Opinion
SMZ No. 70726/24
05-07-2024
The People of the State of New York v. K.W., Defendant, Office of Mental Health, Non-Party, Respondent.
Defense Counsel: Jennifer Hose Staff Attorney, The Legal Aid Society Non-Party Respondent: Letitia James, New York State Attorney General Caroline P. Wallitt, Assistant Attorney General
Defense Counsel: Jennifer Hose Staff Attorney, The Legal Aid Society
Non-Party Respondent: Letitia James, New York State Attorney General Caroline P. Wallitt, Assistant Attorney General
Laura A. Ward, Acting Justice
K.W. ("defendant") moved for an order holding the Office of Mental Health ("OMH") in civil and criminal contempt, pursuant to Judiciary Law §§ 750 and 753, based on OMH's failure to timely transfer defendant to an OMH facility, in accordance with this court's commitment order. For the reasons set forth below, the defendant's motion is denied.
Relevant Facts and Procedural Posture
A New York County grand jury indicted defendant for Attempted Assault in the First Degree (Penal Law § 110/120.10[1]). On September 20, 2023, this court ordered a competency examination pursuant to Criminal Procedure Law ("CPL") § 730. After being evaluated, defendant was found unfit. On October 12, 2023, this court issued an order committing defendant to the custody of OMH "for care and treatment in an appropriate institution to be designated by" OMH. That order further directed the New York City Department of Corrections ("DOC") to deliver defendant to the designated institution "forthwith."
On October 12, 2023, OMH designated Mid-Hudson as the facility to receive defendant (Defendant Exhibits B, C). On October 31, 2023, defense counsel emailed Jeffrey Paloski of OMH to inquire about defendant's designation and estimated transfer date. Paloski replied that defendant was "promptly designated" (Defendant Exhibit D).
On December 7, 2023, counsel for DOC advised that defendant's transfer was "pending a female bed" (Defendant Exhibit C).
On February 20, 2024, defendant filed an order to show cause, pursuant to CPL § 730.60 and Judiciary Law §§ 753 and 750, as to why OMH should not be held in contempt. On March 5, 2024, OMH filed an affirmation and memorandum of law in opposition, and this court held oral argument. On March 25, 2024, defendant filed a reply, and on April 2, 2024, OMH filed a sur-reply.
Legal Arguments and Analysis
To sustain a motion for civil contempt, the moving party must show, by clear and convincing evidence, that a lawful judicial order "expressing an unequivocal mandate" was in effect; that the order was disobeyed; that the party to be held in contempt had knowledge of the court's order; and that the right of a party to the litigation was prejudiced. Gregg v. Lan Zhen Chen, 220 A.D.3d 695, 696 (2d Dep't 2023); see McCain v. Dinkins, 54 N.Y.2d 216, 225-26 (1994). To establish criminal contempt, however, a higher degree of willfulness by the alleged contemnor is required. McCain, 54 N.Y.2d at 226 ("the element which escalates a contempt to criminal status is the level of willfulness associated with the conduct"). Knowingly failing to comply with a court order gives rise to an inference of willfulness, which may be rebutted with "evidence of good cause for noncompliance." Matter of Figueroa-Rolon v. Torres, 121 A.D.3d 684 (2d Dep't 2014) (citations and quotations omitted).
The defendant initially sought to hold OMH in civil contempt. In her reply papers, however, the defendant withdraws that request, concluding that the defendant's intervening transfer rendered the request for civil contempt moot (Defendant's Reply at 2). Accordingly, the only issue before this court is whether OMH should be held in criminal contempt.
This court disagrees with the defendant's conclusion that the issue is moot. Nevertheless, this court may not, on its own initiative, hold OMH in civil contempt. In re Lieberman, 238 A.D. 305, 307 (1st Dep't 1933) (civil contempt proceeding "may be prosecuted by the aggrieved party only"); Freihofner v. Freihofner, 8 Misc.3d 1020 (A), *14 (Sup. Ct. Westchester Co. 2005) (discussing meaning of "aggrieved party" and noting that relief under civil contempt statute is "requested by motion"); see generally People ex rel. Stearns v. Marr, 181 NY 463, 471 (1905) ("The primary object of [civil contempt] is to protect private rights and of [criminal contempt] to maintain the dignity of the court and vindicate the authority of law.").
In support of her request for criminal contempt sanctions, the defendant urges this court to conclude that OMH's violation of the commitment order was willful, arguing that OMH admitted to "a policy and practice of delaying admission of unfit individuals" (Defendant's Reply at 6). The defendant also highlights OMH's failure to take "corrective steps," such as financing initiatives or development of outpatient services, in the face of steadily increasing need for competency-restoration services (Defendant's Reply at 7).
In opposition, OMH notes that its delay in accepting patients for treatment is due to lack of space in secure facilities, caused in part by a consistent increase in patients in need of restoration services. OMH also contends that it has taken steps to ameliorate the problem, citing the recent opening of a unit for 25 patients at Manhattan Psychiatric Center, as well as its plan to "soon" commence construction to expand Mid-Hudson (OMH Sur-Reply at 4-5). OMH also argues that it "regularly evaluates" the possibility of various programs to facilitate competency restoration, but urges that each potential solution is accompanied by its "own set of challenges," including staffing, exclusion from Medicare and Medicaid programming, the cooperation of third parties, and the procurement of "substantial funds" through the budgetary process (OMH Sur-Reply at 5-6; Sur-Reply Affidavit at ¶¶ 6-10).
Initially, this court's commitment order expressed a "clear and unequivocal" mandate to transfer the defendant "forthwith." Obadiah v. Shaw, 266 A.D.2d 520, 521 (2d Dep't 1999) ("[t]o prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party so charged violated a clear and unequivocal court order"). It is well settled that "forthwith" means "without delay." Ayers v. Coughlin, 72 N.Y.2d 346, 353 (1988) ("forthwith" means "without delay, at once, promptly" and "signals immediacy").
OMH contends that there is no "court-ordered deadline" and suggests that "forthwith" is subjective, to be defined in relation to the "circumstances" confronting OMH (OMH Opposition at 4). However, the Court of Appeals has already rejected very similar arguments. Indeed, in Ayers, the Court of Appeals rejected the Department of Corrections' contention that overcrowding in state correctional facilities permitted the agency to delay acceptance of inmates, despite orders requiring that those individuals be transferred "forthwith." Ayers, 72 N.Y.2d at 353. The Ayers court determined that, although allowing some flexibility "for exigent circumstances in particular cases," transfers to be completed "forthwith" should occur within 10 days. Id. In light of Ayers, it simply cannot be said that transfers occurring only after months-long waits occur "forthwith."
Next, there can be no question that OMH was aware of the commitment order. Indeed, OMH designated Mid-Hudson on the same date that the commitment order issued (Defendant Exhibits B, C).
Nevertheless, this court cannot conclude that OMH's violation of the commitment order was willful. Of course, OMH's non-compliance with the order to transfer defendant "forthwith" was knowing. And, as defendant points out, this non-compliance has been part of a pattern, whereby those in need of competency restoration have waited in Rikers for months on end. Although OMH has offered little evidence of the steps it has taken to ameliorate the problem, its papers have nevertheless established good cause for its noncompliance-namely, the significant obstacles outside of OMH's control. Cf. Dep't of Envtl. Protection of City of NY v. Dep't of Envtl. Conservation of NY, 70 N.Y.2d 233, 239, 242 (1987) (upholding order holding entity in criminal contempt where it continued to burn coal in violation of court order, and where it had claimed authority to do so on "calculated misinterpretation of the subject order").
To be sure, that this court has not found that OMH willfully disobeyed its order "does not absolve OMH of its responsibility to sound alarm bells and demand assistance to rectify the problem." People v. L.G., 2024 NY Misc. LEXIS 1564, *20-21 (Sup. Ct. NY Co. March 29, 2024) (Newbauer, J.). Nevertheless, this court also recognizes that the problem, to a certain extent, lies beyond the powers of OMH. A problem of this scale and complexity cries out for legislative change and substantial funding. Otherwise, individuals like the defendant will continue to suffer without the psychiatric care that they need-to their own detriment, and to society's.
The foregoing is the decision and order of the court.