Opinion
99-CV-1351(LEK/GLS).
March 10, 2000
MENTAL HYGIENE LEGAL SERVICE, Third Judicial Department, Capital Station Annex, OF COUNSEL, Sheila E. Shea, Esq., Albany, New York, FOR THE PETITIONER.
HON. ELIOT SPITZER, Attorney General of the State of New York Department of Law, Albany, New York, Lisa Ullman, Esq., Asst. Attorney General, FOR THE RESPONDENT.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by the Hon. Lawrence E. Kahn, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed a habeas corpus petition and memorandum of law on August 26, 1999. Magistrate Judge Hurd issued an Order pursuant to the rules governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, ordering service of the petition on respondent and requiring service of an answer or other pleading by respondent. (Dkt. No. 4). Respondent filed an answer, together with the pertinent state court records and a memorandum of law.
This case was reassigned to the undersigned on October 21, 1999.
The state court records submitted by respondent are annexed to the answer as Ex. A-P. (Dkt. No. 9).
FACTS AND PROCEDURAL HISTORY
In 1984, petitioner was charged in connection with the shooting death of his uncle. In 1986, petitioner entered a plea of not responsible by reason of mental disease or defect. A hearing was held pursuant to New York Criminal Procedure Law [hereinafter C.P.L.] § 330.20(6), after which the Schenectady County Court found that petitioner suffered from a "dangerous mental disorder" as defined in C.P.L. § 330.20(1)(c). Classified as a "track one" acquittee, petitioner was remanded to the custody of the New York State Commissioner of Mental Health for confinement in a secure facility for six months. See Ex. A (Amended Order, (Moynihan, J.), dated April 14, 1987).
Petitioner was charged with murder in the Second Degree, manslaughter in the First Degree and criminal use of a firearm in the First Degree. See Matter of Michael "RR", 233 A.D.2d 30, 31, 663 N.Y.S.2d 317, 318 (3rd Dep't 1997).
This section provides as follows:
6. Initial hearing; commitment order.
After the examination reports are submitted, the court must, within ten days of the receipt of such reports, conduct an initial hearing to determine the defendant's present mental condition. [. . .] At such initial hearing, the district attorney must establish to the satisfaction of the court that the defendant has a dangerous mental disorder or is mentally ill. If the court finds that the defendant has a dangerous mental disorder, it must issue a commitment order. If the court finds that the defendant does not have a dangerous mental disorder but is mentally ill, the provisions of subdivision seven of this section shall apply.
Pursuant to C.P.L. § 330.20(1)(c), "`dangerous mental disorder' means: (i) that a defendant currently suffers from a `mental illness' as that term is defined in subdivision twenty of section 1.03 of the mental hygiene law, and (ii) that because of such condition he currently constitutes a physical danger to himself or others."
C.P.L. § 330.20 establishes a "three-track" system for post-verdict treatment of insanity acquittees. If the court finds that the acquittee has a "dangerous mental disorder, he is classified as "track one." See C.P.L. § 330.20(6). If the court finds that the acquittee is mentally ill, but does not suffer from a "dangerous mental disorder," he is classified as "track two." If the court finds that the acquittee does not suffer from a dangerous mental disorder and is not mentally ill, he is classified as "track three." See C.P.L. § 330.20(7). Track one acquittees are initially confined in a secure facility for six months pursuant to a commitment order. C.P.L. § 330.20(6). Once a judicial determination is made that the acquittee no longer has a "dangerous mental disorder," he must be transferred to a non-secure facility. C.P.L. § 330.20(11). An acquittee is retained in the non-secure facility pursuant to a retention order. A track one acquittee may be returned to a secure facility upon a re-commitment order issued after a determination is made that the acquittee has a "dangerous mental disorder." C.P.L. § 330.20(14).
In 1989, a judicial determination was made that petitioner continued to suffer from mental illness but no longer suffered from a "dangerous mental disorder." See Ex. B (Second Retention Order, dated January 3, 1989, Orange County Court, [Byrne, J.]). Pursuant to CPL § 330.20(11), petitioner was transferred to the Capital District Psychiatric Center ("CDPC"), a non-secure facility. Upon application by CDPC, the Albany County Supreme Court issued a series of retention orders authorizing petitioner's continued retention at CDPC.
After a hearing on September 19, 1996, the Albany County Supreme Court granted CDPC's request for a subsequent retention order pursuant to C.P.L § 330.20(9), extending petitioner's involuntary retention for a period not to exceed one year. See Ex. C (Retention Order dated September 19, 1996 [Keegan, J.]). Pursuant to C.P.L. § 330.20(16) and Mental Hygiene Law § 9.35, petitioner requested a de novo jury trial as to the propriety of his continued retention. See Ex. D (pet. for reh'g with jury trial).
New York CPL § 330.20(9) addresses second and subsequent retention orders. If the court finds that the defendant is mentally ill but does not have a "dangerous mental disorder," it must issue a second retention order and, pursuant to C.P.L. § 330.10(11), a transfer order and an order of conditions. If the court finds that the defendant does not have a dangerous mental disorder and is not mentally ill, it must issue a release order and an order of conditions pursuant to C.P.L. § 330.20(12). The procedures set forth in this subdivision also govern the application for and the issuance of any subsequent retention orders.
At the trial, the court instructed the jurors that the Commissioner was required to prove all three elements of the commitment standard by "clear and convincing" evidence. The jury found that petitioner suffered from a mental illness, but that the Commissioner had not proved the necessity of continued inpatient treatment by clear and convincing evidence. See Ex. F (Jury verdict sheet). A verdict was entered directing petitioner's release from CDPC. See Ex. G (Judgment dated November 1, 1996 [Harris, J.]).
The Court instructed the jurors that they could authorize petitioner's continued retention if they found that CDPC proved by clear and convincing evidence that: 1) petitioner suffered from a mental illness; 2) continued inpatient care and treatment was essential to petitioner's welfare, in that such care and treatment is necessary due to a real risk of substantial harm to the well being of petitioner or others; and, 3) petitioner's judgment was so impaired that he did not understand the need for continued inpatient care and treatment. See Ex. E (Trial Tr. of Jury Charge, dated October 30, 1996, at pp. 16-18).
On appeal by CDPC, the Appellate Division, Third Dep't, overturned petitioner's release. The Appellate Division concluded that the Court had misinstructed the jurors as to the Commissioner's burden of proof and held that the correct standard is a "fair preponderance of the credible evidence." Matter of Michael "RR", 233 A.D.2d at 32, 663 N.Y.S.2d at 319. The Court of Appeals dismissed petitioner's motion for leave to appeal on the grounds that the Third Department's decision did not constitute a final, appealable order. Matter of Michael "RR", 91 N.Y.2d 921, 692 N.E.2d 132, 669 N.Y.S.2d 263 (1998).
A new jury trial was held on February 5 and 6, 1998, in Albany County Supreme Court, at which time the jurors were instructed that the Commissioner's burden of proof was a preponderance of the evidence. A verdict of commitment was returned in favor of the Commissioner. See Ex. K (Judgment and Order dated February 13, 1998, authorizing petitioner's continued retention from September 21, 1996, to September 21, 1997), and Ex. L (Judgment and Order dated February 13, 1998, authorizing petitioner's continued retention from September 21, 1997, to September 21, 1999).
While the appeal was pending, the retention period covered by the application had expired and CDPC submitted an application for petitioner's retention for at least one year, beginning on September 21, 1997. The jury trial was consolidated with this pending retention application. See Pet'r's Mem., at p. 6.
Petitioner's motion seeking leave to appeal to the Appellate Division was denied by that Court on April 24, 1998. On August 27, 1998, the New York Court of Appeals dismissed petitioner's request for leave to appeal on the grounds that an appeal "does not lie" from such order. Matter of Michael "RR", 92 N.Y.2d 886, 700 N.E.2d 1223, 678 N.Y.S.2d 587 (1998). Petitioner remains confined at CDPC.
On March 24, 1998, petitioner requested a re-hearing with respect to the retention order. See Ex. O. On August 3, 1999, CDPC submitted an application seeking a subsequent retention of petitioner for two years beginning on September 21, 1999. See Ex. P. Petitioner's attorneys have adjourned both the rehearing and the subsequent retention application from the Supreme Court mental hygiene calendar. See Resp't Mem. of Law, at p. 5.
Petitioner raises one issue in his habeas corpus petition. Petitioner argues that after a judicial determination is made, an insanity acquittee no longer has a "dangerous mental disorder" (as defined in C.P.L. § 330.20(1)(c)), the federal due process clause requires the commitment standard to be proven by clear and convincing evidence in subsequent retention proceedings held pursuant to New York Criminal Procedure Law § 330.20(9). Respondent argues that the burden of proof was correctly applied in this case.
For the following reasons, this court agrees with respondent and recommends that the petition be dismissed.
1. Constitutionality of the Preponderance of the Evidence Standard at Subsequent Retention Proceedings for Insanity Acquittees
In seeking to obtain a second or subsequent retention order, the Commissioner must prove "to the satisfaction of the court" that the insanity acquittee is "mentally ill" or has a "dangerous mental disorder." C.P.L. § 330.20(9). Although the statute is silent as to the Commissioner's burden of proof, the Appellate Division, Third Dep't, concluded that a preponderance of the credible evidence is "inescapably" the applicable standard of proof. Matter of Michael RR, 233 A.D.2d at 32, 663 N.Y.S.2d at 319.
The Appellate Division relied on the Court of Appeals' decision in People v. Escobar, 61 N.Y.2d 431, 462 N.E.2d 1171, 474 N.Y.S.2d 453 (1984). In Escobar, the state challenged the requirement that they satisfy the clear and convincing evidence standard at an insanity acquittee's initial and first retention hearings held pursuant to C.P.L. § 330.20(6) and (8). The Court of Appeals held that it is constitutionally permissible to justify an insanity acquittee's continued confinement based upon the state's proof of mental defect by a preponderance of the evidence. Id. at 440, 474 N YS.2d at 457.
Petitioner does not contest the constitutionality of a preponderance of the evidence standard at the initial hearing following an insanity acquittal, and concedes that "a presumption of continuing dangerousness to others may be permissibly drawn by virtue of the defendant's acquittal of a crime by reason of mental disease or defect." See Pet'r Mem. of Law, at p. 10 (citing Jones v. United States, 463 U.S. 354, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983); Escobar, 61 N.Y.2d at 440 (see fnt. 11). However, petitioner argues that the "presumption of dangerousness" is rebutted once the court determines that he no longer suffers from a "dangerous mental disorder" as defined in CPL § 330.20(1)(c). Thus, petitioner submits that the federal due process clause requires that, in all subsequent retention proceedings, the Commissioner be held to the same burden of proof as is required in civil commitment proceedings, i.e. clear and convincing evidence. This court does not agree.
In Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), the Supreme Court held that the Due Process Clause precludes involuntary civil commitment of individuals to a mental institution, unless the state establishes by clear and convincing evidence, that the individual sought to be committed is both mentally ill and requires hospitalization for his own welfare and the protection of others. Id. at 426-427, 99 S.Ct. at 1809-1810. Addington has not, however, been extended to commitment proceedings involving insanity acquittees.
Delineating "important differences between the class of potential civil-commitment candidates and the class of insanity acquittees that justify differing standards of proof," the Supreme Court held in Jones, that an insanity acquittee may be committed upon the State's proof of present mental illness and dangerousness by the less stringent preponderance of the evidence standard. Jones, 463 U.S. at 368, 103 S.Ct. at 3051.
The Court reasoned that a verdict of not guilty by reason of insanity "establishes two facts: (i) the defendant committed an act that constitutes a criminal offense; and (ii) he committed the act because of mental illness." Jones, 463 U.S. at 364, 103 S.Ct. at 3049. The Court was satisfied that the fact that the acquittee committed a criminal act as a result of mental illness "eliminates the risk that he is being committed for mere `idiosyncratic behavior." Id. (quoting Addington, 441 U.S. at 427, 99 S.Ct. at 1810). The Court also distinguished the two groups on the grounds that an acquittee himself advances insanity as a defense, and proves that the criminal act was a product of his mental illness. Id. at 367, 103 S.Ct. 3051.
In Jones, the Supreme Court upheld the constitutionality of a District of Columbia statute that required an insanity acquittee to establish by a preponderance of the credible evidence that he had regained his sanity, even if he had been hospitalized for a period longer than he might have served in prison had he been convicted.
In a case that pre-dates Jones, the Second Circuit reached the same conclusion and upheld the constitutionality of a Connecticut statute that required the state to prove by a preponderance of the evidence that an insanity acquittee is mentally ill to the extent that his release would constitute a danger to himself or others. Warren v. Harvey, 632 F.2d 925 (2d Cir. 1980). The Second Circuit also found that significant differences between the two groups justified a lesser standard of proof for commitment and retention of insanity acquittees.
The court considered that a person wrongfully committed in a civil proceeding suffers great harm because he is wrongfully deprived of liberty when he poses no danger to society. Furthermore, such person is "greatly stigmatized." In justifying a lesser burden of proof for insanity acquittees, the Court reasoned as follows:
The same considerations do not come into play when the person facing commitment is an insanity acquittee. He need not be overly protected against the possibility that the factfinder will commit him based on "a few isolated instances of unusual conduct." The insanity acquittee already has been found to have committed a criminal act. Furthermore, if an insanity acquittee is committed because of an erroneous determination that he is mentally ill, then the odds are high that he may have been found not guilty on insanity grounds because of a similar erroneous determination that he is not sane. While the acquittee therefore may be deprived erroneously of his liberty in the commitment process, the liberty he loses is likely to be liberty which society mistakenly had permitted him to retain in the criminal process. Concomitantly, while society derives no benefit from erroneously confining ordinary persons who are not, in fact, mentally ill and dangerous, the erroneous confinement of an insanity acquittee who, in fact, was not mentally ill at the time of his crime indirectly benefits society by keeping a "sane" criminal off the streets.
Next to the actual deprivation of liberty, the greatest harm to a person erroneously committed to a mental institution is the stigma attached to the commitment. Addington, 441 U.S. at 426, 99 S.Ct. at 1809. The harm that such stigma causes an individual provides another cogent reason for "weighting" the standard of proof scales in favor of the ordinary individual faced with civil commitment. It is hard to view the insanity acquittee with the same solicitude. He already has been found to have committed an unlawful act with all the attendant stigmatization and has escaped punishment solely because he convinced the factfinder in the criminal proceeding that there was merit to his claim of insanity. Any stigma resulting from the label "mentally ill and dangerous" certainly attached at the time the accused was found not guilty by reason of insanity. Additional stigma which might result from subsequent commitment to a mental hospital must be regarded as minimal, if any.
Finally, we cannot ignore the danger of "calculated abuse of the insanity defense". (citation omitted). We are reluctant to provide criminal defendants with a loophole at society's expense by enabling those who have committed criminal acts first to escape criminal punishment by pleading insanity and then to escape confinement completely if the government fails to prove by clear and convincing evidence that the defendant will continue to be prone to the very same abnormalities that he sought to establish in his past behavior.
Warren, 632 F.2d at 932.
Petitioner maintains that the case law upholding the constitutionality of differential treatment for insanity acquittees is applicable only to initial commitment proceedings. According to petitioner, there is no longer a constitutionally adequate purpose for a less stringent burden of proof once a judicial determination is made that he no longer has a "dangerous mental disorder."
Petitioner argues that the New York Court of Appeal's holding in People v. Escobar is limited to the initial commitment and retention hearings because the Court held that "the preponderance of the evidence standard, and not that requiring clear and convincing evidence, should have been applied at both the initial commitment and first retention hearings." Escobar, 61 N.Y.2d at 429, 474 N.Y.S.2d at 457. However, in Escobar, the acquittee had only had an initial commitment and first retention hearing. Moreover, the Court stated that the central issue was "the appropriate burden of proof which the District Attorney must satisfy before an insanity acquittee [. . .] can be determined to be either mentally ill or suffering from a dangerous mental disorder so that continued confinement in the custody of the commissioner is justified. Id., at 438, 474 N.Y.S.2d at 456 (emphasis added). The Court held that:
[t]he New York statute, which places the burden of proof upon the District Attorney, rather than the defendant, to show that an insanity acquittee is either mentally ill or has a dangerous mental disorder, provides greater due process protection than is required under the Federal Constitution (footnote omitted). It necessarily follows that in view of the placement of the burden of proof upon the District Attorney, it is constitutionally permissible to only require the District Attorney to prove the defendant's mental defect by a preponderance of the evidence rather than by the more demanding clear and convincing standard.
Id., at 439-440, 474 N.Y.S.2d at 457.
A comparable argument was rejected by the court in Francis S. v. Stone, 995 F. Supp. 368 (S.D.N.Y. 1998). The insanity acquittee in Francis S. challenged the use of the preponderance of the evidence standard at a re-commitment hearing. The acquittee argued that his release from in-patient care on an order of conditions constituted a determination that he was no longer dangerous to himself or others, and as such, the Commissioner was required to satisfy the standard applicable for civil commitment. Id. at 377, 382. Both petitioner in this case and the acquittee in Francis S. argue that the Supreme Court's decision in Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), supports this position. See Pet. at p. 13. This court does not agree and concurs with the reasoning set forth by the court in Francis S.
As in the case presently before this court, the petitioner in Francis S. had been transferred to a non-secure facility after a judicial determination was made that he was mentally ill, but did not suffer from a "dangerous mental disorder." However, in Francis S., the acquittee was discharged to outpatient care on an Order of conditions when the commitment order expired. Id. at 374. The Commissioner sought to re-commit petitioner after he had violated the order of conditions.
In Foucha, the Supreme Court reviewed the constitutionality of a Louisiana statute that permitted continued confinement of an insanity acquittee until the acquittee proved that he is not dangerous, even after a determination that the acquittee was no longer mentally ill. Foucha, 504 U.S. at 73, 112 S.Ct. at 1781-1782. The Court struck down the statute, finding that once the acquittee regained his sanity, the "basis for holding [the acquittee] in a psychiatric facility as an insanity acquittee has disappeared, and the State is no longer entitled to hold him on that basis." Id. at 78, 112 S.Ct. at 1784. The Court concluded that further confinement would be constitutionally permissible "only if the State prevails in a proceeding subject to the Addington rule." Francis S., 995 F. Supp. at 383 (citing Foucha v. Louisiana, 504 U.S. at 78-80, 112 S.Ct. at 1784-1786).
A significant distinction between Foucha and the case presently before this court is that in Foucha, a determination had been made that the acquittee no longer suffered from a mental disease or illness. Foucha, 504 U.S. at 78, 112 S.Ct. at 1784. The Supreme Court held that a sane acquittee could not be denied procedural safeguards against unwarranted confinement. Id. at 86, 112 S.Ct. at 1789. In this case, the petitioner continues to suffer from mental illness. Thus, the basis for confining him as an insanity acquittee has not "disappeared." See Francis S., 995 F. Supp. at 383 (citing Hartman v. Summers, 878 F. Supp. 1335, 1442 (C.D.Cal. 1995) (finding that Foucha does not hold `that the Constitution requires the state to carry the burden of proof by clear and convincing evidence in situations where the insanity acquittee remains mentally ill.'") (other citations omitted).
In her concurring opinion, Justice O'Connor wrote separately, to emphasize that the Court's opinion addresses only the specific statutory scheme before us, which broadly permits indefinite confinement of sane insanity acquittees in psychiatric facilities. This case does not require us to pass judgment on more narrowly drawn laws that provide for detention of insanity acquittees, or on statutes that provide for punishment of persons who commit crimes while mentally ill. Id. at 86-87, 112 S.Ct. 1789 (emphasis added).
The Supreme Court has clearly held that a "committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous." Foucha, 504 U.S. at 77, 112 S.Ct. at 1784 (quoting Jones, 463 U.S. at 368, 103 S.Ct. at 3052). However, pursuant to CPL § 330.20(1)(c), a finding that an acquittee does not suffer from a "dangerous mental disorder" means that the acquittee does not "currently constitute a physical danger to himself or others" as a result of his mental illness. As such, he is entitled to be transferred to a non-secure psychiatric facility. This adjudication does not resolve the question of potential "dangerousness" if released from inpatient care. The State can still confine an acquittee if it proves that continued inpatient treatment is essential to the acquittee's welfare, due to a real and present threat of substantial physical harm to himself and others if released.
The court defined the phrase "essential to [petitioner's] welfare" as follows: care and treatment is necessary due to a real and present threat of substantial physical harm to himself and others. Such a risk can result in [petitioner's] lack of ability to control his behavior or his inability to provide for his essential needs, food, clothing or shelter. The threat of dangerousness may, but need not involve violent, aggressive or criminal behavior or ideation. Ex. E (transcript) at p. 12. See also, Ex. F (jury verdict sheet) at .3. Such instruction comports with New York case law, which imposes an additional due process required element in determining whether inpatient care and treatment in a hospital is essential to a person's welfare.
The patient must continue to pose "a substantial threat of physical harm to himself or others;" such harm could result from, e.g., the patient's failure to meet essential needs for food, clothing or shelter, or to perform the commonly understood activities of daily living. Matter of Harry M., 96 A.D.2d 201, 208, 468 N.Y.S.2d 359 (1983); see Matter of Boggs, 132 A.D.2d 340, 523 N.Y.S.2d 71, app. dismissed, 70 N.Y.2d 972, 525 N.Y.S.2d 796, 520 N.E.2d 515; Project Release v. Provost, 722 F.2d 960 (2d Cir. 1983). This kind of "dangerousness" need not involve violent, aggressive or criminal behavior or ideation; it would not necessarily constitute the current physical dangerousness which is an element of a dangerous mental disorder under the C.P.L. Cf. Matter of George L., 85 N.Y.2d 295, 648 N.E.2d 475. 624 N.Y.S.2d 99 (1995).
Matter of Robert C. v. Wack, 167 Misc.2d 677, 680, 635 N.Y.S.2d 426, 428 (N.Y.S.Ct. 1995).
For example, in Warren, the acquittee's symptoms were controlled by anti-psychotic medication. Thus, he was not a danger to himself or others in the structured environment of the mental institution. At his release hearings, the State presented evidence that the acquittee had murdered someone while psychotic, and that lack of a controlled environment after release could induce him not to take his medication, again leaving him psychotic and dangerous. The Second Circuit held that the State had sustained its burden of proving by a preponderance of the evidence that the acquittee, if released, would constitute a danger to himself and others. Warren, 632 F.2d at 933. "While the insanity acquittal did not constitute dispositive proof of present dangerousness, it was substantial evidence that appellant remained a danger to society." Id. at 934 (citations omitted).
In Francis S., the court also noted that an acquittee may be found not to suffer from a "dangerous mental disorder" because he is currently medicated in an institutional setting. The court commented that Foucha says "nothing about the treatment of an acquittee who remains mentally ill throughout, but ceases for a period of time to be dangerous. Francis S., 995 F. Supp. at 368. Thus, an adjudication that an acquittee does not suffer from a dangerous mental disorder under C.P.L. § 330.20(1)(c) does not rebut the "presumption of dangerousness."
This court finds that the reasoning set forth in prior cases upholding the constitutionality of the preponderance of the evidence standard for commitment of insanity acquittees is applicable to subsequent retention proceedings, even after an acquittee's classification pursuant to CPL § 330.20(1)(c) has changed. As such, the preponderance of the evidence standard at second and subsequent retention proceedings comports with the requirements of due process of law.
Moreover, such determination comports with the Legislature's intent that an acquittee's initial classification govern future retention proceedings. If, at the initial hearing, an acquittee is found to be mentally ill but not suffering from a dangerous mental disorder, the statute provides that "further retention, conditional release or discharge of such defendant shall be in accordance with the provisions of the mental hygiene law." See C.P.L. § 330.20(7). Since petitioner was found to have a dangerous mental disorder at the initial hearing, the legislature intended for C.P.L. § 330.20, and not the Mental Hygiene Law, to govern future retention proceedings. See Matter of Michael RR, 233 A.D.2d at 33-34, n. 2-3, 633 N.Y.S.2d at 320, n. 2-3 (citing Matter of George L. 85 N.Y.2d 295, 302, n. 2, 624 N.Y.S.2d 99, 192, n. 2, 648 N.E.2d 475, 478 (1995) and Mem of N.Y. Law Revision Commn., 1981 McKinney's Session Laws of N Y at 2277; Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL. 330.20, at 24).
Based on the foregoing, this court recommends that the instant petition for habeas corpus relief be dismissed.
WHEREFORE, based on the findings in the above Report-Recommendation, it is
RECOMMENDED that the petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have TEN (10) DAYS within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e). It is
ORDERED, that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings. He has agreed to make them available for any appellate review. It is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.