In re the Narcotic Addiction Control Commission , 285 N.Y.S.2d 793 ( 1967 )

Rabin, J.

This appeal brings up for consideration the constitutionality of section 206 of the new Mental Hygiene Law enacted in 1966, which provides for the compulsory treatment of narcotic addicts.

This proceeding was initiated by the petition of the mother of Paul James, the alleged addict. Based upon that petition, and pursuant to the relevant sections of the act, a warrant for the apprehension and detention of James was issued. (Mental Hygiene Law, § 206, subd. 2, pars, a and c.) In accordance with the mandate of the warrant, and on May 2, 1967, James was brought to the Edgecombe Reception Center for a medical examination. Subsequent to such examination, and on May 5, James was brought to court as required by the Mental Hygiene Law (Mental Hygiene Law, § 206, subd. 2, par. c). He was advised of his constitutional rights, counsel was assigned, and pursuant to James’ request, a hearing was set for May 10. The hearing was subsequently adjourned to May 15. After the hearing an order was entered at Special Term certifying him to the care and custody of the Narcotic Addiction Control Commission. (Mental Hygiene Law, § 206, subd. 4, par. c.) Pursuant to the provisions of the Mental Hygiene Law, and upon application by James, a second hearing was had, this time with a jury. On July 31 the jury rendered a verdict that James was a narcotic addict. James was then recommitted to the care and custody of the commission, subject to the trial court’s decision on the constitutionality of the procedures followed.

Thereafter, the court ordered the addict released, holding unconstitutional section 206 of the act, which provides that upon the alleged addict’s apprehension he may be brought immediately to the reception center for physical examination, rather than directly before the court where he could have been advised of his constitutional rights, and could have been assigned counsel if he had none. Both parties appeal from the order.

There is no necessity to refer to the long history of society’s attempt to find some solution to the problem of narcotic addiction and its resultant by-products. It might be sufficient at this point simply to refer to the findings of the Legislature which served as a foundation for the enactment of this new legislation. The Legislature found, among other things, that “ addicts are estimated to be responsible for one-half of the crimes committed in the city of New York alone and the problem of narcotic addiction is rapidly spreading into the suburbs and other parts of the state.” (Mental Hygiene Law, § 200, subd. 2.) We need not comment upon the import of this ominous finding, or of the necessity for society to make every effort to meet the problem presented.

The Legislature found further that the situation created a “ threat to the peace aiid safety of the inhabitants of the state ”. (§ 200, subd. 2.) Moreover, it stated that a “ comprehensive program of compulsory treatment of narcotic addicts is essential to the protection and promotion of the health and welfare of the inhabitants of the state ”. (Mental Hygiene Law, § 200, subd. 2.)

Such a program has been sanctioned by the United States Supreme Court in the case of Robinson v. California (370 U. S. 660, 665). There the court stated that a “ State might establish a program of compulsory treatment for those addicted to narcotics. Such a program of treatment might require periods of involuntary confinement.” That statement was made in connection with the declaration of the unconstitutionality of a California penal statute, which in effect made it a criminal offense for one merely to be an addict. Of course, the statute we are considering is nowise penal in nature.

In view of the finding of the Legislature that the narcotic problem presents a grave danger to society, and in view of its finding that a program of compulsory treatment is needed for the protection of society as well as for the promotion of the welfare of the individual and, further, considering the express approval of the United States Supreme Court with respect to such a program, we hold that the 1966 amendments to the Mental Hygiene Law, with respect to the treatment and detention of narcotic addicts, were a valid and proper exercise of the State’s police power.

While it might be true that the statute impinges upon the civil rights of one who is apprehended, yet in almost every case where the State exercises its police power in an attempt to meet and cure a condition that is found to be dangerous to society as a whole, there is some impingement on civil rights. The problem presented is one of balancing the interest of society with the rights of the individual. If the State acts reasonably in the exercise of its power and does not go beyond what is necessary to meet the condition presented, then we may say that its action may be sustained from a constitutional standpoint. The legislative finding, as indicated, reveals a serious threat and danger to society and we believe that the Legislature did not intrude upon the civil rights of individuals unreasonably in its attempt to meet and cure the situation.

In the case before us, Trial Term directed its attack solely against those provisions of section 206 which direct that the alleged addict, after apprehension, be taken for medical examination prior to his appearance in court for a hearing. While it might be that it would have been wiser and preferable for the Legislature to have made provision for an alleged addict to be taken to a Judge immediately upon his apprehension, we do not think that the provision complained of violates the constitutional rights of one so apprehended.

It should be noted that the warrant authorizing apprehension of an alleged addict may be issued only after a Judge or Justice has examined the petition and determined that there are reasonable grounds to believe that the person on whose behalf the application is made is a narcotic addict. (Mental Hygiene Law, § 206, subd. 2, par. a.)^*

Since the Judge or Justice must be satisfied on the facts presented with the necessity of issuing a warrant, such apprehension does not deprive the addict of his liberty without due process. In this respect the procedure authorized by the act is similar to that where an ordinary warrant of arrest is issued by a Judge.

We can see no prejudice to the alleged addict by the provision that he be brought for medical examination prior to a hearing. Indeed, such hearing would serve no useful purpose unless a medical examination was first had to provide the medical evidence necessary to determine whether or not the alleged addict should be further detained. In this respect we have ample precedent under our laws, which provide for the detention — preliminary to a court hearing — for medical examination of one who is deemed to be mentally ill (see Mental Hygiene Law, § 72). Moreover, should an alleged narcotic addict be brought to court immediately upon apprehension, there is little that the court would be able to do except to first direct that he undergo a medical examination.

Of course, it could be said that if he were brought to court immediately, he then could be advised of his rights and have counsel assigned to him. But failure to have done so did not in any way prejudice the alleged addict. If, as the result of the failure to assign counsel, some of his rights were irreparably lost to him, then perhaps the failure to do so could have been deemed a fatal defect which would warrant his release. However, none of Ms rigMs were lost, since the assignment of counsel, after Ms medical examination, assured him every opportunity to assert any and all of his constitutional rights that would be appropriate in the circumstances. (See Canizio v. New York, 327 U. S. 82; People v. Combs, 19 A D 2d 639; People v. Dolac, 3 A D 2d 351, affd. 3 N Y 2d 945.) Even if his initial appearance and detention could be considered unlawful, the subsequent proceedings were proper and may stand (see Prisbie v. Collins, 342 U. S. 519).

Furthermore, if indeed there were any defect in not assigning counsel prior to the alleged addict’s medical examination — and we think there was none — there was no justification to release him, because with the protection of counsel, and in accordance with the provisions of the law, he was indeed found to be a narcotic addict, first by a court sitting alone, and again at a trial with a jury. To do so would be allowing at large one who the Legislature states is a danger to society.

It is urged that in this case the alleged addict was indeed prejudiced for he made statements during the period of his examination, which were improperly admitted in evidence during the subsequent hearings. However, these statements were not of a nature that would abridge the alleged addict’s rights against self incrimination. Indeed, section 206-b of the Mental Hygiene Law provides that none of the 11 facts or proceedings relating to the admission, certification or treatment of any such narcotic addict be used against him in any proceeding in any court, other than a proceeding pursuant to the provisions of this article.”

Moreover, there can be no question, if we are to have any system of compulsory treatment at all, that a medical examination must be had, whether before or after assignment of counsel — and no medical examination can be complete, or can serve any useful purpose unless the alleged addict responds to questions that are essential in order to make a proper diagnosis. Consequently, I fail to see how the taking of these statements, without advice of counsel, and the use of them during the hearings, prejudice or violate the rights of the alleged addict in any manner whatsoever.

In the instant case, it is our conclusion that the evidence overwhelmingly established James as an addict within the meaning of the law. Even if we were to eliminate evidence, which it is claimed was unlawfully obtained, there is sufficient remaining to strongly support the conclusion reached by both Judge and jury, i.e., that James is a narcotic addict.

However, in no event should the act in its entirety fall. The act under consideration has a severability clause. Consequently, the act should be permitted to stand if after excising the portion of the act deemed to be unconstitutional, the remainder carries out the objectives of the Legislature. (Schieffelin v. Goldsmith, 253 N. Y. 243.) If it should be held that the provision for medical examination, prior to appearance before a Judge, be unconstitutional, the balance of the act could be saved by excising such provision and providing for appearance before the Judge issuing the warrant, immediately upon apprehension. That can be done by striking from section 206 (subd. 2, par. c) the words “ to a specified place for an immediate medical examination, and (iii) to bring such alleged narcotic addict immediately after conclusion of such examination ’ \ By so doing, that section of the statute will then read as follows: “ A warrant issued pursuant to this subdivision shall be directed to any peace officer in the state commanding such peace officer (i) to take the alleged narcotic addict into custody, (ii) to deliver such alleged narcotic addict forthwith before the judge or justice issuing the warrant ’ ’. Similar corrections could be made in any other portion of the act where it is deemed necessary.

As indicated, while it would have been wiser for the Legislature to have made provision for the immediate appearance of the alleged addict before the court after apprehension, the failure to do so does not constitute an infirmity as to declare the act to be unconstitutional — particularly in the light of the afforded constitutional protection by way of trial before court and jury with the help and advice of counsel.

Accordingly, the order and judgment of the trial court should be reversed and James should be returned to the custody of the Narcotic Addiction Control Commission for such treatment as the statute provides. Settle order.

* The statute provides initially for the issuance of an order to be served upon the alleged addict directing him to appear for examination. However, if a Judge or Justice determines that the alleged addict “would not comply with any such order, a warrant may issue in lieu” thereof.