                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 4, 2014                    516448
________________________________

In the Matter of JAMES Q.

COMMISSIONER OF THE OFFICE FOR
   PEOPLE WITH DEVELOPMENTAL
   DISABILITIES,                             OPINION AND ORDER
                    Respondent;

JAMES Q.,
                     Respondent,
     and

SUFFOLK COUNTY DISTRICT
   ATTORNEY,
                    Appellant.
________________________________


Calendar Date:    October 6, 2014

Before:    Lahtinen, J.P., McCarthy, Egan Jr., Devine and
           Clark, JJ.

                              __________


      Thomas J. Spota, District Attorney, Riverhead (Guy
Arcidiacono of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Andrew B.
Ayers of counsel), for Commissioner of the Office for People with
Developmental Disabilities, respondent.

      Sheila E. Shea, Mental Hygiene Legal Service, Albany
(Jeanne N. Cox of counsel), for James Q., respondent.

                              __________
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McCarthy, J.

      Appeal, by permission, from an order of the Supreme Court
(Feldstein, J.), entered February 14, 2013 in Franklin County,
which granted petitioner's application pursuant to CPL 330.20 for
a furlough order, and issued a furlough order with conditions.

      Respondent James Q. (hereinafter respondent) is confined to
a secure facility operated by the Office for People with
Developmental Disabilities (hereinafter OPWDD). He is confined
due to his 2010 plea to certain criminal charges of not
responsible by reason of mental disease or defect, as well as two
subsequent retention orders, all of which found that he suffered
from a dangerous mental disorder (see CPL 330.20 [2], [6], [8],
[9]). Petitioner commenced this proceeding seeking a furlough
order, subject to strict conditions, that would allow respondent
to leave the secure facility while being accompanied and
supervised by OPWDD staff (see CPL 330.20 [10]). Respondent
Suffolk County District Attorney (hereinafter the DA) opposed the
application. After the parties agreed to proceed on stipulated
facts, Supreme Court indicated its intention to issue a furlough
order. The court permitted the parties to submit suggested
conditions for such an order, then issued an order with certain
conditions. The DA appeals.

      Supreme Court was required to issue a furlough order and
did not abuse its discretion as to the terms and conditions of
that order. A furlough order is defined as "an order directing
[petitioner] to allow a defendant in confinement pursuant to a
commitment order, recommitment order or retention order to
temporarily leave the facility for a period not exceeding [14]
days, either with or without the constant supervision of one or
more employees of the facility" (CPL 330.20 [1] [k]). The
relevant provision for the application and issuance of a furlough
order reads, in pertinent part, as follows:

           "[Petitioner] may apply for a furlough
           order, pursuant to this subdivision, when
           a defendant is in his [or her] custody
           pursuant to a commitment order,
           recommitment order, or retention order and
                              -3-                516448

           [petitioner] is of the view that,
           consistent with the public safety and
           welfare of the community and the
           defendant, the clinical condition of the
           defendant warrants a granting of the
           privileges authorized by a furlough order.
           . . . If the court finds that the
           issuance of a furlough order is consistent
           with the public safety and welfare of the
           community and the defendant, and that the
           clinical condition of the defendant
           warrants a granting of the privileges
           authorized by a furlough order, the court
           must grant the application and issue a
           furlough order containing any terms and
           conditions that the court deems necessary
           or appropriate" (CPL 330.20 [10]).

      As an initial matter, we must address the standard of
review relevant to a CPL 330.20 (10) furlough order. The
Legislature specified that the DA has the burden on an initial
hearing seeking a commitment order (see CPL 330.20 [6]). If
petitioner seeks to retain a defendant in OPWDD custody, the
Legislature placed the burden on petitioner to establish the
elements necessary for retention (see CPL 330.20 [8], [9]). If
petitioner seeks release and the DA opposes that relief, however,
the Legislature placed the burden on the DA to establish the
elements necessary for retention (see CPL 330.20 [8], [9]).
Unlike those situations, the Legislature did not specify who
bears the burden on a furlough application (see CPL 330.20 [10]).
Because the statute does not assign the burden and petitioner is
the only person authorized by the statute to apply for a furlough
order, the only logical conclusion is that the Legislature
intended for petitioner to bear the burden of proving that a
furlough order should be granted. The Court of Appeals has
determined that the preponderance of the evidence standard
applies to commitment and retention orders (see Matter of George
L., 85 NY2d 295, 303 [1995]; People v Escobar, 61 NY2d 431, 439-
440 [1984]; see also Matter of Amir F., 94 AD3d 1209, 1210
[2012]; Matter of Michael RR. [Commissioner of Mental Health],
233 AD2d 30, 32-33 [1997], lvs dismissed 91 NY2d 921 [1998], 92
                              -4-                516448

NY2d 886 [1998]). Absent any legislative indication that a
different standard should apply and absent any constitutional
concerns, we hold that petitioner's burden on a furlough
application is to prove the appropriateness of a furlough order
by a fair preponderance of the credible evidence.

      On appeal, we review de novo Supreme Court's determination
as to whether to grant a furlough order, but defer to the court's
determination regarding applicable terms and conditions. The
statute states that if certain requirements are satisfied, "the
court must grant the application and issue a furlough order
containing any terms and conditions that the court deems
necessary or appropriate" (CPL 330.20 [10]). The Legislature's
use of the word "must" indicates a lack of discretion, such that
an order is mandated upon proof that the statutory conditions are
established (cf. Matter of Kardos v Ryan, 28 AD3d 1050, 1051
[2006]; Matter of Phillips v Town of Clifton Park Water Auth.,
215 AD2d 924, 926 [1995]). If an order is required by the
statute, however, the statute provides broad discretion to the
court regarding the inclusion of terms or conditions. Thus, if
we determine that the evidence proves that a furlough order is
required, we will only disturb the terms and conditions of that
order if Supreme Court abused its discretion in that regard.

      The facts regarding respondent's history and confinement
are largely uncontested. He had lengthy psychiatric commitments
during his youth and currently has several mental health
diagnoses, including a mood disorder, disruptive behavior
disorder, mild mental retardation and a personality disorder with
narcissistic and antisocial traits. The criminal charges that
led to his present commitment pertain to a violent physical
attack on his under-aged girlfriend, as well as his sexual
relations with her on a prior occasion. Respondent was found to
have a dangerous mental disorder and he apparently has not
challenged his continued need for confinement to a secure
facility. In support of petitioner's furlough application, a
licensed psychologist opined that the proposed furlough order was
consistent with the public safety and welfare of the community
and of respondent, and was otherwise consistent with respondent's
current clinical condition. The psychologist explained that
outings and forays into the community are an important part of
                              -5-                516448

the treatment program and would be introduced in steps that
safeguard the community and provide adequate supervision of
respondent. Respondent's positive behavior on medical
appointments and improved behavior management in the facility
have shown his ability to interact with others. Thus,
respondent's treatment team supported a restricted, escorted
furlough plan as a form of graduated increases in public
interaction, under strict supervision of OPWDD employees, to
further his treatment and assess his ability to eventually regain
his liberty.

      In opposition, the DA did not submit any evidence
whatsoever, but argued that respondent's criminal behavior and
plea, along with some of the behavior noted by the psychologist,
render him inappropriate for furloughs. Given that every person
who falls under the purview of CPL 330.20 is adjudged to have a
mental disease or defect (see e.g. Matter of George L., 85 NY2d
at 306), a mental disease or defect cannot logically, on its own,
disqualify a person from a furlough under that statute. A plain
reading of the statute shows that persons with dangerous mental
disorders within the meaning of CPL 330.20 (1) (c) are potential
candidates for furloughs; CPL 330.20 (10) provides certain
consequences for anyone on a furlough who "fails to return to [a]
secure facility," and the only persons appropriately residing in
a secure facility on more than a temporary basis are those found
to have a dangerous mental disorder (see Matter of David B., 97
NY2d 267, 278 [2002]). Several of the DA's concerns were
unrealistic or overly alarmist regarding potential danger to the
community, as the proposed furloughs were based on a risk
management plan that required constant supervision of respondent.

      Petitioner met its burden of proving by a fair
preponderance of the evidence that a narrowly-tailored furlough
order would be "consistent with the public safety and welfare of
the community and [respondent]," and that his clinical condition
warrants such an order (CPL 330.20 [10]). Thus, Supreme Court
was required to grant a furlough order. Regarding the terms and
conditions, the court ordered that the furloughs be escorted and
conducted in accordance with respondent's OPWDD risk management
plan. The treatment team's plan contained steps beginning with
allowing respondent to ride to scenic locations in a van,
                              -6-                  516448

accompanied by two supervising staff members plus a driver, but
never allowing him to leave the vehicle. Each step required
successful completion for a period of months before moving on to
the next step, with each progressive step including either
greater public interaction or fewer supervisors, although
respondent would always be closely supervised by OPWDD staff on
any outing. The court also ordered that petitioner provide the
DA with a copy of any summary of respondent's behavior on all
furloughs, within a specific time afterward. These strict
conditions are reasonable and do not constitute an abuse of
discretion.

     Lahtinen, J.P., Egan Jr., Devine and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
