In re Albert F.

In a proceeding for a subsequent- retention order pursuant to CPL 330.20, Albert F. appeals, as limited by his brief, from so much of (1) an order of the County Court, Suffolk County (Tisch, J.), dated July 17, 1990, as imposed conditions on his subsequent retention, and (2) a resettled order of the same court, dated October 23, 1990, which also imposed conditions on his subsequent retention.

Ordered that the appeal from the order is dismissed, without costs or disbursements, since that order was superseded by the resettled order; and it is further,

Ordered that the resettled order is reversed insofar as appealed from, on the law, without costs or disbursements, the provision imposing conditions on Albert F.’s subsequent commitment is deleted, and the provision of the order dated July 17, 1990, imposing conditions on his subsequent retention is vacated.

In 1980, Albert F. was found not guilty by reason of mental disease of the intentional murder of a high school student. He was found to have a "dangerous mental disorder” within the meaning of CPL 330.20 (1) (c), and was committed to the custody of the New York State Commissioner of Mental Health, to be confined within a "secure facility” as defined by CPL 330.20 (1) (b). Subsequently, in January 1985 and pursuant to a transfer order (see, CPL 330.20 [11]) issued by the County Court, Orange County, Albert F. was transferred to the Kings Park Psychiatric Center, Suffolk County (a non-secure facility), upon a finding that he no longer suffered from a "dangerous mental disorder”.

During his hospitalization at the Kings Park facility, Albert F. was granted and used unescorted administrative privilege passes for a period of four years. With these passes he was essentially allowed to roam the grounds of the facility without supervision (see, 14 NYCRR 541.5 [b]). However, in the latter part of 1989 certain allegations were made that Albert F. had violated these passes by leaving the facility without permission. Accordingly, the Kings Park Psychiatric Center conducted an investigation into the allegations, and pending the investigation, Albert F.’s privileges were suspended. At the conclusion of the investigation, the facility was unable to reach a conclusion as to the truth of the allegations. It was subsequently recommended that his privileges be returned with certain time and monitoring conditions.

By this time, Albert F. was being committed under his fifth subsequent retention order. This fifth retention order was scheduled to expire on May 2, 1990. Therefore, in March 1990 the New York State Commissioner of Mental Health applied to the County Court, Suffolk County, for a subsequent retention order pursuant to CPL 330.20 (9). Although two district attorneys’ offices had moved to intervene in the proceeding to conduct an investigation into the allegations against Albert F., there was no opposition to the application itself. Additionally, the application made no mention of any conditions to be imposed on his further commitment.

In granting the application and issuing a subsequent retention order, the County Court, Suffolk County, imposed a condition that Albert F. be prohibited from leaving the buildings to which he was restricted without the constant supervision of one or more employees of the Kings Park facility, based in part on the allegations that he had left the facility’s grounds.

While other subdivisions of CPL 330.20 allow the court to issue an order on conditions during various phases of a person’s commitment (see, CPL 330.20 [7], [10], [11], [12]), we find no statutory authority for the imposition of conditions when a person is retained pursuant to CPL 330.20 (9). Conditions of treatment may only be imposed pursuant to an "order of conditions” (CPL 330.20 [1] [o]), and such an order may only be extended "for good cause shown” (CPL 330.20 [1] [o]). Here the County Court did not issue an "order of conditions” (CPL 330.20 [1] [o]) nor was there a showing of good cause.

Moreover, separate regulations passed pursuant to CPL 330.20 govern when, how, and under what circumstances a person may be granted administrative privileges, which include allowing the person to leave the buildings to which he or she is restricted without supervision (see, 14 NYCRR 541.1 [a]; 541.5, 541.9). For a court to unilaterally impose such conditions undermines these regulations, the purpose of which is to entrust care and treatment to mental health professionals, not the courts.

In light of our determination, we need not address Albert F.’s due process argument. Thompson, J. P., Brown and Fiber, JJ., concur.