Opinion
Argued October 16, 2000.
December 27, 2000.
In a proceeding pursuant to CPL 330.20(9) for a subsequent retention order, David B. appeals, by permission, from an order of the Supreme Court, Kings County (Cutrona, J.), dated May 17, 1999, which granted the petition and authorized the continued custody of the appellant by the Commissioner of the New York State Office of Mental Health for a period of up to two years from the expiration of the last-issued subsequent retention order.
Mental Hygiene Legal Service, Mineola, N.Y. (Dennis B. Feld and Valdi Licul of counsel), for appellant.
Eliot Spitzer, Attorney-General, New York, N.Y. (Michael S. Belohlavek and Edward J. Curtis, Jr., of counsel), for respondent Commissioner of the New York State Office of Mental Health.
Robert M. Morgenthau, District Attorney, New York, N.Y. (Morrie I. Kleinbart of counsel), respondent pro se.
Before: THOMAS R. SULLIVAN, J.P., SONDRA MILLER, MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, JJ.
DECISION ORDER
ORDERED that the order is affirmed, without costs or disbursements.
Contrary to the appellant's contentions, the Supreme Court properly granted the petition and issued a subsequent retention order. The evidence established that the appellant suffered from a "mental illness" as defined by CPL 330.20(1)(c)(i), which necessitates his continued care, treatment, and rehabilitation in a nonsecure facility (see, Mental Hygiene Law § 1.03; Matter of Richard S., 278 A.D.2d 496 [decided herewith]). Under the circumstances of this case, continued retention in a nonsecure facility is the appropriate dispositional alternative (see, People ex rel. Schreiner v. Tekben, 160 Misc.2d 724, affd 219 A.D.2d 609; Mental Hygiene Legal Servs. ex rel. Cruz v. Wack, 148 A.D.2d 341, affd 75 N.Y.2d 751). The case of Foucha v. Lousiana ( 504 U.S. 71) does not compel a contrary result as the petitioner therein was neither mentally ill nor dangerous, while the petitioner herein continues to suffer from a mental illness (see, Matter of Mental Hygiene Legal Servs. ex rel. James U. v. Rhodes, 195 A.D.2d 160).