                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 16, 2014                    519055
________________________________

In the Matter of ARTO ZZ.

COMMISSIONER OF THE NEW YORK
   STATE OFFICE FOR PEOPLE WITH
   DEVELOPMENTAL DISABILITIES,
                    Respondent;
                                             MEMORANDUM AND ORDER
ARTO ZZ.,
                     Respondent,
     and

NEW YORK COUNTY DISTRICT
   ATTORNEY,
                    Appellant.
________________________________


Calendar Date:   September 10, 2014

Before:    Lahtinen, J.P., McCarthy, Rose, Lynch and Devine, JJ.

                              __________


      Cyrus R. Vance Jr., District Attorney, New York City
(Christine Ante of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Jonathan D.
Hitsous of counsel), for Commissioner of the New York State
Office for People with Developmental Disabilities, respondent.

      Sheila E. Shea, Mental Hygiene Legal Service, Albany
(Charles Bayer of counsel), for Arto ZZ., respondent.

                              __________
                              -2-                519055

McCarthy, J.

      Appeal, by permission, from an order of the Supreme Court
(Feldstein, J.), entered May 28, 2014 in Franklin County, which
granted petitioner's application pursuant to CPL 330.20 to direct
the release of respondent Arto ZZ. from an unsecure psychiatric
facility under certain conditions.

      Respondent Arto ZZ. (hereinafter respondent), who is mildly
developmentally disabled, has been in the custody and care of
petitioner since his 1986 acquittal of a criminal charge by
reason of mental disease or defect (see CPL 330.20). In 2004,
respondent was transferred from a secure to a nonsecure facility
(Matter of Arto ZZ., 24 AD3d 947, 947 [2005], lv denied 6 NY3d
707 [2006]). In 2013, petitioner commenced this proceeding
seeking respondent's release pursuant to an order of conditions,
specifically requesting an order that respondent reside in a
highly supervised intermediate care facility operated by the
Office for People with Developmental Disabilities (hereinafter
OPWDD) and comply with his service plan (see CPL 330.20 [12]).
Respondent New York County District Attorney (hereinafter the DA)
opposed the application. Following the presentation of the DA's
case in opposition, petitioner moved for an order granting
respondent's release. The DA cross-moved for dismissal of
petitioner's application. Supreme Court granted petitioner's
application, releasing respondent pursuant to a restrictive order
of conditions. The DA appeals with this Court's permission (see
CPL 330.20 [21] [a] [iii]).

      Initially, Supreme Court correctly denied the DA's cross
motion. Petitioner's expert psychologist apparently
misunderstood the applicable legal definition, as is evident from
his supporting affidavit. A person does not necessarily meet the
legal definition of "mentally ill" just because he or she falls
within the definition of that phrase that is used by the
scientific or psychiatric community; this can make the law
confusing for medical professionals. Nevertheless, the court
relied on the expert's factual and medical determinations in his
affidavit and annexed report, disregarding that medical expert's
legal conclusions. Considering the appropriate factual
information and accompanying opinion that respondent was suitable
                              -3-                519055

for release with certain conditions, petitioner's application was
legally sufficient (see CPL 330.20 [12], [20]).

      Supreme Court did not err in granting petitioner's
application to release respondent pursuant to an order of
conditions. In reviewing a CPL 330.20 commitment determination,
this Court's authority is as broad as that of the trial court and
we may render any determination warranted by the record, though
we defer to the trial court's factual and credibility findings
(see Matter of Amir F., 94 AD3d 1209, 1212 [2012]; Matter of
Stephen W., 90 AD3d 1166, 1170 [2011]; see also Matter of George
L., 85 NY2d 295, 305 [1995]; Matter of Eric U., 40 AD3d 1148,
1149-1150 [2007], lv denied 9 NY3d 809 [2007]). If the court
finds that a person committed pursuant to CPL 330.20 does not
have a dangerous mental disorder but is mentally ill, that person
must be confined in a nonsecure facility (see CPL 330.20 [12];
Matter of David B., 97 NY2d 267, 276-277 [2002]). If the court
finds that the person is no longer mentally ill, it must release
the person with an order of conditions (see CPL 330.20 [12];
Matter of Allen B. v Sproat, 23 NY3d 364, 370 [2014]). For
purposes of CPL 330.20, a person with a developmental disability
is considered "mentally ill" if he or she "is in need of care and
treatment as a resident in the in-patient services of a
developmental center or other residential facility for the . . .
developmentally disabled under the jurisdiction of [OPWDD]" (CPL
330.20 [1] [d]). The DA had the burden to prove by a
preponderance of the evidence that respondent met the statutory
definition of a "mentally ill" person (see CPL 330.20 [12];
People v Escobar, 61 NY2d 431, 439-440 [1984]).

      Although respondent undeniably was diagnosed with more than
one mental illness, such diagnoses are insufficient to prove that
he was "mentally ill" under the applicable statutory definition
(see CPL 330.20 [1] [d]; Matter of David B., 97 NY2d at 279
[noting that "the statutory language limits the class of retained
mentally ill individuals to those who must have inpatient care
and treatment," among other requirements]). The report and
affidavit of petitioner's expert indicated that respondent had
improved such that he no longer required inpatient care and
instead could function in a supervised intermediate care
facility. The DA's expert disagreed, opining that respondent met
                              -4-                519055

the definition of "mentally ill" because he needed constant
supervision. Supreme Court reasonably discounted that expert's
opinion because, despite his impressive credentials, he generally
worked with mentally ill individuals who did not have
developmental disabilities and he was not sufficiently familiar
with OPWDD facilities and procedures. He also engaged in
baseless speculation about respondent possibly eloping from the
proposed residence and the potential difficulties in locating or
returning him; such speculation cannot support the DA's burden
(see Matter of George L., 85 NY2d at 307-308).1 Contrary to the
expert's testimony, respondent could be deemed no longer mentally
ill even if he had a psychiatric diagnosis and still needed
supervision. "A release order directs [petitioner] to terminate
the defendant's in-patient status without ending his [or her]
responsibility for the defendant" (Matter of Allen B. v Sproat,
23 NY3d at 370; see CPL 330.20 [1] [m]).

      The DA relies heavily on Matter of David B. (97 NY2d at
277) to support his argument for retention of respondent. That
case is not directly on point, as the statute provides a
different definition of "mentally ill" for individuals who have
developmental disabilities in addition to one or more diagnosed
mental disorders (see CPL 330.20 [1] [d]). For those individuals
with developmental disabilities, the statute does not require
that their judgment be so impaired by a mental illness that they
are "unable to understand the need for such care and treatment"
(CPL 330.20 [1] [d]); this makes sense, as such inability could
be related to developmental disabilities as opposed to mental
illness. Even if that additional factor applied here, however,
respondent acknowledged in his testimony that he needed constant


    1
        The DA contends that any of his expert's testimony
concerning the proposed residence was irrelevant because Supreme
Court never should have reached the secondary issue of conditions
of release; according to this argument, the hearing should have
only addressed the primary question of whether respondent needed
to be confined due to his diagnosed mental illness. Contrary to
this argument, the topic of conditions of release was properly
raised at the hearing, and the court could use all of the hearing
testimony to weigh the credibility of the DA's expert.
                              -5-                  519055

supervision, indicating that he understood the need for care and
treatment. While the DA's expert disagreed that respondent had
any such understanding, Supreme Court found respondent credible
and did not rely on that expert's testimony. Thus, even under
the definition of mentally ill that applies to individuals
without developmental disabilities, the DA did not meet his
burden.

      Supreme Court correctly determined that respondent, who
acknowledged that he needed constant supervision, could be
released from inpatient care subject to certain conditions,
including his residence in an intermediate care facility with 24-
hour supervision by OPWDD staff. Inasmuch as the DA failed to
meet his burden of proving that respondent was "mentally ill" as
defined in CPL 330.20 (1) (d), the court properly granted
petitioner's application and released respondent subject to an
order of conditions.

     Lahtinen, J.P., Rose, Lynch and Devine, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
