizure five years ago was very different from what his risk of having a seizure today [would be as] ... he is on better medication, he is not using substances anymore, he has been sticking to his treatment." (Hearing, December 13, 2017, Gulrajani: 572). Additionally, Dr. Gulrajani opined that the defendant had reached a "grade six" level of insight — the maximum — into his substance abuse as the defendant understands he has "a problem," understands the "behaviors" he needs to change for the "problem not to reoccur," and understands the level and extent of treatment he requires. (Hearing, December 13, 2017, Gulrajani: 516-17). Dr. Gulrajani reviewed the Arbor Place records and explained that one of the reasons the defendant had done so well there was its location, as upon "transition back to his home community ... he's going to have memories of times when he used to get high." (Hearing, December 13, 2017, Gulrajani: 529). As the defendant's "biggest risk factor would be substance abuse," Dr. Gulrajani concluded that the defendant should be placed in a voluntary inpatient substance abuse facility. (Hearing, December 13, 2017, Gulrajani: 521).

Dr. Karl Bazil

Dr. Karl Bazil, a Neurologist and Division Chief of the Epilepsy and Sleep Disorders Division at New York Presbyterian Hospital, was retained by the defendant to testify at the hearing.²⁸ Dr. Bazil testified that he did not examine the defendant, but that examining him "would not change anything." (Hearing, December 18, 2017, Bazil: 826). Dr. Bazil testified that he understood the defendant's last seizure to be some 4½ years prior, and that although it was "possible" he had had a subsequent seizure and not been aware of it, the likelihood was "very small." (Hearing, December 18, 2017, Bazil: 906, 908). Dr. Bazil concluded, too, that it is "extremely likely" that the defendant will remain seizure free now that he is on Depakote, "the gold standard of treatment for generalized epilepsy." (Hearing, December 18, 2017, Bazil: 909). Nevertheless, Dr. Bazil acknowledged that "Keppra is not an inappropriate medicine" and that in some circumstances, can be "better tolerated" by patients. (Hearing, December 18, 2017, Bazil: 909-10). And while Dr. Bazil explained that Keppra was known to "sometimes cause agitation or mood problems," he was unaware of "any information particularly related to the postictal state and whether it would be likely to cause agitation in the postictal state." (Hearing, December 18, 2017, Bazil: 913-14). In fact, among the millions of patients who have been treated with Keppra, the defendant is the only individual he is aware of who beat someone to death in the postictal phase. (Hearing, December 18, 2017, Bazil: 958). Indeed, Dr. Bazil explained that it was "very unusual" to see the level of violence that the defendant exhibited on April 10, 2012 in the postictal stage of a seizure. (Hearing, December 18, 2017, Bazil: 912-13). While the defendant had shown some evidence of improvement once he began taking the Depakote, and had been seizure free for nearly five years, Dr. Bazil was not inclined to discontinue treating the defendant with Depakote, as there is still a chance of having an additional seizure. (Hearing, December 18, 2017, Bazil: 909-11). He conceded that if an individual demonstrates a pattern of violence during the postictal stage, the chances are "greater" that that individual would be violent again, but added that it was unlikely that the defendant would become violent postictal again, as the defendant had not demonstrated a "pattern" of postictal violence. (Hearing, December 18, 2017, Bazil: 954-55).

28 Dr. Bazil did not evaluate whether the defendant has a Dangerous Mental Disorder.

Dr. Ziv Cohen

Dr. Ziv Cohen, a forensic psychiatrist retained by the defendant, interviewed him on May 9, 2017, May 22, 2017, and July 14, 2017.²⁹ Dr. Cohen testified at the hearing and explained that he had diagnosed the defendant with Major Depressive Disorder, Generalized Anxiety Disorder, Substance Abuse Disorders (Opioid, Cocaine, Cannabis, and Alcohol), Attention Deficit Hyperactivity Disorder, Trauma and Stressor Related Disorder, and Personality Disorder (Unspecified) with narcissistic and borderline traits. Dr. Cohen, however, concluded that the defendant does not have a Dangerous Mental Disorder. Dr. Cohen explained that "to a reasonable degree of medical certainty," "the likelihood" of the defendant engaging in future violence is "low." (Hearing, December 20, 2017, Cohen: 1133). Dr. Cohen based that opinion on several factors and explained that the defendant has "had dozens of seizures in his life, had not exhibited violence with any of the other seizures; that his seizure disorder is in remission; that he had been in custodial care or institutionalization since the instant offense and has not exhibited violence in a number of institutions; and that his substance use disorders have been in institutional remission with the exception of one relapse that he had in approximately the summer of 2016." (Hearing, December 20, 2017, Cohen: 1133). Dr. Cohen explained that by "one relapse," he meant the "approximately two or three-month period" when the defendant was smuggling drugs into Kirby. (Hearing, December 20, 2017, Cohen: 1134). Dr. Cohen testified that he had reviewed records in which the defendant's adolescent psychologist described the defendant as being aggressive, but concluded that it was unclear to him "how much of those statements ... are really blustered in adolescence which ... is common with adolescent boys versus something that really happened." (Hearing, December 20, 2017, Cohen: 1135). Nevertheless, as the defendant's seizures "are in remission and given that's the only instance in which he's shown violence, that would lead me to conclude that his risk for violence is low." (Hearing, December 20, 2017, Cohen: 1137). Similarly, as the defendant had not overdosed or relapsed when outside of a secure facility, Dr. Cohen concluded that he was "a low risk for relapse and a low risk for overdose." (Hearing, December 20, 2017, Cohen: 1139). Dr. Cohen, however, acknowledged that his opinion was based on the defendant "getting supervision and treatment" and that he was not recommending that the defendant "go into the community," rather, he was recommending a "civil psychiatric setting." (Hearing, January 5, 2018, Cohen: 1180). Dr. Cohen noted that the defendant was "older" and "more mature" than when he killed his mother and has a "much better understanding of his illness" and is "very remorseful for his poor self-care and how that may have resulted in seizures." (Hearing, January 5, 2018, Cohen: 1185). Dr. Cohen testified that the defendant was motivated to continue taking Depakote as prescribed and did not find him "suicidal at all," or demonstrating any "suicidal risk at all." (Hearing, January 5, 2018, Cohen: 1187, 1210). Dr. Cohen concluded that as the defendant "has really maxed out the treatment that he can get at Kirby, and because of the lack of dangerousness, it's time for him to move on to the next setting where he still has a high degree of supervision and structure, but he has more directed treatment for his substance abuse issues." (Hearing, January 5, 2018, Cohen: 1206).

29 As discussed supra , Dr. Sarah Schaffer, the Clinical Neuropsychologist retained by the People, was also present during the interviews.

Conclusions of Law

Following the defendant's plea of not guilty by reason of mental disease or defect, he was confined to Kirby, a secure psychiatric facility, and psychiatric examinations were undertaken to determine if continued confinement is warranted. See C.P.L. § 330.20(4). Following those psychiatric examinations, an "initial hearing" was ordered to determine the defendant's present mental condition. See C.P.L. § 330.20(6). Pursuant to C.P.L. § 330.20 (7), a court, in determining an individual's present mental condition, must choose one of three dispositions, commonly referred to as "tracks," each with its own treatment modalities and procedural consequences. Thus, a court must determine whether an individual: (1) has a dangerous mental disorder (track one); (2) does not have a dangerous mental disorder but is mentally ill (track two); or, (3) does not have a dangerous mental disorder and is not mentally ill (track three). See C.P.L. §§ 330.20(6), (7) ; People v. Stone, 73 NY2d 296 (1989). A court may order that a track one individual — a defendant with a Dangerous Mental Disorder — be committed to a secure facility pursuant to C.P.L. § 330.20, only if the People prove at the initial hearing, by a fair preponderance of the credible evidence, that the defendant suffers from a Dangerous Mental Disorder. See People v. Escobar , 61 NY2d 431 (1984). Pursuant to C.P.L. § 330.20(1)(c), a Dangerous Mental Disorder is "a mental illness" as defined in subdivision twenty of section 1.03 of the Mental Hygiene Law that causes an individual to be "a physical danger to himself or others." M.H.L. § 1.03(20) defines mental illness as "an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation." A court conducting a C.P.L. § 330.20 hearing is required to make specific findings as to the existence of both a mental illness — manifested by disturbance in behavior, feeling, thinking, or judgment — and dangerousness. See Matter of David B. , 97 NY2d 267 (2002).

To begin, there is no question that the People proved by a fair preponderance of the credible evidence that the defendant suffers from mental illnesses. Putting aside the defendant's polyamorous substance abuse for a moment, the catalogue of mental disorders diagnosed by the defendant's experts alone, paints a bleak picture. Indeed, Dr. Cohen diagnosed the defendant with Major Depressive Disorder, Generalized Anxiety Disorder, and an unspecified Personality Disorder with narcissistic and borderline traits, and Dr. Gulrajani additionally diagnosed the defendant with an unspecified Personality Disorder characterized by impulsivity, low frustration tolerance, and dependence. But the list does not stop at three or four mental illnesses. To be sure, the People's experts diagnosed the defendant with additional mental disorders — a veritable laundry list of afflictions. Dr. Schaffer diagnosed the defendant with Mood Disorder Not Otherwise Specified, Antisocial Personality Disorder, and Borderline Personality Disorder, Dr. Belfi additionally diagnosed the defendant with Major Depressive Disorder (in partial remission), Conduct Disorder, and Personality Disorder (not otherwise specified), Dr. Hicks additionally diagnosed the defendant with Oppositional Defiant Disorder, and Dr. Katsamanis additionally diagnosed the defendant with Other Specified Depressive Disorder. Moreover, the experts — the defendant's and the People's alike — outlined a catalogue of ways in which the defendant's mental illnesses have and continue to impact his behavior, feeling, thinking, and judgment, including antisocial tendencies, a lifelong preoccupation with violence, a tendency to act out and have volatile relationships, a lack of impulse control, an inability to regulate emotions, an inability to see the consequences of his actions, a sense of entitlement, poor frustration tolerance, a history of self-harm, a lack of coping mechanisms, a tendency towards aggressive behavior, and a history of suicidal ideations. The foregoing mental disorders and the manner in which they manifest themselves, however, still do not paint the whole picture. Indeed, Dr. Schaffer concluded that the defendant exhibited executive functioning deficits that suggest brain damage — frontal lobe damage. That damage is manifested by, inter alia , an inability to learn from mistakes, impulsivity, a lack of inhibition, and an inability to delay gratification. So, too, Dr. Gulrajani acknowledged that the defendant's executive brain function has been compromised, resulting in, inter alia , poor time management and an inability to plan ahead. And still the picture is incomplete. Indeed, there is also the defendant's polyamorous substance abuse. According to the defendant himself, his addiction will always be a 10 on a scale of 1 to 10, and he has abused anything that he can get his hands on — alcohol, homemade alcohol ("Hooch"), LSD, Ketamine ("Special K"), Cocaine, Marihuana, Vicodin, Percocet, OxyContin, Valium, Xanax, Ativan, Ambien, PCP, mushrooms, cough syrup, Ecstasy, Amyl Nitrates, Bath Salts, Clonazepam, Heroin, Adderall, Whippets, Suboxone, and Codeine. In sum, the credible, consistent, and compelling evidence irrefutably establishes the existence of myriad mental illnesses that negatively impact the defendant's behavior, feeling, thinking, and judgment.³⁰

30 While the statute refers to "behavior, feeling, thinking, or judgment," here, the defendant's myriad mental illnesses impact his behavior, feeling, thinking, and judgment. See M.H.L. § 1.03(20).

The more pressing question, however, is whether those mental illnesses render the defendant dangerous. In determining whether an individual's mental illness constitutes a Dangerous Mental Disorder, a court may consider various factors, including: (1) the individual's insight into the underlying mental illness; (2) the presence of substance abuse or "other dangerous activities;" (3) whether an individual has a history of relapsing into violent behavior; (4) whether "continued medication is necessary to control [an individual's] violent tendencies; (5) the likelihood of compliance with prescribed medication based on "a prior history of noncompliance or because of threats of future noncompliance;" (6) the individual's willingness to accept responsibility for criminal or dangerous acts; and, (7) the "recency" and "nature" of the criminal act. See Matter of George L. , 85 NY2d 295, 308 (1995).

Here, there is much that the experts who testified at the hearing agree upon — that the defendant, a polyamorous substance abuser with an assortment of mental health disorders, including a history of suicidal ideation, additionally diagnosed with epilepsy, and a history of non-compliance with prescribed seizure controlling medication, used illicit substances on many occasions while incarcerated at Rikers Island and later while confined to Kirby, a secure psychiatric facility, and who is likely, indeed expected, to use illicit substances in the future — beat his mother to death during the postictal phase of an epileptic seizure. Perhaps not surprisingly, the conclusions reached by those same experts with respect to the impact of the defendant's many risk factors are split evenly along party lines — the People's witnesses concluding that the defendant has a Dangerous Mental Disorder and the defendant's witnesses concluding that the defendant does not have a Dangerous Mental Disorder.³¹ Faced, therefore, with the conflicting opinions of multiple experts, the Court must now sift through the evidence before it, and with some degree of divination, predict the defendant's future.

31 Notably, while the People's experts agree that the defendant suffers from a Dangerous Mental Disorder, how they arrived at that conclusion varies. Drs. Belfi and Katsamanis concluded that the defendant is primarily a danger to others due to the looming threat of future postictal violence, a result of the defendant's personality disorders, polyamorous drug addiction, and noncompliance with seizure preventing medication. Dr. Hicks concluded that the defendant is primarily a danger to himself, due to the looming threat of a future overdose, while noting that the defendant is also a danger to others, due to his unresolved polyamorous substance abuse, lack of motivation to remain free from illicit substances, and the looming threat of a breakthrough seizure with attendant postictal violence.

Turning, however, to each of the factors that the Court must consider, a clear picture of the defendant's dangerousness readily emerges. To begin, the defendant has consistently demonstrated a stunning lack of insight into the numerous mental illnesses from which he suffers. Indeed, while the defendant has regularly informed mental health professionals that he could live on his own, those same providers have concluded otherwise. To be sure, despite persistent efforts over the course of many years by numerous treatment professionals — many of his own choosing — the defendant has simply failed to grasp the seriousness of his illnesses. For example, in the summer of 2013 while at UMMC, the defendant, rather than focusing on treatment, told doctors that he was there only for legal reasons — his lawyer had set it up to get him out of jail. When the defendant returned to Rikers from UMMC in July of 2013, he expressed annoyance at being referred for psychiatric treatment, insisting that he was not interested in therapy — he did not need it — and that he just wanted to be given his medication. Notably, during the thirteen months that he spent at Arbor Place, the defendant was routinely late for therapy sessions, dismissed addiction meetings as unimportant, and failed to attend programming on an almost daily basis. While at Kirby in late 2015, the defendant's treatment team noted that he did not seem to appreciate that he was mentally ill. Moreover, and as recently as October of 2017, the defendant attributed his poor progress in treatment to the providers at Kirby, rather than his own lack of motivation and resistance to treatment. It, therefore, comes as no surprise that Dr. Katsamanis described the defendant's attitude towards mental health treatment as flippant, or that Dr. Schaffer concluded that the defendant had shown no greater insight when he was interviewed by her and Dr. Cohen in 2017, than when she interviewed him in 2013.

Not only does the defendant lack insight into his myriad mental illnesses, he demonstrates a similar lack of insight into his epilepsy and history of seizures. Indeed, the defendant exhibits little understanding of how to control his condition and prevent future seizures. When first incarcerated at Rikers Island, the defendant provided treatment providers with conflicting information about his epilepsy and even faked seizures so that he would be transferred to a different ward. Then, when admitted to UMMC in 2013, the defendant told doctors that sleep deprivation was the sole cause of his seizures — his drug and alcohol abuse had nothing to do with it. Despite being educated about the importance of sobriety to prevent seizures, the defendant was overheard telling a fellow patient that he was still a menace to society as he would be back to partying as soon as his epilepsy was treated. Then, while at Arbor Place, despite repeated admonitions about the importance of maintaining regular sleep patterns to prevent seizures, the defendant routinely ignored the advice of staff members and did as he pleased. Indeed, as Dr. Schaffer succinctly explained, the defendant fails to understand his condition and lacks the motivation to control it.

The defendant, however, not only suffers from an assortment of mental illnesses, lacks insight into those mental illnesses, and further lacks insight into his epilepsy — he is also a self-admitted polyamorous substance abuser who has both denied and minimized his addiction, and has repeatedly demonstrated that he has no interest in attaining and maintaining sobriety. Indeed, the defendant's love affair with illicit substances began at the ripe young age of twelve. By the time he entered high school, the defendant had, inter alia , smoked pot, used acid, mushrooms, ecstasy, bath salts and PCP, injected Special K, and snorted cocaine so frequently that he "dreamed of consuming it hungrily." Nevertheless, the defendant denied needing substance abuse treatment, and even after being enrolled in an outpatient substance abuse program by his parents, continued to abuse various illicit substances. In fact, on the eve of the murder, the defendant snorted several unprescribed amphetamine pills. Nevertheless, when the defendant was admitted to Bellevue immediately following his arrest, he minimized his drug use. When he was returned to Rikers a few months later, he engaged in medication seeking behavior, attempting to have doctors prescribe controlled substances such as Xanax and Ativan. And yet, the defendant refused substance abuse treatment, informing staff that he liked getting high and had no interest in being clean from drugs. Upon his admission to UMMC in May of 2013, the defendant was found to be highly resistant to substance abuse treatment, lacking in insight, and unable to stop abusing illicit substances. Moreover, when he was returned to Rikers Island a few months later, he continued to use drugs and alcohol — snorting heroin and drinking homemade alcohol on multiple occasions. Then, in 2014 when the defendant was admitted to Arbor Place, a facility with experience in treating mentally ill addicts — a facility of his own choosing — he lied about his substance abuse history and denied having issues related to substance abuse. Additionally, the defendant refused to attend several AA and NA meetings, and on at least one occasion, when informed that he was late for an AA meeting, brushed it off, saying, it's just AA. Later, after several months of treatment, and well over three years after he had murdered his mother, the defendant continued to engage in euphoric recall of his drug and alcohol fueled party life in New York City. Moreover, after spending thirteen months as an inpatient at Arbor Place,³² the defendant returned to Kirby and at the very earliest opportunity convinced a friend to smuggle heroin into the secure facility, which he then ingested, becoming visibly and alarmingly ill. That the defendant convinced Dr. Hicks, the Associate Clinical Director of Kirby Forensic Psychiatric Center, of his sobriety and commitment to sobriety, while almost simultaneously arranging for a friend to smuggle heroin into that secure facility, speaks volumes about the lengths to which he will go to get high, his capacity for subterfuge, his lack of motivation in attaining sobriety, and his ability to deceive. Moreover, the defendant's polyamorous substance abuse presents a very real risk that he will overdose. A risk that will only increase, and, exponentially so, outside of a secure facility.

32 Although the Arbor Place records indicate that the defendant was abstinent during his time there, he was accused of submitting someone else's urine for drug testing and was not tested at all for the final five months of his stay.

Nevertheless, polyamorous substance abuse is not the only dangerous activity in which the defendant has engaged. Indeed, since his early teens, the defendant has repeatedly and consistently engaged in self-harm and expressed suicidal ideations — from a fantasy of shooting himself to burning his body with lighters and cigarettes.³³ Additionally, on one occasion as a teenager, the defendant attempted to commit suicide by cutting his wrists with a knife. After his mother's murder, while being treated at Bellevue, the defendant told a doctor that he wanted to die so that he would not have to feel the pain of her death, and was observed to have wounds on his wrists. Shortly thereafter, while at Rikers Island, the defendant fashioned a soap ball that he could swallow to commit suicide. Then, at UMMC in the summer of 2013, the defendant repeatedly expressed suicidal ideations, telling doctors that it would be easier for him to go to sleep and not wake up, and that being in the hospital setting was preventing him from killing himself. Later, at Arbor Place, the defendant expressed suicidal ideations on a frequent basis. Indeed, staff members were repeatedly instructed to conduct safety checks of him every thirty minutes. Then, after he smuggled heroin into Kirby, the defendant again expressed suicidal ideations and was placed under continuous observation.

33 Notably, a history of "suicidal tendencies" alone may warrant confinement in a secure facility. See Matter of David B. , 97 NY2d at 267.
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And yet, there's more. The defendant has demonstrated a lifelong preoccupation with violence, starting with a middle school plot to commit the perfect crime — the murder of an elderly woman. So, too, at a rather tender age, the defendant expressed a desire to humiliate his peers and enthusiastically embraced sadistic practices at a camp that he attended. Additionally, as a teen, the defendant expressed an interest in domination/rape fantasies, and, after an episode of binge drinking, threatened to kill and choke his mother. Moreover, anger and aggression continue to be the defendant's default responses, whether towards fellow inmates, other patients, or medical personnel. Indeed, when initially admitted to Bellevue Hospital, the defendant threatened and engaged in frequent verbal altercations with fellow patients, and on at least one occasion, had to be separated from a physical altercation with a fellow patient. Later, at UMMC, the defendant was noted to have low frustration tolerance, to be prone to frequent anger, and, on one occasion, appeared to be ready to pounce on staff members. Then, while at Arbor Place, the defendant was consistently hostile and aggressive towards staff members and patients alike. As recently as December of 2017, while being treated at Kirby, the defendant, who was repeatedly described as angry and confrontational, engaged in verbal altercations with staff members.

That the defendant, in a controlled and secure setting, may not have yet relapsed into the same type of violent behavior, is of little solace. Indeed, the uncontradicted hearing evidence establishes that the key to preventing a relapse to violent behavior is the scrupulous adherence to an anti-seizure medication regimen. Preventing a future seizure, thus preventing postictal violence — no matter how rare the phenomenon — is only possible if the defendant continues to take the Depakote as prescribed. To be sure, every expert — the defendant's and the People's alike — explained that having previously experienced a seizure, the defendant is more likely to have another. Moreover, Dr. Schaffer testified that while every individual is different, Depakote, when not taken as prescribed, can lose its efficacy and that even a single missed dose can bring on a seizure. Notwithstanding, the defendant has consistently demonstrated a distressing lack of compliance with medication prescribed to control his epilepsy and prevent future seizures. Indeed, around the time of the murder, the defendant occasionally took an extra dose of his anti-seizure medication to try to compensate for a lack of sleep. Then, while incarcerated at Rikers Island in 2012, the defendant's noncompliance with medication lead to him being placed on observational therapy to ensure that he was taking his medication as prescribed. Later, when at Arbor Place, despite constant reminders about the importance of taking medication on a consistent schedule, and daily interventions by staff members, the defendant managed to take his epilepsy medication on time only twice over the course of some thirteen months. Then, in the throes of this hearing, as the defendant attempted to convince this Court that he is motivated and committed to controlling his epilepsy and preventing future seizures, and purportedly future seizures, the Rikers medical records were telling a different tale. Although the defendant was self-reporting his medication compliance as "good," his treatment team consistently documented his medication compliance as poor.

What is more, while the defendant has at times acknowledged that he is technically responsible for his mother's murder, he continues to shield himself from true responsibility by repeatedly calling it an accident and placing the blame elsewhere. Indeed, when the defendant was initially incarcerated at Rikers, he told treatment providers that his mother had died while he was incarcerated and that her death was causing strain in his relationship with his girlfriend. Then, in 2013 while a patient at UMMC, the defendant was observed to be lacking in remorse when discussing the murder, instead focusing on how he could best move on with his life. Later, when the defendant was examined by Dr. Belfi in connection with the instant hearing, the defendant told him that the murder was a long time ago and merely a function of fight or flight. Moreover, the defendant told Dr. Belfi that the murder was a result of the seizure preventing medication Keppra, that was known to cause aggression. Then, when examined by Dr. Katsamanis, the defendant told her that the instant case was merely something that had happened to him. To be sure, the defendant simply does not comprehend that his actions — the unrelenting polyamorous drug abuse, severe sleep deprivation, abuse of prescription ADHD medication, and failure to take anti-seizure medication as prescribed — set off the chain of calamitous events that culminated with him beating his mother to death.

Finally, while some six years have passed since the defendant murdered his mother, the passage of time has done naught to erase the heinous and brutal beating Karyn Kay suffered at the hands and feet of her son. The recording of Karyn's 911 call provides a bloody window into a brutal murder that took place in the family home behind closed doors. Indeed, that 911 call, disturbing and raw, speaks volumes about the defendant's crime.

Based on the foregoing — the defendant's remarkable lack of insight into his mental illness and epilepsy, his unrelenting polyamorous substance abuse and the attendant risk of an overdose, his lack of motivation in attaining and maintaining sobriety, his history of self-harm and suicidal ideations, his lifelong preoccupation with violence, his default responses of anger and aggression, the pressing need for medication to prevent future violence, his utter lack of compliance with those medications, his refusal to accept responsibility for his actions, and the barbarous nature of the murder — the People have proven by a fair preponderance of the credible evidence that the defendant is dangerous, and, more specifically, suffers from a Dangerous Mental Disorder. Indeed, every occasion of failing to appreciate the seriousness of his mental illnesses and epilepsy, every cancelled therapy session, every missed AA or NA meeting, every ingestion of an illicit substance, every suicidal ideation, every missed dose of seizure preventing medication, every occasion of failing to accept responsibility for his crime, brings the defendant one step closer to a second lightning strike.

Nevertheless, the defendant contends that he is a very different person who has made enormous progress from the time that he was first incarcerated for the murder of his mother. In support of his contention, the defendant notes that he has not had a seizure since he was taken off Keppra, "the wrong medication," and that he "is in the process of overcoming his history of substance abuse," his "primary issue." See Defendant's Post-Closing Memorandum. While the defendant would prefer to wrap up his crime with a big, red, Keppra bow, that conclusion simply does not bear scrutiny. To be sure, none of the witnesses concluded that Keppra, even with the known side effect of irritability, caused the defendant to kill his mother. What is more, the copious records generated by staff members at the defendant's treatment facilities, paint the picture not of a defendant in the process of recovering from addiction, but of a defendant who, instead of making the most of his private hospital setting get out of jail free cards, utterly failed to avail himself of the programming that he so desperately needs. Not only did the defendant squander those opportunities, but, after thirteen months of inpatient substance abuse treatment and intermittent AA and NA meetings, he repeatedly smuggled drugs into a secure facility and then lied about it. Quite simply, the defendant, given the opportunity to flourish in the equivalent of track two settings, failed miserably.

Conclusion

The People have proven by a fair preponderance of the credible evidence that the defendant has a Dangerous Mental Disorder and that his continued confinement in a secure psychiatric facility is imperative to prevent a second, no less tragic end.

This constitutes the Decision and Order of this Court.