                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: May 21, 2015                       519353
________________________________

In the Matter of JOHN Z.

COMMISSIONER OF THE NEW YORK
   STATE OFFICE OF MENTAL                    MEMORANDUM AND ORDER
   HEALTH,
                    Respondent;

JOHN Z.,
                    Appellant.
________________________________


Calendar Date:    April 24, 2015

Before:    Peters, P.J., Garry, Egan Jr. and Lynch, JJ.

                              __________


     John Z., Comstock, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Jeffrey W.
Lang of counsel), for respondent.

                              __________


Garry, J.

      Appeal from an order of the Supreme Court (Pritzker, J.),
entered June 20, 2014 in Washington County, which, in a
proceeding pursuant to CPL 330.20, partially denied respondent's
motion to seal the record of the proceeding.

      Respondent was found not guilty of various crimes by reason
of mental disease and defect. He was also convicted of other
crimes and is currently serving a prison sentence. In 2013,
petitioner applied for a recommitment order pursuant to CPL
330.20, arguing that respondent has a dangerous mental disorder
and that he currently constitutes a physical danger to himself
and others. Respondent moved to seal the recommitment
                              -2-                519353

proceedings and for a hearing to determine the source of alleged
leaks of information regarding the proceeding to the media.
Supreme Court partially granted respondent's motion, ruling that
his clinical treatment records, related hospital records and
unrelated medical records would be sealed, but otherwise denied
the motion. Respondent now appeals.

      Respondent contends that Supreme Court should have ordered
a blanket sealing of the record and proceedings pursuant to
Mental Hygiene Law §§ 9.31 (f) and 33.13. Generally, individuals
acquitted by the defense of mental disease or defect are accorded
the same rights as patients under the Mental Hygiene Law (see CPL
330.20 [17]). Mental Hygiene Law § 9.31 (f) provides that papers
filed with the county clerk regarding involuntary admissions on
medical certification shall be sealed. Pursuant to Mental
Hygiene Law § 33.13, clinical records for patients shall not be
made public (see Mental Hygiene Law § 33.13 [c]).

      Here, respondent was subject to CPL 330.20 based upon his
acquittal of criminal charges by reason of mental disease or
defect. A lack of responsibility for criminal conduct by reason
of mental disease or defect is an affirmative defense that a
defendant must raise and prove by a preponderance of the evidence
(see Penal Law §§ 25.00 [2]; 40.15). By avoiding criminal
penalties and becoming subject to CPL 330.20, "this places
insanity acquittees in a significantly different posture than
involuntarily committed civil patients" (Matter of Jamie R. v
Consilvio, 6 NY3d 138, 141 n 2 [2006]), and "rational differences
between procedures for commitment and release applicable to
defendants found not responsible and persons involuntarily
committed under the Mental Hygiene Law are justifiable" (1981
Report of NY Law Rev Commn, 1981 McKinney's Session Laws of NY,
at 2264; see Matter of Jamie R. v Consilvio, 6 NY3d at 141, n 2).
In light of this distinction, we agree with Supreme Court that
the blanket sealing of the record that is specifically applicable
to the involuntarily admission of civil patients under Mental
Hygiene Law § 9.31 (f) is not applicable to respondent (see
People v Kahan, 115 Misc2d 725, 736-737 [1982]).

      We reach a different conclusion, however, regarding
defendant's clinical record. Pursuant to Mental Hygiene Law
                              -3-                519353

§ 33.13, a clinical record for each patient or client shall be
kept containing "information on all matters relating to the
admission, legal status, care, and treatment of the patient or
client and shall include all pertinent documents relating to the
patient or client" (Mental Hygiene Law § 33.13 [a]) and "such
information about patients or clients . . . shall not be a public
record," subject to certain exceptions (Mental Hygiene Law
§ 33.13 [c]). Although Supreme Court ruled that respondent's
clinical treatment records, related hospital records and
unrelated medical records must be sealed, it is unclear if other
information intended to be included in his clinical record under
Mental Hygiene Law § 33.13 (a) would be made public. In our
view, respondent is entitled to the full protection of Mental
Hygiene Law § 33.13, and all information contained in his
clinical record, as defined in Mental Hygiene Law § 33.13 (a),
shall not be made public, subject to the statutory exceptions
(see Mental Hygiene Law § 33.13 [c]).

      Finally, Supreme Court properly denied respondent's request
for a fact-finding hearing to uncover the source of alleged
disclosures of information to the media, as there is no evidence
of any unauthorized disclosure of information.1 Respondent's
remaining contentions have been considered and found to be
without merit.




    1
        Respondent also argues that Supreme Court abused its
discretion with regard to whether the general public will be
allowed to attend future hearings (see 22 NYCRR 109.1). The
record reflects that, when addressing this issue, the court
stated that respondent had not made any request to close the
courtroom. Although the court indicated that any future request
that a hearing be closed would be scrutinized within the context
of balancing the public interest in the matter with respondent's
privacy rights, such a statement is not appealable, as it did not
involve some part of the merits or affect a substantial right of
the parties (see CPLR 5701 [a] [2] [iv], [v]; Cuomo v Long Is.
Light. Co., 71 NY2d 349, 354 [1988]; Kroemer v Pensgen, 38 AD3d
1239 [2007]).
                              -4-                  519353

     Peters, P.J., Egan Jr. and Lynch, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as denied that part of
respondent's motion seeking that his clinical record be sealed
pursuant to Mental Hygiene Law § 33.13 (c); motion granted to
that extent; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
