People v. McCollum

DECISION AND ORDERMr. McCollum was charged with, inter alia, Criminal Impersonation in the First Degree (Penal Law §190.26[1]), Grand Larceny in the Second Degree (Penal Law §155.40[1]) and Unauthorized Use of a Vehicle in the Third Degree (Penal Law §165.05[1]). On January 8, 2018, he pleaded not responsible by reason of mental disease or defect pursuant to CPL §220.15. Thereafter, the Court conducted an initial hearing to determine his present mental condition pursuant to CPL §330.20(6). The parties then filed extensive submissions. For the reasons that follow, the Court finds that Mr. McCollum does have a dangerous mental disorder as defined in CPL §330.20(1)(c). As such, the Court designates Mr. McCollum a “Track 1″ acquittee and issues the annexed Order of Commitment pursuant to CPL §330.20(6). Under the particular facts of this case, Mr. McCollum shall not be committed to Kirby Forensic Psychiatric Center.I. THE PLEA PROCEEDINGS¹On January 8, 2018, Mr. McCollum pleaded not responsible by reason of mental disease or defect. Two psychiatric reports were introduced into evidence: Dr. Eric Goldsmith’s report dated April 25, 2017 and Dr. Marc Tarle’s report dated October 1, 2017, which were marked as Court’s Exhibits 1 and 2 respectively.² Both doctors agreed that Mr. McCollum met the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (hereafter “DSM-5″) criteria for Autism Spectrum Disorder (hereafter “ASD”). In response to the Court’s directive to “explain the evidence available to the People with respect to the offense charged,” the People responded:On November 8th, 2015 at the Port Authority in New York County, the Defendant was in a restricted area of the Port Authority. He was stopped by a Greyhound employee, that questioned the Defendant as to why he was in the restricted area. The Defendant then displayed a silver badge and shield and stated that he was a Federal agent, at which point the employee allowed the Defendant to go. Later that same day at the Port Authority, the Defendant was again stopped, this time he was on an actual bus in the Port Authority. He was taken off by another employee and brought to Mr. Hans Phillips (phonetic). The person asked Mr. Phillip[s], do you know the Defendant and Mr. Phillip[s] responded the Defendant is a New York Detective to which the Defendant responded, I told you [sic] [s]o and the Defendant was allowed to leave the location by both employees of Greyhound. On November 10th, 2015 in New Jersey at a Greyhound bus depot, the Defendant removed the Greyhound bus. He drove that bus into Queens where he left the bus overnight. Then on the next day, November 11th, he went on the bus, he drove the bus into Manhattan where he parked the bus in the vicinity of the Port Authority. The Defendant then removed the bus from the Port Authority driving the bus into Queens and Brooklyn. Greyhound reported the bus stolen. The Defendant was stopped driving the bus by Police Officer Germanson (phonetic) that observed the Defendant behind the wheel of the bus. The Defendant was also in possession of this shield that he had displayed earlier on November 8th, 2015 at the Port Authority. And the Defendant was also wearing a Greyhound overhaul. Further, [sic] there’s also video evidence of the Defendant operating the Greyhound bus, as well as a reported recorded phone call by the Defendant from Rikers Island where he went through his taking the bus from New Jersey and driving to Manhattan. Further, the GPS records do support and substantiate the entirety of the Defendant’s story regarding his taking of the bus, Your Honor. Referring, Your Honor, to People’s–to the Court’s Exhibit 2, the report by Dr. Tarle. Dr. Tarle examined the Defendant and Dr. Tarle directed that the Defendant was suffering from autism spectrum disorder. Further, Dr. Tarle did write in his opinion, the Defendant did lack the substantial capacity to know or appreciate the consequences of his actions by reason of mental illness, autism spectrum disorder. The People are accepting of Dr. Tarle’s recommendation. And as such, at trial, it’s the People’s position that with this evidence, the People’s evidence that the Defendant would indeed prevail on the affirmative defense on mental disease and defect, Your Honor(P: 4-6). The People indicated that they “believe[d] the plea [was] in the best interest of justice” (P: 6-7).As to the defense, in response to the Court’s directive to “state in detail by incorporation by reference of the psychiatric reports or otherwise, the psychiatric evidence available to the Defendant with respect to the affirmative defense,” defense counsel responded:The evidence that I have reviewed beg[an] with his first hospitalization when he was a teenager. Those records are limited but because they were limited, I did interview family members. I also interviewed his teacher that he had at the time that he was actually placed in a hospital. He was diagnosed with a mental illness and treated basically for defects at the time they did not [diagnose] as autism because autism was not basically a diagnosis. I’ve gone through his records from his twenties when he was hospitalized again. I’ve gone through the records from Rikers Island that include his records from other incarcerations, and his upstate records. Beginning in his thirties the doctors did all consistently [diagnose] [sic] him as being autistic. At the time, although, the language is autism spectrum disorder with a override of obsessive compulsive behavior this is consistent with interviews by his family members and Special Ed teachers, and three former police officers that actually arrested him and debated as to whether he should be taken to Creedmoor or put through the system. So there has been a number of years of records reviewed and interviews that I have done that I feel more confident that my client does suffer from autism spectrum disorder. As Dr. Goldsmith has detailed in exhibit number one he calls it as mental defect and also in exhibit number two, that is it is the Government’s doctor, it is consistent with Dr. Goldsmith’s report that my client does have autism spectrum disorder, and he’s actually found that it’s the Government’s doctor that my client is not responsible by mental defect. I think by all my interviews, all my records of which I turned over to the Government, and to the doctors, there’s ample evidence to suggest that my client is actually not responsible by mental defect(P: 7-9). Defense stated further that Mr. McCollum did not have a viable defense to the charges other than the proposed affirmative defense.Mr. McCollum was then allocuted extensively about his plea. As to the factual allegations, the Court queried: “[a]nd so the key allegations are that on or about November 8th, 2015 in the county of New York, you displayed a purported police badge to a Greyhound employee and identified [yourself] as a federal agent [then] consequently on November 11th, 2015 you took a Greyhound bus without authorization and drove that bus to Brooklyn; is that correct?” (P: 11). Mr. McCollum responded, “[t]otally” (id.). Thereafter, the following colloquy ensued:The Court: Mr. McCollum, I would like to go back to the charges in this case and the factual allegations in this case. And I’m going to ask you to put on the record what you did with respect to the charges in this case.Mr. McCollum: I went to New Jersey, went to the Greyhound yard in Jersey, Hoboken. I commandeered a bus that was parked in the yard. I drove back over to New York through the Lincoln Tunnel. I drove to my house, parked it about six blocks from my house.The Court: Did you utilize any badge and identify yourself as any sort of law enforcement officer?Mr. McCollum: Not that particular time, no.The Court: While you were in New Jersey?Mr. McCollum: Not in New Jersey, no. I was–The Court: At the Port Authority?Mr. McCollum: At the Port Authority, yes.The Court: And so what did you do with respect to that aspect of it?Mr. McCollum: One of the mechanics was asking me who I was, because I saw something was wrong with the bus, one of [the partitions] were missing. And I had, I addressed to a mechanic that was already there, and he asked me to go on the bus to go get it. When the other guy came he asked me who I was. I said I was on security. He said but you don’t work for Greyhound you shouldn’t be on the bus.The Court: Did you have a badge at that time?Mr. McCollum: Yes, I did.The Court: Did you display that badge?Mr. McCollum: Yes, I did.The Court: Continue.Mr. McCollum: And–The Court: Continue.Mr. McCollum: And what happened was I went home that night. It was raining. I parked the bus like I said six blocks from my house, went home, slept, got up in the morning, took a shower, ate breakfast. It wasn’t my intention to keep the bus. So I figured I would drive back to the City, which I did, went to Port Authority, went downstairs, hung out. After that I was joyriding around Queens, and then I went to Brooklyn. Unfortunately, I got apprehended in Brooklyn later on in the afternoon.The Court: And you obviously [knew] that you were not authorized to drive that bus; is that correct?Mr. McCollum: Correct.(P: 16-18). The People then confirmed that they had no issue with the factual allocution given by Mr. McCollum.The Court issued an examination order directing the commissioner of mental health to have Mr. McCollum examined by two qualified psychiatrists. Once Mr. McCollum was examined, the Court received reports from the examinations and conducted the initial hearing pursuant to CPL §330.20(6).II. THE INITIAL HEARING³The initial hearing was conducted over several dates: May 30, 2018; June 8, 2018; July 9-11, 2018; July 23, 2018 and August 2, 2018. Mr. McCollum’s medical records, including reports written about him, were admitted int. The People called the following witnesses: Mr. McCollum; Dr. Anthony Lanotte, Mr. McCollum’s treating psychiatrist at Kirby Forensic Psychiatric Center (hereafter “Kirby”); Dr. Marc Tarle, the People’s independent expert psychiatrist; Kim Gibbs, Senior Director of Training with the New York City Transit Authority; and Dr. Catherine Mortiere, Mr. McCollum’s treating psychologist at Kirby. Mr. McCollum called two witnesses: Dr. Amina Ali and Dr. Lara Cox, who were the examining psychiatrists designated by the Commissioner of Mental Health.A. People’s CaseMr. McCollumChildhoodMr. McCollum was drawn to trains and the Metropolitan Transit Authority (hereafter “MTA”) subway system as a child. He began having a passion for the transit system, but more specifically the subways trains, at about the age of eight. He played with toy trains sets as a child growing up in the Jamaica neighborhood of Queens, New York. He also studied the subway map in his spare time and became knowledgeable of the train routes. His mother took him on the subway train on Saturday mornings to do her shopping. During some of those rides, he used to “hang out up in the front with the train operator, which at that time, they were called motormen” (H: 123). The motormen showed him how they operated the trains and his mother boosted him up at the window so that he could see out through the front of the train.Around the same age as Mr. McCollum’s fascination with the transit system began, he was placed into special education classes at school. Mr. McCollum “never knew” why he was placed in special education classes but recalled having difficulty forming friendships at school (H: 121). He described being bullied at school; other students took his lunch money, beat him up and had him do their homework. Mr. McCollum believed that his traveling experiences and clothing made other students treat him differently. He described himself as a “rambunctious” child who had a lot of energy and was fidgety, but he was never treated for his overactive physical movements when he was younger (H: 127). He eventually transferred to a school that was designed to specifically address his special education needs.In 1976, when Mr. McCollum was approximately twelve years old, another student stabbed him in his back with a pair of scissors while he was at school. The scissors punctured one of his lungs. He lost consciousness while waiting for EMS and recalled waking up in the hospital with his parents by his side. Mr. McCollum remained in the hospital “almost two to three weeks” and had surgery to re-inflate his left lung (H: 132). He then went home to continue his recovery and was bedridden for approximately six months. While he was home recovering, the Department of Education provided educational assistance to him at his home to “keep [him] caught up” (id). Eventually, Mr. McCollum went back to the same school and became more frightened and fearful since the student who stabbed him was still there. Mr. McCollum started to sit toward the back of the class and did not want to be around other people. However, he never informed anyone of his fear at school.Shortly after returning to school, Mr. McCollum started going into the transit system. He “felt more comfort, and [he] felt better being around strangers, as opposed to being around [his] parents. [He] felt [he] could confide more in [the transit workers] than he could his parents” (H: 134). When Mr. McCollum first started spending time in the transit system, his station of choice was the “179 Hillside Avenue [station] back at that time on the F [line]” (id.). The station was a short walk from his home and he went there every day. Depending on Mr. McCollum’s mood, he pretended to go to school but instead went the station; or he would go to school but left early to go to the station. He felt safer at the subway station than at school. He made friends with MTA employees, including train conductors and station maintenance workers, who were all adults. MTA employees gave him access to the station and there were no other children at the station.Mr. McCollum described the types of activities he used to engage in while he was at the subway station. When asked what he did in the station, Mr. McCollum said:Whatever it is you do. Sometimes I used to relays on the train. Relays consists of taking the train out of the station because the train is empty and bringing it back to the other side to bring it back in service. Sometimes I would help clean out the tokens when they had tokens in the turnstile. I would help clean the station, clean the locker room, clean the bathroom, [sic]. Sometimes I would bring down central dispatcher doing the logs for all of trains that are going to the yard. So I did a lot of things(H: 137). In addition to the cleaning tasks that Mr. McCollum performed at the station, he also ran errands for the MTA employees, including delivering food. MTA employees allowed Mr. McCollum, who was approximately twelve or thirteen years old, to sleep at the station; they gave him MTA uniforms, keys, a vest and a flashlight. They also gave him a locker at the station and “whatever [he] needed, they made sure they gave it to [him] no matter what it was” (H: 138). He even celebrated birthdays with MTA employees at the station. These celebrations included gifts of MTA gear including, shirts, pants, vests and gloves. Eventually, Mr. McCollum’s parents began noticing that he was spending a lot of time at the station. When his parents went to the station looking for him, MTA employees told him that the best way to avoid contact with them was to go to another station.When Mr. McCollum was “late 12 going into [his] 13th year” an MTA employee taught him how to operate a subway train (H: 139). He was first taught how to use the circuit breaker. “[He] became so good, [he] was able to sit facing you, and you could point to a circuit breaker and [he] could tell you which one it [was]” (id.). MTA employees taught him specific mechanics of various trains and gave him the keys to open and close the train doors. Those keys operated multiple subway trains. He eventually learned how to brake and reverse the train and “ operate[d] the train to go from say the tunnel from the station into the marker” (H: 140). By the age of fourteen, Mr. McCollum worked shifts for multiple MTA employees who sometimes paid him or gave him lunch. When he was not at the subway station, Mr. McCollum was at home playing with his toy trains. He loved trains so much because “the wheels go round and round” (H: 146). He also felt the same way about buses and was “infatuated by the [w]hole system” (id.). He found the humming noise of various engines to be soothing. Mr. McCollum felt important and joyful when he operated buses and trains; it made him look and feel good and he felt that he was “mak[ing] the passengers happy” (H: 66). His fascination with trains followed him into his adulthood.Mr. McCollum’s infatuation with the transit system eventually led his parents to seek psychiatric help because he spent so much time at the subway station and was not attending school. He was first sent for inpatient psychiatric care at Elmhurst Hospital when he was approximately twelve to thirteen years old. He was prescribed Thorazine which made him “drool…tired…lackadaisical” (H: 148). While he was a patient at the hospital, Mr. McCollum was raped by another older patient. He told his parents what happened, and they reported the incident. The other patient was removed to another ward and Mr. McCollum eventually left the hospital one to two weeks later. His entire stay at Elmhurst Hospital was approximately two months. He did not have any counseling to help cope with this traumatic event.Mr. McCollum then went back to school for some time, but his parents later placed him in military school at Martin De Porres. He was then placed into a group home where he stayed five times a week and went home on the weekends. Mr. McCollum had a tough time fitting in, was bullied and eventually returned to the subway system on his visits home. He believed he was bullied because he “talked like a white boy…talk[ed] proper…didn’t speak slang. [He] dressed neat. [His] homework was always neat and presentable. [He] was a B+ student in school…[He] always had good lunches” (H: 154). He played field hockey, never got into fights and never harmed animals. However, Mr. McCollum was accused of setting a fire at the group home. He admitted to setting the fire when in fact another student had set it. Similarly, although he had claimed to have attempted suicide “probably around eight or nine times at the most,” Mr. McCollum alleged that he had never actually attempted to commit suicide (H: 67).By the time Mr. McCollum was in the group home, he had seen multiple psychiatrists and psychologist who all gave different diagnosis for his behaviors. At the age of fifteen, Mr. McCollum learned that he was adopted as a baby. His biological mother died when he was around ten years old and he never knew his biological father. Mr. McCollum was unaware if any of his biological family members had any mental health issues. Also, at that age, Mr. McCollum was caught by the police operating a train. The incident was covered by the local newspaper and Mr. McCollum recalled feeling proud and important when he saw himself in the newspaper. He now has a scrapbook filled with newspaper articles about himself. Shortly after his first time getting caught operating a train, Mr. McCollum was taken into custody for operating the JFK Express. His first actual arrest was in 1981 for operating the “E train from 34th Street to the World Trade Center” (H: 281). He was covering a shift for an MTA operator and the train was full of passengers.After his arrest for the E train incident, Mr. McCollum was admitted to New York Presbyterian Hospital for psychiatric care. Later in 1981, he was admitted to New York Cornell Medical Center in White Plains, New York, where he remained under psychiatric care for approximately one year. During his stay, Dr. Pomeroy diagnosed Mr. McCollum with Asperger’s Disorder. After his discharge from that hospitalization, Mr. McCollum returned to a school in Lake Grove, Long Island where “most of the kids there were more so deaf, and there were some kids there who had other problems as well” (H: 284). Although he started to see the consequences of operating trains including getting arrested, Mr. McCollum disregarded the risk and kept operating trains because “it’s [his] passion. It’s [his] hobby and [he's] enthusiastically inclined about the train system” (H: 89).An MTA employee, who was a friend of his father’s, taught him how to operate buses at a bus depot in Jamaica, Queens when he was “around seventeen, early eighteen” (H: 286). He initially “learned how to bring the bus through the wash and how to take the tube and hook it up to the machine to clean the buses” (H: 288). He then started driving the buses for test runs to check for mechanical issues a few times a week and individual MTA employees paid him. He used the money for basic food and shelter purposes.AdulthoodSince Mr. McCollum had been caught so many times operating trains, his photograph was placed in multiple train stations. It became more difficult for him to be in train stations, so he began to operate buses instead. He stole his first bus around 1990 and continued stealing them over the next couple of decades. He was arrested in 2010 for stealing and operating an Adirondack Trailways bus. That case was also highlighted in the local newspapers. Mr. McCollum was released from prison in December of 2013 and did not steal another bus until September of 2014. In February or March of 2015, Mr. McCollum stole and operated a freight train in a train yard in Harrisburg, Pennsylvania. Later the same year, he operated another freight train in a train yard in Nashville, Tennessee; this was not the first time he had taken a train from that yard. He stole a freight train from that yard “probably back in 1997, somewhere around there” and operated the train all the way to Buffalo, New York (H: 98).Without the permission or authority of the MTA, Mr. McCollum has taken the numbered and lettered MTA train lines “a couple of thousand times” (H: 15-16). He operated approximately five thousand MTA trains. He has spent so much time in the transit system, that he has memorized the MTA subway map. He knows how to operate both local and express trains. During some of those unauthorized operations, he wore uniforms, vests or had a flashlight; other times he was in plain clothes. Many of his MTA uniforms were given to him by MTA retirees and he got others from a uniform store. He estimated that of the approximate five thousand MTA trains he had operated, passengers were aboard approximately four thousand of those trains. He had also operated over one thousand MTA buses; approximately eighty-five buses had passengers and he wore a uniform during those rides. He was not formally trained by the MTA. He had taken Long Island Railroad (hereafter “LIRR”) trains, without authority or permission, less than one thousand times. He operated “a couple of hundred” LIRR trains with passengers aboard; had taken passengers to stations that included Penn Station and Jamaica; and had made stops on the Babylon and Huntington lines (H: 18-19). He also claimed that on some occasions, he gave “keys to some New York City police officer[s], so they could ride for free on the Long Island Railroad” (H: 142).Mr. McCollum operated Metro North trains approximately “a couple of hundred” times with approximately eighty-five of those operations with passengers aboard the trains (H: 19). He operated both the LIRR and Metro North trains without wearing a uniform but “people that retire[d], used to give [him] their old uniforms” (H: 44). During his operation of a Trailways bus, Mr. McCollum was dressed “more so as a mechanic” (H: 39). He had also operated Amtrak trains, without permission and authority “about 120″ times (H: 20). Some of those trains had passengers aboard and some he operated solely in the train yard. The longest Amtrak route he operated with passengers aboard was from “[Greens]boro, North Carolina back to New York City, Penn Station” (id.). The Amtrak uniforms he had possession of were given to him by Amtrak retirees. Lastly, he drove “probably about 15″ trucks that did not belong to him and has also drove a tractor trailer (H: 66-67).Mr. McCollum believes that he is a safe driver and told multiple doctors that he was a safe driver (H: 21). He contended that he had never had any accidents or received any tickets. Upon further inquiry by the People, however, Mr. McCollum conceded that when he was eighteen years old, he struck something and left the scene without reporting it. He subsequently turned himself him to someone in the New York Police Department (hereafter “NYPD”) (H: 21-22). At some point in his life, Mr. McCollum obtained a North Carolina driver’s license. He admitted to getting a speeding ticket and paying for it in North Carolina but denied getting any tickets regarding improper use of a traffic lane (H: 23-26). He maintained that some time ago he had a license to drive a tractor trailer, however, upon further questioning, he admitted to telling a doctor that he only had a permit because he was training with his uncle. He also admitted to only having a permit and not a license (H: 27-28).Mr. McCollum drove buses with passengers aboard in inclement weather, including snow and rain, despite never having a license to drive a bus (H: 26-27). He drove MTA, Trailways and Greyhound buses on the streets and highways in the snow. Mr. McCollum recalled receiving warnings to drive safely when he drove a Greyhound bus in the snow. Specifically, drivers were cautioned “to use four ways, which [are] your hazard lights, and also drive in the right hand lane, abiding by speed restrictions that apply and also use your high beams, and of course your windshield wipers and so forth” (H: 32). While driving MTA buses, he received similar warnings on the loudspeaker by the superintendents or the dispatchers in the crew rooms (H: 33). Mr. McCollum acknowledged that is it more dangerous for him to a drive a bus in inclement weather, without a license and without any specific training, than a person who is properly licensed and trained. Although he knew it was more dangerous, he still drove the bus because “there was shorthanded staff because of the conditions that [applied], and [he] was acting in the matter that was presented” (H: 34). He also acknowledged that he put the lives of passengers at risk by driving a Greyhound bus on the highway in the snow. When asked about the most recent time he drove a Greyhound bus with passengers aboard in the snow and whether he had considered the fact that he should not be driving the bus in such weather, Mr. McCollum explained that he “had to convince [himself] that [he] could do it…[he] felt [he] could get it done” (H: 36). He also explained that he “was concerned for the passengers to get them to their destinations where they had to go” (H: 39). Further, when asked if he had ever considered the safety of the passengers who got on the bus with him, Mr. McCollum responded “at all times, yes” (H: 40).Some of the buses that Mr. McCollum operated were taken to JFK and LaGuardia airports. He drove flight crews to the airports approximately “twenty-five to thirty times at most” (H: 42). Mr. McCollum went to hotels, not specifically to wait for flight crews, and offered free rides to the airport if he overheard hotel staff talking about the unavailability of the hotel’s shuttle bus. He would park a bus “next to the hotel, on the street, or in the bus stop” (H: 43). Mr. McCollum seldomly spoke to the crew members and recalled taking a picture with only one person in uniform. He denied ever wanting to steal or operate a plane.When Mr. McCollum knew that he was going to operate a train, he prepared himself before leaving the house. Sometimes he carried a uniform “just in case [it was] needed” (H: 54). He also had MTA and Amtrak lockers throughout the city which held uniforms and other equipment. The lockers were inside train yards and train stations and he estimated that he had “maybe 12″ lockers throughout the city at some point in time. He claims that the main reason he operated trains was due to the fact that different employees called him and asked him to cover shifts for them. Somewhere “between, 2010 and 2015″ Mr. McCollum attended an MTA training session and was given his own set of keys to a prototype train (H: 115). Also, during that time, he read multiple train magazines which covered a variety of topics, including train upgrades.Mr. McCollum had a shield and an ID card from a Department of Justice agency but did not recall the specific agency. He had other novelty ID cards which included, “[o]ne that said counterterrorism home front security…one that said security consultant…military and the other one [he] had was from the CIA” (H: 63). He possessed various ID cards issued to him by multiple MTA employees and fake MTA IDs. He also had MTA ID cards that depicted his photograph which were duplicate ID cards that people used to make and sell. The three MTA ID cards Mr. McCollum possessed bore the titles: superintendent, visitor’s access control pass, and student. He had never tried to impersonate an NYPD, Amtrak or MTA police officer.Although Mr. McCollum spent a great deal of his life illegally “working” throughout the transit system, he has held some legitimate jobs. Those jobs included: messenger work, working in the fast food industry, construction, doing maintenance work, production processing work and working as a quality technician. In fact, until someone realized who he was, he worked for the MTA Museum for approximately four months in 1990. Out of his jobs, The MTA Museum was his favorite job. Interestingly, although Mr. McCollum was not an employee, he became involved in the politics of the MTA. He went to union meetings and advocated for better benefits and higher pay for MTA workers. Mr. McCollum was also on a special task force that was commissioned after the September 11th terrorist attacks in which he helped identify areas in the MTA that had the potential to give unauthorized people access to the transit system. The director of that task force, Investigator James Maxwell, wrote a letter on behalf of Mr. McCollum to a judge assigned to one of Mr. McCollum’s previous cases. Also, due to his multiple arrests, he has been admitted to psychiatric facilities. He was admitted to Valley Ridge Center for Intensive Treatment (hereafter “Valley Ridge”), a secured facility ran by the Office for People with Developmental Disabilities (hereafter “OPWDD”), where he was receiving mental health treatment as a condition of his probation. He was there “about 60 days” (H: 109). Mr. McCollum was “too high function[ing] for Valley Ridge” (H: 110). Eventually, he was discharged from the facility at the recommendation of “mental health legal services” before he received any treatment (id.).Instant CaseIn the instant case, Mr. McCollum rode a bus from the Port Authority to the Greyhound bus depot in Hoboken, New Jersey to “hang out on the bus, just to relax for a while, listen to the engine” (H: 100). He took a Greyhound vest with him on the trip. He wanted to go to the bus depot because the engine sometimes helps him fall asleep and he finds it calming. He arrived at the depot around ten in the evening in pouring rain. Mr. McCollum did not want to go home so he decided to stay on the Greyhound bus he eventually took from the depot. He turned on the engine and started the heat since he got soaked from the rain as he walked to the Greyhound depot. As more buses started driving into the depot, Mr. McCollum turned the bus’s engine and lights off so that no one could see that he was on the bus. At approximately twelve-thirty in the morning, when Mr. McCollum did not see anyone else at the depot, he drove the bus out of the depot to Queens, New York and parked it close to LaGuardia Airport.When he was eventually arrested, he was in possession of a fake Homeland Security badge which he claimed he ordered “from a company out of Coconut Creek, Florida” (H: 45). Mr. McCollum admitted that he was not a member of Homeland Security and stated that he got the badge mainly for discounts. He also admitted to showing the badge to a Port Authority employee when he was originally stopped on a bus there on November 8, 2015. On that date, he noticed there was a problem with one of the buses and informed a mechanic who asked him to go onto the bus to get a partition door that was broken. As Mr. McCollum brought the door off the bus, another employee approached him and asked what he was doing on the bus. Mr. McCollum tried to explain that a mechanic asked him to retrieve the broken door and eventually showed the employee the fake Homeland Security badge to show the employee that “[he] wasn’t [there] to cause any kind of damage or anything like that. [He] was just there to show that there was something wrong with the bus” (H: 47).Kirby Forensic Psychiatric CenterIn January of 2018, Mr. McCollum was sent to Kirby for an evaluation pursuant to his plea. He was there approximately ninety days. During his intake, he met with a doctor for approximately ten to fifteen minutes. The following morning, he met with Dr. Mortiere who was his treating psychologist and who led his weekly CPL §330.20 group sessions. Dr. Lanotte was also present during the initial meeting which lasted approximately ten minutes. Mr. McCollum recalled asking for individual therapy; he did not tell the doctors that he had a substance abuse problem. However, he was placed into a substance abuse group therapy session.Mr. McCollum attended his CPL §330.20 group session every Tuesday. “330.20 group was specifically for individuals who are 330.20, and, if you’re 330.20, you had to know why you were there, meaning that you’re not responsible for the charges that were committed, but she [Dr. Mortiere] says you’re not in your rightful mind if you committed the crime” (H: 309). The only other substantial interaction that Mr. McCollum had with Dr. Mortiere was during meetings with his treatment team which occurred “maybe like four, maybe five times” during his entire stay. The only group therapy session that Mr. McCollum enjoyed was the PTSD group which dealt with trauma where he was asked to describe the traumatic event he had at Elmhurst Hospital as a child. However, “[he] felt [he] had better improvement being in CBT [Cognitive Behavioral Therapy] on Rikers [Island] compared to being at Kirby” (H: 113). He had CBT five days a week while he was incarcerated at Rikers Island from 2011 until 2013 before he was sent to an upstate prison. The bulk of his remaining treatment at Kirby were group therapy sessions, including a group led by Dr. Lanotte. However, Mr. McCollum did not recall Dr. Lanotte being present for many of those sessions. The only one-on-one session he recalled having with Dr. Lanotte occurred after Dr. Cox and Dr. Ali’s interviews with him. Also, he only recalled Dr. Mortiere and Dr. Lanotte asking him about Dr. Pomeroy’s prior diagnosis and his involvement and passion for the transit system after he was seen by Dr. Cox and Dr. Ali. During that meeting, Mr. McCollum informed both doctors that he had the ability to tell them all subway stations in order if he had time to write them out.During his stay at Kirby, he mostly got along with two other patients. However, there was a time when Mr. McCollum put his hands around the neck of one of those patients during a game of dominos when he thought the other patient had cheated. Mr. McCollum described the incident as “goofing off” and giving “a demonstration as to in the jail setting, when you cheat, some people will take it more serious than [he] would and [he] was just telling [the other patient] what could happen” (H: 68-69). He was placed into “time-out” and eventually he and the other patient apologized to each other. Mr. McCollum also had another incident where he was engaging in a pillow fight with another patient and scratched the patient with is long fingernails. As a result of that incident, Mr. McCollum and the other patient were taken out of their room and were put into the main dorm area of the hospital.Mr. McCollum has been prescribed Zoloft since he was a child and an asthma pump. He admitted that while in Kirby, he was prescribed to use the asthma pump twice a day but he only used it once per day or as needed “because it’s always been told to [him] to only take it as needed” (H: 78). However, Mr. McCollum had taken all other medications as prescribed. Also, he asserted that he had never driven trains or buses while he was on medication. Mr. McCollum claimed that he received most of his medication while he was incarcerated and had not consistently been on Zoloft. He admitted to using marijuana “maybe once or twice a long time ago” and used to “drink only on social occasions” (H: 111). He denied ever operating any bus or train under the influence of drugs or alcohol.Due to Mr. McCollum’s multiple convictions for transit related offenses, he has been incarcerated for “approximately 21, 22″ years during different periods of his life (H: 296). During these periods of incarceration, Mr. McCollum had never been termed to be critically ill and did not receive ample mental health services. The longest time that he had gone without operating a train was “approximately six to maybe ten years at the most” (H: 65). From the time Mr. McCollum moved to North Carolina in 2007 up until the time he was arrested for this case, he operated “two, maybe three” trains (id.). However, he had operated over 150 buses during that same period. In March of 2008, he was arrested for criminal impersonation at the 59th Street-Columbus Circle subway station. In June of 2008, Mr. McCollum was arrested for trespassing in the subway station but says that he did not operate a train or bus. Mr. McCollum admitted that he kept going to the transit system after he was released because he “ha[d] trouble trying to control [his] impulses” and the previous treatment plans were unsuccessful (H: 328-329).In December of 2013, Mr. McCollum was released from prison to parole. The conditions of his parole were to seek employment, mental health treatment and educational resources. Specifically, he was to seek psychotherapy for substance abuse. Mr. McCollum violated parole by failing to report to his parole officer, staying out past curfew and leaving the state multiple times without permission. He went to North Carolina to visit his parents even though he knew the visits violated the terms of his parole. Nevertheless, he was not violated for not being enrolled in a treatment program. Also, he admitted that he operated trains and buses while he was on parole. Mr. McCollum worked with a social worker to help him apply for housing, social security benefits and food benefits. However, he was arrested on this matter before he could fully receive the benefits he applied for. He was not receiving mental health treatment while he was out.He is currently incarcerated at Rikers Island. Although he is incarcerated, he works every day in different capacities. He receives mental health services “basically about every two weeks” (H: 293). He speaks to a psychologist and psychiatrist approximately once a month and has received CBT. Mr. McCollum believes that CBT has been the most successful treatment option for him because it provides him with the opportunity to speak in front of people and think about the ways to avoid the transit system. However, Mr. McCollum is currently in a program called “A Road Not Taken” that specializes in substance abuse treatment although he does not have a substance abuse issue.Mr. McCollum now claims that he is willing to “do without it [his infatuation with trains] especially now that [he's] been incarcerated” and he recognizes that he should not continue his behavior (H: 146). He currently does not have any desire to operate a train or a bus. Specifically, he stated “[he is] working towards [himself] in the direction of not even thinking about driving a bus or a train” (H: 113-114). Mr. McCollum does not believe Kirby, or an upstate prison facility, will provide him the necessary treatment.Dr. Anthony LanotteDr. Lanotte, an expert in forensic psychiatry, was Mr. McCollum’s treating psychiatrist at Kirby. He has completed “hundreds” of CPL §330.20 examinations (H: 356). Upon Mr. McCollum’s admission to Kirby, Dr. Lanotte completed an admissions screening with Mr. McCollum which lasted “less than half an hour” (H: 418). He completed the intake form at some point during the week and did not have the form with him while he was meeting with Mr. McCollum. Before he completed his intake evaluation, reports were sent to him to review. He quickly “perused them to get an idea who [Mr. McCollum] was, but [he] did not extensively read them” (H: 419). He scanned through Dr. Goldsmith’s report and the discharge summary from the New York City Department of Corrections (hereafter “NYCDOC”), did not read Dr. Tarle’s report and did not review the medical records from Valley Ridge, the New York State Department of Corrections (hereafter “NYSDOC”), or other healthcare providers.During the initial screening, Dr. Lanotte was not aware of any history of Mr. McCollum physically or verbally assaulting anyone or criminal history involving violence. However, he reached the conclusion that Mr. McCollum had a history of aggressive behavior towards others. He admitted that he made several inaccurate notations in his initial evaluation notes of Mr. McCollum, including Mr. McCollum’s race, religion and patient identification number. He believes he may have copied and pasted information from a different patient’s report into Mr. McCollum’s records. He also admits that he inaccurately reported that Mr. McCollum had no history of trauma and failed to update the report when he learned that Mr. McCollum had been stabbed as a child. He used the 2003 version of the initial evaluation form although later versions of the form existed and claimed that the DSM-5 axis did not change the form.Dr. Lanotte explained that “a diagnosis is based on a myriad of symptoms which have been codified by the DSM-5″ (H: 364). Psychiatrist treat the symptoms because diagnosis change over the years. His initial diagnosis of Mr. McCollum was Obsessive Compulsive Disorder (hereafter “OCD”) and Major Depressive Disorder (informally known as “Depression”). The principal diagnosis at intake was depression which meant that it was the diagnosis that treatment was focused on. However, Dr. Lanotte admitted that he did not have the specific two-month period of the requisite symptoms of this disorder to diagnose Mr. McCollum according to the specific DSM-5 diagnosis code that he listed in his report. His OCD diagnosis was based on Dr. Lanotte’s discussions with Mr. McCollum about his behaviors; Mr. McCollum’s long history of taking trains and buses; and Dr. Goldsmith’s report. A person diagnosed with OCD is presented with an obsession that they try to ignore or suppress the feelings, urges, or images and neutralize them with some other thought or action which may include performing the compulsion. However, the DSM-5 warns that the obsessions must not be better explained by another diagnosis and specifically lists ASD as a diagnosis that may better explain the patient’s behaviors. Dr. Lanotte believes that Mr. McCollum’s symptoms are more likely caused by OCD because Mr. McCollum “think[s] about it [the transit system] often to the exclusion of other things” (H: 439).Shortly after Mr. McCollum’s intake assessment, the treatment staff at Kirby met with Mr. McCollum to develop a treatment plan. Mr. McCollum’s treatment plan indicates that he has a history of ASD and Asperger’s Disorder and that he would be referred to an outside clinic as needed. Dr. Lanotte explained that the team saw “more overt symptoms” of ASD and Asperger’s and “it might have been helpful to send [Mr. McCollum] to a specialized clinic, yes, but [they] did not” (H: 446). Dr. Lanotte does not have formal training in the treatment of ASD. Mr. McCollum was directed to see a psychiatrist, psychologist and social worker at least once a week and was assigned to various group therapy sessions. Kirby does not have group sessions specifically designed for people with ASD, developmental disorders or neurodevelopmental disorders. Mr. McCollum asked for individual therapy, however, patients are usually not assigned such therapy while being evaluated for 330.20 purposes, so Mr. McCollum did not receive individual therapy during his admission. Mr. McCollum was assigned to one of Dr. Lanotte’s group sessions. He recalled meeting with Mr. McCollum alone on at least two separate occasions for “perhaps 20 minutes to half an hour” (H: 451).Dr. Lanotte eventually read the reports from Dr. Cox and Dr. Ali regarding Mr. McCollum. He heard about the incident involving Mr. McCollum and the other patient over the game of dominos and it “was resolved without any acute intervention” (H: 371). The other patient had no physical injury and Mr. McCollum was not moved to another ward. Kirby’s protocol after a “serious incident” is to move the offending patient to another ward (H: 456). However, Mr. McCollum’s privileges were downgraded from a level three to a level one, which he could earn back. Dr. Lanotte was surprised that Mr. McCollum was involved in the incident since Mr. McCollum had been fairly cooperative, was following the rules and knew he was at Kirby for the purposes of the “dangerousness” evaluation.If Mr. McCollum was designated as Track 3, “wrap-around services” would not prevent him from re-offending. The idea of “wrap-around services” is the “philosophy of providing care to people usually on the outside with their families to integrate them back into community, to rehabilitate them in psychiatric services” (H: 374). These services would not help Mr. McCollum because “he’s not reached a level of insight and judgment that would allow him to avail himself of these services…he doesn’t see his mental illness to be so serious that he would need intensive care. I believe he would do better [in a] secure hospital, a secure, structured setting, for such services (H: 374-75). Mr. McCollum’s behavior “is very ingrained. It’s been going on since his teenage years. It’s unlikely that an outpatient service without the structure of the inpatient hospitalization would hold, would take” (H: 375). Further, Mr. McCollum has a very high chance of re-offending if he is not in a secured environment since he has had “35 years of such behaviors. He’s been in treatment. He’s been in hospital weeks, months, he’s re-offended. There’s no reason to believe he would suddenly change his behaviors after a few months at Kirby” (id.).Mr. McCollum’s statement that he does not currently have urges to operate a bus or train is indicative of his denial of his mental illness. Mr. McCollum has issues with understanding the difference between stealing or borrowing an item. Thus, he has little insight into his mental illness because “he’s minimizing the effect of his mental illness on his behavior, by saying he put the bus back, he would probably repeat the same behaviors again” (H: 379). “He admits to taking the bus, but sees it as borrowing and borrowing is not illegal” (H: 466-67). While Dr. Lanotte has concluded that Mr. McCollum shows traits of a thought disorder and may have had a conduct disorder in his early childhood, he never reviewed Mr. McCollum Elmhurst Hospital records reflecting his admission there as a child.According to Dr. Lanotte, Mr. McCollum currently meets the diagnostic criteria for Antisocial Personality Disorder (hereafter “ASPD”). Yet he never made any notes in Mr. McCollum’s Kirby records regarding this possible diagnosis. He also explained that a person could have concurrent diagnoses of ASD, OCD and depression. Mr. McCollum’s OCD and traits of ASPD are the predominate causes of his theft of buses and trains rather than his ASD diagnosis. Although Mr. McCollum had traumatic experiences during his childhood, Dr. Lanotte is unsure whether Mr. McCollum has PTSD. He also does not agree with Dr. Cox’s assessment that Kirby is not the appropriate long-term placement for Mr. McCollum.The appropriate treatment for Mr. McCollum entails a higher dose of Sertraline, “which is considered the front line for OCD” and “integrat[ion] into various groups in rehabilitative programs” (H: 389-90). Mr. McCollum was compliant with taking Sertraline but was reluctant with increasing his dosage from 100 milligrams to 150 milligrams when he arrived at Kirby. An OPWDD placement would not be appropriate for Mr. McCollum because he “fits the criteria for track one secure facility” since he is dangerously mentally ill (H: 396). Dr. Lanotte’s opinion is based on his review of Mr. McCollum’s medical records and psychiatric summaries, his own interactions with Mr. McCollum and Mr. McCollum’s criminal history. He further believes that Mr. McCollum:[h]as a mental illness. Has a history of acting out [sic] mental illness by stealing buses and trains, and some other behaviors. He doesn’t have a great deal of insight and judgment of his risk of relapsing into behaviors. He has engaged in behaviors and thinking which are, frankly, can be considered deceitful and manipulative, which would make him also high risk of repeating such behaviors(H: 397).Although Dr. Lanotte believed that Mr. McCollum is dangerously mentally ill, he admitted that he had never heard of Mr. McCollum causing physical injury to himself or strangers or having any accidents while operating buses and trains in the past. He conceded that most of the CPL §330.20 patients at Kirby are there for violent crimes. Dr. Lanotte believes that Mr. McCollum would eventually benefit from CBT. CBT is “group setting therapy where the patients are asked to think about their behaviors and to be able to identify dysfunctional behaviors with the hopes that they’d identify it as being dysfunctional, they can change it, and they do this repeatedly in groups” (H: 399). CBT would not be appropriate at this point because “you have to have a little better degree of insight and judgment into your illness you need for treatment…the therapy can be very intensive” (id.). Mr. McCollum currently lacks the insight to identify that he has a mental illness and the symptoms associated with it. If Dr. Lanotte were treating Mr. McCollum, he would recommend CBT once Mr. McCollum was “complying with medication…take the medicine everyday, even higher doses or different doses or different medication even. [He] would have to comply with all the groups, basically invest in the treatment…acknowledge that he’s made a very bad decision in life and does have mental illness, and could avail himself of a CBT group” (H: 400).Dr. Lanotte’s diagnosis of Mr. McCollum has changed since the initial assessment. He now believes that “the depressive disorder is probably more [sic] of a mood disorder rather than major depression. If [he] had done the discharge summary [he] believe[s] [Mr. McCollum] does fit the criteria for antisocial at least for treating, it’s not [sic] diagnosis” (H: 464).Dr. Marc TarleDr. Tarle, an expert in forensic psychiatry, has examined approximately three hundred-fifty patients pursuant to CPL §330.20 and is currently in private practice. He examined Mr. McCollum on behalf of the People both before and after Mr. McCollum’s plea. The difference between a psychiatrist and a forensic psychiatrist, which is “a psychiatrist is somebody who [diagnoses] and treats psychiatric disorders. A forensic psychiatrist is someone who understands psychiatric disorders and treatment and applies knowledge to answer a legal question” (H: 475). His first evaluation of Mr. McCollum was on August 31, 2017 and the second was on May 3, 2018. The purpose of his first evaluation of Mr. McCollum was “with regard to the issue of criminal responsibility with regard to a bus he had taken from the Greyhound bus depot in New Jersey and also impersonating an officer of the law. The second evaluation was with regard to the issue of dangerousness as to whether he had a dangerous mental disorder” (H: 477).In addition to evaluating Mr. McCollum, Dr. Tarle also reviewed “police reports and the indictment, Grand Jury synopsis. [He] looked at reports from the defense psychiatrist, past medical psychiatric reports, the Kirby psychiatric records, the Rikers Island mental health records. Reports from 330.20 evaluations performed at Kirby psychiatric” (H: 478).He concluded that Mr. McCollum suffers from ASD. Dr. Tarle explained that “there are two core symptoms with [ASD], two major categories that allow you to make the diagnosis and it involves [sic] the first is persistent severe social deficits with interaction and communication. So, how you interact with people both verbally and nonverbally and how you communicate with them…The second major category is the repetitive restrictive behaviors, interests and activities…that an individual with autism will have” (H: 480). The activities could be divided into “low level activities such as twirling or smelling an object or lining them up and they have then lower level activities such as memorizing train schedules or license plates or engaging in activities that involve greater amount of cognition and more completion behaviors” (id.). Dr. Tarle emphasized that there is no medication to treat ASD but there are some medications that can help “treat the symptoms as best as you can and manage the patient” (H: 481). He has treated “at least several hundred” patients with ASD in multiple settings and in his own practice he has diagnosed patients with ASD and managed their medications for their symptoms, but he does not oversee their therapy. He developed his interest in working with patients with ASD when he was working at the Developmentally Disabled Service Organization, which is an OPWDD organization that treats individuals with developmental disorders and ASD.He diagnosed Mr. McCollum with ASD because:[h]e has symptoms of both, core symptoms. There was the repetitive behaviors and interest and activities involving the transit system since childhood, according to some of the records since around the age of five and certainly after 12 or 13 there was a persistent involvement with the transit system, thinking about it, learning, executing when he was younger, talking to people that worked in the transit system. Starting in his adolescence he started to drive trains and buses and later on, especially after 1997 he described repeatedly taking trains and buses for rides(H: 484). Next, “[t]here is a big difference between [ASD] and [OCD]” (H: 481). “ With OCD there may be repetitive behaviors, but the individual profoundly dislikes their symptoms. They’re tortured by their symptoms. They are embarrassed by them. They give them great discomfort and they rather stop them. With [ASD] the opposite is true. There is a sense of fulfilment. There is a harmony. There is an attachment to it. There is a sense that the individual…gets a severe joy and satisfaction out of it. So, the behaviors may superficially look similar, but the psychological reaction is very different” (id.). Another difference between the two disorders is that some OCD patients, over time, may respond well to antidepressant medications however, that “same treatment will not fix the repetitive behaviors” with ASD (H: 481-82). Further, although Mr. McCollum displays Narcissistic traits and ASPD traits such as “criminal behavior and arrest, stealing, putting individuals in danger,” Dr. Tarle ruled out ASPD because “although he’s had antisocial behavior, it doesn’t fulfill the criteria for an antisocial personality disorder. You have to have a persistent disregard for the rights of others across a [broad] spectrum, not just one area, over a number of years” (H: 542-43; 555). Mr. McCollum is “a complex case” which is why Dr. Tarle believes that his diagnosis is different from that of Drs. Goldsmith and Lanotte (H: 556).“[T]here is no treatment that will make [ASD] go into remission” (H: 482). Behavioral therapy has been most helpful in early childhood intervention programs, but the “older a person is and the less motivated they are, the less likely that behavior treatment is going to be effective” (H: 483). Treatment of ASD will be accompanied by multiple failures but “you have to keep trying until you find some combination of treatment that makes a difference” (id.). However, even with a combination of treatment alternatives, sometimes the most improvement someone will have is “a reduction of suffering and maybe an increase in functionality” (id.). Further, “to a degree you could also do behavior therapy or you can refer somebody to self-help groups or you can refer them to vocational training, all the trappings of fixing things around the disorder in the hopes of those things will have an impact, but again with behavior therapy you have to have a patient that recognizes their disorder…an adult that will accept the treatment willingly and go along with it” (H: 483-84).After Dr. Tarle evaluated and diagnosed Mr. McCollum, he concluded that Mr. McCollum is dangerously mentally ill as defined under the statute. During Mr. McCollum’s first evaluation, he “glowed when he was asked about the transit” and had a great sense of joy taking buses and trains. Yet he had “a lack of empathy for the experience of the individual on the bus or train that he was driving” (H: 486). Dr. Tarle further explained:Now, when I say a lack of empathy I don’t mean to imply that Mr. McCollum is callous or doesn’t care about human suffering, I believe he does. When I say a lack of empathy I’m talking about an inability to put himself in the shoes of another person and really experience, really understand what that person is feeling. So, when you ask him what were the experiences of the riders on the buses or trains that he took he really can’t comprehend that there would be anything wrong with what he was doing, that they will feel at risk that they might be frightened about a family member that might be on the bus driven by an unlicensed, untrained individual. And so long as the trains are on time what difference does it make who was driving them was a comment he said. He felt that it doesn’t cause anybody any harm, basically he felt there was no big deal to what he was doing and he knew it was against the law(H: 486-87). Mr. McCollum was unable to understand the potential emotional or physical impact he could have on others when he took these vehicles. However, Dr. Tarle’s first report indicates that “the Mr. McCollum was asked about the possibility of an accident, considering that he is not a trained driver. He answered realistically, explained that he was always concerned about having an accident, such as a multi-car accident or going off a bridge” (H: 541).Mr. McCollum also blatantly ignored prior conditions of parole and probation, apparently ignored repeated requests by his wife of ten years to stop the behavior and continued taking vehicles against the wishes of “family…friends…the legal system” (H: 488). He thought about the transit system “85 percent of the time. He says he tried to stop. He can go about a month and then the urge is too great, he has to do it again” (id.). However, Dr. Tarle did not follow up with Mr. McCollum to compare how much he thought about the transit system while he was incarcerated as opposed to when he is out in the community. He also did not inquire as to whether medication or employment changed the amount of time Mr. McCollum thought about the transit system.Further, Mr. McCollum did not understand the risks he posed as an untrained train operator because he believed he was a safe driver. “He had never had an accident. He had spent an amount of time speaking to various transit personnel and had absorbed a lot of material, a lot of knowledge. He kept updating his knowledge he said by talking to new people and learning new things. Therefore, he felt he [was] qualified to as somebody who was hired by the Transit Authority” (H: 489). Dr. Tarle believed that Mr. McCollum knew he risked incarceration and still did things to violate previous conditions of probation and/or parole because of “his rigid sense of what was right or wrong” (H: 488-89).In contrast, when he re-evaluated Mr. McCollum approximately eight months later, “his emotional tone was different, he was superficially bright” (H: 490). “The most striking thing about it was that his attitude had totally changed about how he saw himself as being dangerous. He said that he was not qualified to drive a bus. He said it was dangerous for him to use a train or any major forms of transportation because he was not trained and not an employee” (id.). He further said that seeing trains and buses on television had no impact on him. Of significance was Mr. McCollum’s self-assessment that he no longer had any urges to operate a bus or a train. Dr. Tarle found this to be “questionable in terms of his being candid because when you have a 35 to 40-year habit of being involved in something it does not go from 85 percent to zero overnight” and it simply was not a credible statement (H: 490-91). Dr. Tarle concluded that Mr. McCollum was either not telling the truth and just saying what he believed was the right answer or maybe, “for that fleeting minute maybe he believed it, but it was transient” (H: 497).Mr. McCollum minimized his obsession with the transit system, claimed that he was only taking trains to cover for other employees and went back and forth about whether he was banned from the transit system. Unlike the first evaluation, Mr. McCollum said she saw the risks associated with his behavior. They discussed how Mr. McCollum faked suicide attempts to manipulate the staff members to let him have his way and manipulated various situations by impersonating various officials. Mr. McCollum “has the capacity to manipulate mental health individuals for what he wants” (H: 493). Mr. McCollum’s constant use of manipulation “goes against treatment” because “if you’re trying to minimize what’s going on you’re not really engaged in treatment. It shows lack of insight…lack of commitment to the process…it just flies in the face of what we are trying to accomplish” (id.). Although there were no severe injuries, the Kirby incident over the dominos game was a significant event. Mr. McCollum initially minimized the incident then eventually agreed that if this had happened outside of the hospital setting, he could have been charged with Assault. Dr. Tarle further concluded that “this is what you’re up against, somebody who is rigid and inflexible and in denial and has limited insight with regard to his behavior” (H: 495). Mr. McCollum has superficial insight into his disorder and “he doesn’t have the knowledge at this point to genuinely accept that he has this illness that needs to be treated…[h]e feels if he just says the right words [that] would be accepted and that things will go on and he will get by just as he has gotten by for many years” (H: 496).As to Mr. McCollum’s future, Dr. Tarle believes that if Mr. McCollum is released “he would likely [integrate] himself with the people who are supervising him, tell them what they wanted to hear and then go about his business” (H: 498). Dr. Tarle does not agree with New York State Office of Mental Health’s (hereafter “OMH”) opinion that Mr. McCollum does not suffer from a dangerous mental disorder and he does not agree with Dr. Cox’s suggested order of conditions since it will not prevent Mr. McCollum from reoffending. He believes that “once the dangerousness has been mitigate[d]” the suggested “ wrap-around services” Dr. Cox recommends would be “a great plan” (H: 500). However, even with “all those services, unless you had a policeman 24/7 at his elbow, [they] would not stop him from re-offending at this time” (H: 501). It will take some significant time to figure out a treatment plan that will work for Mr. McCollum. An outpatient order of conditions would not keep the community safe because without direct supervision, Mr. McCollum will continue his behavior which becomes more dangerous as he gets older and his faculties start to weaken. Also, depending on the kind of prescription for his symptoms, he may have side effects that impact upon his ability to operate the buses and trains. Furthermore, since Mr. McCollum is now more well known in the transit system more people will be able to recognize him, and this may result in greater anxiety and lead him to make mistakes while attempting to operate trains and buses. Dr. Tarle admitted that he identified risk factors that were not the traditional factors used for CPL §330.20 purposes and believes that Mr. McCollum has a very high likelihood of reoffending and being noncompliant with treatment if he is released. A comprehensive program and monitoring will not be effective. Mr. McCollum is a physical danger to himself and others. However, his second report indicates that “while he is not directly physically violent others, his behaviors, unchecked, can lead to physical injuries of others” (H: 512). He concluded that Mr. McCollum belongs on Track 1 because he has a dangerous mental disorder; and “because when an untrained, unlicensed person drives a bus or train it’s a recipe for disaster where there can be a significant accident, where multiple individuals can be hurt…or even killed” (H: 506).If Mr. McCollum were designated as Track 2 and sent to a non-secure facility, Dr. Tarle agreed that if security procedures in place were functioning properly “that would check his behavior in terms of he would not be able to get out of the hospital to steal a bus” (H: 515). A non-secure psychiatric facility is “a civil hospital which treats people with mental illnesses, who have disorders that cannot be treated as an outpatient” and a “secure facility has greater security, has greater treatment going on, has forensically trained individuals and has a program geared to treating forensic individuals with forensic problems” (H: 549). Also, the programming in secure facilities aim to address the treatment of dangerousness. Mr. McCollum is not ready for a non-secure facility because there is a risk that he would run away from the facility if he is “given any level of privileges at this point” (H: 550). Dr. Tarle is aware, however, that the rate of patients absconding from non-secure facilities is extremely low.Dr. Tarle is concerned that Mr. McCollum could be discharged from the facility without a court order, but he acknowledged that the facility would have the same scrutiny for Mr. McCollum as a Track 2 patient as it would for a Track 1 patient before discharging him back into the community. Dr. Tarle was unable to predict if Mr. McCollum would pose a physical danger to anyone else in a non-secure hospital but he noted that Mr. McCollum posed a physical threat during his stay at Kirby. He maintained that this was still a significant event even though no one was hurt during the incident; Mr. McCollum did not have to be treated with medication to calm him down after the event; he was not restrained; and no patient had to be moved to another unit.In New York City, “there are many psychologists who are suited to treat autistic patients” (H: 523). However, typical ASD treatment would not work on Mr. McCollum. Since Dr. Tarle did not agree that Mr. McCollum is Track Two, he rejected the suggestion that a case manager, in conjunction with a full day program, and with a supervised residence would help suppress Mr. McCollum’s behavior since it stills leave gaps of unsupervised time. Even with small such gaps, Mr. McCollum would find ways to beat the system (H: 528). Currently, employment would not play a role in keeping Mr. McCollum out of trouble as he has not had any substantial treatment and has mostly had brief periods of treatment while he was incarcerated.His treatment at Kirby was not tailored to his needs but rather to that of a general forensic patient. Although Kirby physicians diagnosed Mr. McCollum with disorders other than ASD, “he probably would still get very good treatment, because their understanding of the set of symptoms is the same” (H: 564). There may have been a difference in diagnosis since he had records that extended further back into Mr. McCollum’s past than the staff at Kirby. Behavioral and individual therapy could be helpful for Mr. McCollum but not in an outpatient setting. If Mr. McCollum was released with an order of conditions and violated the order, Mr. McCollum could refuse to abide by certain conditions and the recommitment process could be lengthy. However, nothing prevents the District Attorney’s office from quickly filing recommitment applications.Kim GibbsMs. Gibbs is senior director of training at the New York City Transit Authority and trains “conductors, train operators, dispatchers, and train service supervisors” (H: 570). A “conductor is in the middle of the train, operates the doors, and the train operator is [in] the front of the train and operates the train” (id.). To become a train operator, an applicant must pass a written test, and then undergo a full medical examination which includes: “drug screening, hearing test, vision test, and a psychological test”, as well as a “sleep apnea test” (H: 571). The applicant is also subjected to a full background check. If the applicant passes those tests, they then enter the operator training program.The train system is divided into two divisions: A and B. The A division consists of the numbered trains 1-7 and the B division consists of the lettered trains A-Z. The A division has ’85 days of training plus two months to operate the yard” and the B division has “one hundred ten days of training, plus two months in the yard” (H: 572). During the first week of training for the A division, trainees are in “preliminary training, substance abuse. They get track safety…safety mask training. They meet the union” (id.). The classes are then broken up into smaller groups with ten trainees and two instructors to go through equipment and the rest of training. Each day is divided into classroom time, which is approximately two to three hours and the rest of the day consists of field time. Some of the classroom topics include: equipment familiarization, undercarriage of the train, troubleshooting, flagging on the track and how to start the train. Trainees spend at least four hours each day on the train.Of the eighty-five days of training, forty-four consist of classroom and field training, and ten days of train operations in the train yard with another qualified train operator and two supervisors. She described the train yard in Jamaica, Queens with a “barn and several tracks in the yard. It has four ways to go in and out of the yard…trains are always entering in transit” (H: 597). However, trains in the yards that the trainees use do not have passengers aboard and trainees also prepare trains for service by troubleshooting them. Trainees then spend two months in the yard working by themselves moving empty trains. After two months in the yard, they do two weeks of “night road operations with two instructors…that means that the train operators go on every line, so they can learn the routes, to learn how the train operates, and to make station stops” (H: 575-76). There are still no passengers on those trains. Upon completion, for the next twenty-one days they “road post each line at least three days and start to pick up passengers, but they are still under supervision” (H: 576). Upon completion of that portion, they return to main training, take their final examination and their road practical. During the duration of the entire training program, trainees take seven quizzes, a midterm exam, a final exam and an “YX exam” which is the yard extra exam taken after they complete the train yard portion of training. They also take three practical exams, two before going to the yard, and then the final road exam where they operate trains “between ten to fifteen stops per student” under the supervision of a manager and two supervisors (H: 578). If they pass the exam, they complete the course, but if they fail it, they are not allowed to retake the exam and they fail the entire course.The B division has a similar training process; however, it is much longer since there are more trains lines in the division. The classroom portion is fifty-five days because of the variety of equipment that is operated in this division. The trainees for either division must pass a signal exam and signal practical before they can go into the yard. They must answer all the questions correctly or they fail out of the course. Once they pass the exam, they become operators and must take a refresher course every three years. They must have a medical exam every year to test for issues, including hearing problems, as well as screening for drugs or alcohol. She acknowledged that an audit on the training program done in March of 2018 found, inter alia, that MTA was not in compliance with the requirements of the induction training curriculum established for its train crews; and train operators and conductors were not always meeting and completing train operation requirements.Ms. Gibbs explained that “if there are going to be any route changes for the train operators or conductors, we have something called general order[s], where we put out a notice that’s placed on a bulletin board to let you know that…there are some changes on your route for the day” (H: 580-81). These are posted in the crew rooms and could also include information regarding planned construction on the route which would cause a train to either be rerouted on have to reduce its speed. They do not give instructions over the radio and do not tell operators where to stop along the route. If someone must call in sick from a shift, there are standby employees that “sit at a location waiting” to take over the shift (H: 582-83). Employees are not allowed to call another employee personally to take over a shift since the MTA needs to know who is operating each train, “who’s doing what, and to make sure that you are qualified to be in that particular type of equipment” (H: 583). In other words, you cannot operate a train that is not within your assigned division.As to the actual operation of a train, one would need a reverser and a brake handle to start some of the trains, but one may need more tools depending on the train one is operating. While keys are required to board the train, depending on the type of trains in service, one key may open them all. If there is an accident on one of the trains that causes an injury or death, the operator “would have to go for drug testing…. meet with system safety in management…do a full investigation of what occurred, why it occurred, who was responsible” and the National Transportation Safety Board could get involved (H: 583-84).The MTA also investigates “simple incidents” which can include station overruns and train operators forgetting tools. Ms. Gibbs is only notified of incidents if they involve a probationary employee. She does not believe “it would be safe for anyone to operate a train that he is not fully qualified to operate…[they] put customers’ lives in jeopardy. [They] put [their] own [lives] in jeopardy, if [they] don’t know what [they're] doing” (H: 584-85). This is especially true if a train operator could not pass the psychological exam. Furthermore, hearing problems are pertinent since operators may sometimes have to walk on the tracks and would need to hear emergency sounds. Although operators can have hearing aids, they first must go through “special ADA testing…to make sure that you can pass [their] hearing test” (H: 586).The MTA requires that any operator who misses thirty days of work in a row to undergo medical testing and those who miss more than ninety days of work are sent back for retraining. Employees are also required to inform the MTA if they are taking medication so that the MTA could ensure that the medication does not affect their ability to operate the trains.Dr. Catherine MortiereDr. Mortiere, an expert in forensic psychology, had completed approximately fifty initial CPL §330.20 exams, all of which she designated as Track 1. She was not formally assigned to examine Mr. McCollum for CPL §330.20 purposes but was part of his treatment team at Kirby. She was his psychologist, Dr. Lanotte was his psychiatrist and Mr. Li was his social worker. The team met with Mr. McCollum for about an hour the morning after his admission to Kirby to get a sense of him and the reasons for his presence there. During this initial meeting, they asked “him questions, why he was [t]here, why he thought–why he took the plea, what he thought his mental illness was, [sic] things of that nature, things that target, [sic] what he might think are risk factors for dangerousness and violence. That’s what the treatment team treats him for, even in an exam stage, we treat them with the understanding that’s they have some type of dangerous[ness] necessary” (H: 632-33). Mr. McCollum’s answers to some of her questions “indicated [that] he ha[d] a lack of insight into his behavior” (H: 633). She further explained that he had trouble distinguishing between the concepts of “borrowing” and “stealing” as it pertained to his theft of buses. Mr. McCollum told the team that he had autism and that there was a documentary about his life. Dr. Mortiere eventually watched the documentary and some other interviews with Mr. McCollum. She thought that he felt proud, boasted and minimized the danger of his behavior. He thought of his crimes as “victimless” and that they were not dangerous since he obeyed all the traffic laws, and he did “not believe he hurt anyone” (H: 636).After Mr. McCollum’s initial meeting, the team created a treatment plan that was signed by the entire team. The first goal of Mr. McCollum’s treatment plan “was to delve inside into his criminal history and [sic] mental illness and…risk factors for dangerousness” (H: 637). Dr. Mortiere believed that his risk factors at admission were “his lack of insight into the seriousness of his criminal history, the seriousness of taking trains and buses without being an employee of MTA or any other institution of which he stole a bus or train and the importance of understanding that can be dangerous…understanding his illness” (H: 638). She further explained that the team’s working diagnoses were OCD, depression, antisocial traits and narcissistic personality disorder.Since Mr. McCollum was at Kirby for a CPL §330.20 exam, he was placed into and generally participated in her forensic issues group. The group covers various topics including “risk factors for dangerousness, how you judge your thinking by minimizing things” (H: 639). He was placed into other groups as well. His request for individual therapy was rejected because such therapy is for more long-term treatment and Mr. McCollum was initially only there short-term.Although Mr. McCollum was quiet when he was first admitted to Kirby, he eventually talked openly that he enjoyed and knew he needed to be there. He also made friends easily, which Dr. Mortiere construed to be inconsistent with ASD. She admitted, however, that she had very little training on ASD and rectified that by watching an unnamed movie and read materials to try to get a better understanding of it. Mr. McCollum had three main friends at Kirby and one of them was the person he had the physical altercation with during the dominos game. Dr. Mortiere spoke to that patient personally and he told her that after Mr. McCollum squeezed his hands around his neck, he could not breathe for a moment; the event was scary to the patient. Mr. McCollum tried to apologize to him. She met with Mr. McCollum who initially denied the allegations then eventually stated “I choked him, but he didn’t die…look, I love the guy to death. He’s my buddy. I love him to death” (H: 650). This represented another example where Mr. McCollum took a long time to understand the seriousness of his actions.At the time of her investigation, she was unaware of Mr. McCollum’s history of admitting to offenses he did not commit, including purportedly setting the fire at his group home. Further, she believed that this was a serious event because “not only the harm he could have caused [the other patient], but in the situation he’s in, we rarely see someone who’s a 330 exam engaging in physical violence. They know they’re under scrutiny, they’re under an exam stage, they’re being examined by three doctors who are going to make a determination whether someone [is] dangerously mentally ill. So it’s serious on a lot of levels” (H: 651). However, she did not create an incident report of the event after her investigation nor did she include many of the details of the event in her progress notes. She originally stated that Mr. McCollum received a timeout for his behavior but then later claimed that the timeout was not in fact for that specific incident; she did not say why he was in timeout (H: 723-24). After the incident, the treatment team went back into Mr. McCollum’s history to see if there were any other incidents where Mr. McCollum minimized his role, since minimization is consistent with someone with his disorder. Thus, they “looked at his history of violence a little bit differently than [they] had previously,” including his involvement in the bar fight (H: 651-52). She read Dr. Goldsmith’s report, but she did not review Mr. McCollum’s Valley Ridge or Department of Corrections records.Mr. McCollum had “[a] certain type of thinking that indicated he had a dangerous mental disorder” (H: 655). She also agreed with Dr. Ali that the likelihood of him reoffending is high because:He is highly invested in the behaviors that he has repeated over his lifetime since a very young age. He justifies his behavior and minimizes it and fails to see the danger involved towards both himself and other people. He does not feel the need for extensive treatment, from what he told me and our team. He doesn’t believe he needs that type of extensive treatment. His mental outlook on his entire history is–you know, I’ve learned my lesson, I’m done doing that, but it doesn’t have substance. It lacks substance and he lacks insight into all those things that create this mindset(id.).If Mr. McCollum were kept in a secure facility under Track 1 he could progress. She rejected Dr. Cox’s findings due to the failure to consider Mr. McCollum’s “physical danger” and to revise her report once she learned of the dominos incident. If Mr. McCollum is not in a secure facility, certain triggers would contribute to his likelihood of reoffending, including being around trains and buses and unemployment. His behavior is indicative of OCD and he needs to be in a “structured maximum security environment” such at Kirby where he could receive intensive treatment that may include “20 hours of programming a week in addition to treatment team meetings and individual therapy and also specialized groups, if needed” (H: 657-58). Doctors in this environment also can seek an order from the court to medicate a patient over his or her objection.Mr. McCollum’s symptoms overlap with other disorders which make it difficult to diagnose him. Dr. Mortiere has never formally evaluated his intellectual functioning but has read multiple records which suggested that he had limited intellectual functioning. His symptoms of ASD may have been more pervasive to other prior doctors but she did not believe that they are pervasive enough now to diagnose him with ASD. Mr. McCollum is a liar, deceptive, manipulative, irresponsible and has a blatant disregard for the rights of others which she attributes to ASPD. Further, his previous “supervision failure” is a factor in her determination that he has a dangerous mental disorder, especially considering the fact that he removed an ankle monitor that was previously placed on him (H: 664-65).If Mr. McCollum were released with an order of conditions, he would re-offend. It is unrealistic for Mr. McCollum to say that he now has zero thoughts of trains or buses since he had only been treated at Kirby for approximately three months. Rather, he is “parroting” because he knows he is being examined and wants it to appear as if he is getting better (H: 666-67). Indeed, after reading Dr. Tarle’s second report about Mr. McCollum, Dr. Mortiere noticed that he was parroting “almost word for word things that [she] had said to him” (H: 667). However, he missed some of the key components of the things she discussed with him, such as all the training it takes to become an MTA operator. She believes that his behavior was reinforced by previous MTA employees who allowed him to operate the trains alone. He has also received a lot of attention from his documentary and the press, all of which has contributed to his traits of narcissistic personality disorder including his “grandiosity, the exaggerated self-importance” and “sense of entitlement” (H: 670). He gets what he wants through manipulation and has even faked suicide attempts to get the results he wanted under certain circumstances.If Mr. McCollum were sent back to Kirby, his treatment plan would consist of a forensic issues group, Dialectical Behavior Therapy (hereafter “DBT”), possibly CBT or cognitive remediation and a substance abuse group. DBT is therapy designed to “help people with inner personal effectiveness and emotion release” (H: 675). Although she admitted that Mr. McCollum’s discharge summary indicated that his diagnosis at discharge was “major depressive disorder, moderate, and OCD”, she believes that a substance abuse group would be helpful since it deals with addictive and obsessive behaviors (H1: 76). However, she emphasized that treatment plans can change over time and the goal of any plan is to mitigate his risk factors for dangerousness so that he could be transferred to a non-secure facility.She rejects the proposed orders of conditions presented by Dr. Ali and Dr. Cox and only spoke to Dr. Cox after her initial meeting with Mr. McCollum. Mr. McCollum needs to be Track 1 in a secure facility since “he has historically not done well in other setting with supervision, with conditions. He needs a change. Whatever he has done in the past 53 years, whatever has been done has not worked…He needs a change in setting. He needs intensive inpatient treatment” (H: 688). A Track 2 civil facility will not help Mr. McCollum because “civil hospitals do not focus on dangerous mental disorders, they may not even know what it is. Their focus is to integrate people to the community, that’s their focus. That’s their prevention plan, get them into the community” (H: 689). Dr. Mortiere hopes that if Mr. McCollum is treated as a Track 1 patient at Kirby or Mid-Hudson, he will eventually move to Track 2 and get transferred to a civil facility.As with Dr. Lanotte’s testimony, Dr. Mortiere’s cross-examination exposed some inaccuracies in Mr. McCollum’s Kirby records. Defendant’s Exhibit C, which is a single page from People’s Exhibit 1, is entitled “Rehabilitation Assessment-Part I” and is dated “01/03/2018,” a date proceeding Mr. McCollum’s admission to Kirby. Dr. Mortiere explained that the date was a typographical error, but the information contained therein was correct. Yet, the form also incorrectly states that Mr. McCollum has a “history of alcohol abuse. He is diagnosed with Schizoaffective Disorder, Bipolar Type” (H: 705; Defendant’s Exhibit C). Dr. Mortiere admitted that Mr. McCollum has never been diagnosed with any of those disorders and does not have a history of alcohol abuse. Further, she acknowledged reading the portion of Dr. Cox’s report which indicated that another patient’s diagnostic and historic information was contained in one of Mr. McCollum’s Kirby records.⁴ However, she failed to rectify the mistake. Also, a progress note contained within the Kirby records incorrectly lists the medications that Mr. McCollum was taking at the time of admission and erroneously indicates that Mr. McCollum “will be evaluated by the treatment team every two years to discuss his discharge from [Kirby]” (H1: 26). Other inaccuracies to Mr. McCollum’s Kirby records include progress notes written by registered nurses who indicated that Mr. McCollum had no “ standing medications” approximately a week after his admission and listed him as a female, which is one of the identifiers nurses look at when distributing medication to patients (H1: 24-25; 38). Prior to meeting with Mr. McCollum, Dr. Mortiere created an admission note which incorrectly states that the team “will work with Mr. McCollum on issues related to dangerousness until which time he is found no longer DMD and [can] be discharged to a different facility” (H1: 27). She admitted that not only did she write and sign the note, she knew that this Court had not yet made a determination as to Mr. McCollum’s dangerousness. She claimed, however, that patients sent to Kirby for CPL §330.20 purposes are already considered dangerous by virtue of their plea. Additionally, Dr. Lanotte entered inaccurate information into his admission note. For instance, he incorrectly indicated that Mr. McCollum would be “observed for changes in mental status and behaviors to determine fitness to proceed,” however, Mr. McCollum was not at Kirby pursuant to a CPL §730 examination (H1: 31-32).Furthermore, Dr. Mortiere explained that the purpose of a treatment plan is to “memorialize the treatment team’s plan for what each discipline is going to do, the groups [they] are going to hold and the treatment they’re going to receive” (H1: 39). The treatment leader types up the plan and the entire teams signs the plan. Yet Mr. McCollum’s treatment plan is fraught with mistakes: incorrect patient id number; incorrect date of birth; incorrect date of admission; misstating that Mr. McCollum has a history with “aggression, substance abuse treatment and noncompliance;” identifying him as a patient who was found to have a dangerous mental defect; inaccurately listing that Mr. McCollum has issues with delusions; incorrectly stating on the discharge plan that “patient’s psychiatric symptoms must be alleviated to such an extent that he is deemed no longer dangerously mentally ill in order to be transferred to a civil facility” and listing “August 15, 2018″ as his anticipated discharge date (H1: 41-45). Dr. Mortiere had the opportunity to review the treatment plan before signing off on it and claims that she read it before signing it. She agreed that designing a treatment plan using another patient’s information is problematic but claimed that she did not have the ability to correct Mr. McCollum’s records. Specifically, she stated “we can’t fix them. They are medical records that are no longer in our purview. They leave when the patient leaves. We are not allowed to correct them. We can write a new note, but we can’t correct them” (H1: 50). She further claimed that she no longer could make a note to his records since he is no longer at Kirby but agreed that these incorrect records would follow Mr. McCollum in the future.B. Mr. McCollum’s CaseDr. Amina AliDr. Ali, an expert in psychiatry, was one of the psychiatrist assigned to evaluate Mr. McCollum for the purposes of determining whether or not he has a dangerous mental illness or is mentally ill pursuant to CPL §330.20. This was her second CPL §330.20 evaluation and she was supervised by two other doctors who had no opinion as to the outcome of the evaluation. Prior to beginning the examination, she researched the meaning of dangerousness in a book that she has on the law regarding CPL §330.20 issues. She did not meet with Mr. McCollum’s treatment team but reviewed Mr. McCollum’s “past hospital or treatment records, incarceration records, police records, and previous reports that were written, and these records were reviewed to get a better understanding of what has happened in Mr. McCollum’s past, as well as what happened at the time of the instant offense” (H: 172). She then met with Mr. McCollum, while defense counsel Butler was present, at Kirby on February 8, 2018 and February 22, 2018. The first meeting was “about four hours and the second meeting was about three hours” (id.). Dr. Lara Cox was also present during these meetings since the CPL §330.20 evaluations are done “by two independent evaluators. So [they] meet with [patients] together for those purposes” (H:173). However, each evaluator is expected to form their own opinion as to the ultimate issue of whether Mr. McCollum has a dangerous mental illness.During Dr. Ali’s initial evaluation of Mr. McCollum, she conducted a “Mental Status Exam” which “basically describes [sic] what the patient looks like…[Mr. McCollum] was calm and cooperative. His eye contact was fair, but he would shift his gaze around the room which is consistent with an Autism diagnosis. He didn’t display any psychotic symptoms, delusions or paranoia or auditory or visual hallucinations. And he also did not have thoughts of wanting to hurt himself or others” (H: 201-02). Dr. Ali noted, however, that he did have issues “understanding right from wrong, understanding borrowing from stealing, and that is consistent with the diagnosis of [ASD]” (H: 202). His thought processes were rigid and inflexible when exploring the concept of borrowing versus stealing, however, it had no bearing on whether or not he had a dangerous mental disorder.Dr. Ali diagnosed Mr. McCollum with ASD. She explained that ASD is a neurodevelopmental disorder that “can include a person that has social deficits or lack of communication or interaction with others, as well as diminished affect and emotion, and they also have a fixed interest,…in either object or activity” (H: 174). ASD is what was previously known as Asperger’s Disorder or Autism Disorder. Depending on the patient, ASD is usually treated with “therapy and social skills, if there are anger issues or aggression issues, then sometimes medications are used to control those…taking the aggressive issue aside, it would be treated in an outpatient setting” (H: 178-79). In contrast, if a patient with ASD exhibits aggression and it is difficult for the family to tolerate the patient’s behavior, then the patient would usually be treated in an inpatient setting. Additionally, people diagnosed with ASD have different levels of functioning. “Some patients with [ASD], where they are nonverbal and can’t communicate at all. Also some of those patients aren’t able to take care of themselves, so that would be one extreme, and there [are] patients who have mild [ASD] who take care of themselves, able to communicate in some sense. They may still have some deficits, but that would be on the milder spectrum” (H: 185).Dr. Ali diagnosed Mr. McCollum with ASD because he “has a history of fixation with the subway system and bus system in New York City, and this started in his childhood. So that would be the part to fulfill the fixated interest. And he also has a history of lack of relationship, and difficulties interacting with other people, as well as showing affect in emotion” (H: 175). Due to Mr. McCollum’s ASD, “he continues to be fixated on the subway system and buses and trains, and so you know, without therapy it is difficult for him to understand why he shouldn’t be doing the thing that he has done in the past” (H: 176). ASD could make one a physical danger to others if the person has impulse control issues or aggression. However, although Mr. McCollum has impulse control issues with respect to taking transit vehicles, his impulse control issues are not “physical or violent in nature” (id.). Furthermore, Mr. McCollum’s level of functioning “is adequate in a sense that he is able to take care of himself…take showers, dress, eat” which is “pertinent in a sense that if a patient is unable to do some of those things or has symptoms of aggression, it would play a part in their physical harm to others or themselves” (H: 185).Additionally, Dr. Ali considered whether Mr. McCollum suffered from ASPD. She explained that a person with ASPD “is a person who engages in activities, usually illegal activities and has no remorse for engaging in these activities and also doesn’t consider the feelings of others” (H: 191). ASPD was a diagnosis that she considered “because a lot of his actions, you know, just looking superficially could be listed under that criteria” (id.). Although she agreed that Mr. McCollum has lied and used deception and/or manipulation to steal buses and trains, she ruled out ASPD since she did not believe that Mr. McCollum was stealing buses and trains with no regard for others and for his own personal gain. Rather, he stole because of his fixation with the transit system. Dr. Ali further ruled out ASPD because the criteria for the diagnosis “doesn’t include fixations, it doesn’t include deficits in communication or interaction and so those don’t fall under antisocial personality disorder at all and are in autism spectrum disorder” (H: 231-32).The extent of Dr. Ali’s experience in secure psychiatric facilities is the one-month period she spent at Kirby during her second year of residency. During that time, she had “maybe 10″ patients and she did not recall any of them having ASD as their only psychiatric disorder (H: 179-80). The majority of her patients at Kirby were diagnosed with schizophrenia or bipolar disorders. The non-secure psychiatric facilities that she has worked in are Bronx Lebanon Hospital and Bronx Psychiatric Center, where she had treated thousands of patients (H: 183). Bronx Lebanon Hospital is an example of an “acute stay hospital…those usually consist of an ER or psychiatric ER, and adult and sometimes child and adolescent inpatient units” (H: 181). Bronx Psychiatric Center is a long-term non-secure psychiatric facility where patients are “usually sent there from various settings, usually [sic] when [they're] in an acute stay hospital and their symptoms are not manageable or they’re resistant to treatment, they are transferred to a long term facility, and they can also be there from an order CPL 330.20″ (H: 182). The predominant psychiatric diagnosis seen there were Schizophrenia and Bipolar Disorder. Although it is a non-secure facility, patients are unable to freely walk out of the facility, but she admitted that there is a possibility that patients can abscond from the facility.At Bronx Lebanon Hospital, which is an acute care facility, the predominant types of mental illnesses that she treated patients for were Schizophrenia, Bipolar Disorder and Major Depressive Disorder. However, she treated “about 10″ adults and “maybe 30″ children whose only psychiatric diagnosis was ASD but who usually showed aggression at home and had nowhere else to go (H: 184).Mr. McCollum’s treatment at Valley Ridge was relevant to her evaluation because “in order to be admitted to a facility like that, they first have to acknowledge the fact that the patient has a diagnosis that would allow him to be admitted there, meaning a neurodevelopmental diagnosis. And it was also relevant because during his stay, they did numerous tests and there is documentation that his functioning was too high in a sense to be in [that] facility…once somebody gets to a point where they’re able to manage their symptoms to some extent, and no longer a danger they’re transferred or discharged to an outpatient facility” (H: 186). Although those diagnostic tests showed “his daily functioning level was adequate” it also showed “deficits in his social communication” (H: 201). Also, she concluded that Mr. McCollum’s re-arrest shortly after his discharge from Valley Ridge was in part caused by the fact that “he was discharged with no followup treatment” (H: 221).Mr. McCollum’s ASD does not make him a physical danger to himself or others because “there has been no evidence that he has been a physical danger to others” or himself (H: 187). To her knowledge, “he has [n]ever physically harmed anyone” and she is only aware of “one bar fight, as he called it” (H:190). Mr. McCollum self-reported the incident and there “was no other collateral to either state that there was something that happened, there was no arrest record” (H: 215). Her report mentions that he also self-reported that he was accused of setting a fire in his group home, but she did not have any information as to whether or not Mr. McCollum was accused of setting previous fires at the home. That information could have had bearing on her diagnosis of Mr. McCollum. His lack of history of violence was significant to her evaluation “a lot of the information gathered is looking at how he has been a physical harm in the past, and since he hasn’t, that is something that was a big part of the evaluation” (H: 190).Dr. Ali learned of the dominos incident after she had completed her report. However, it would not change her opinion that Mr. McCollum had no history of violence since she did not “have enough information to know exactly what happened in that incident” (H: 216). She admitted that she did not attempt to gather more information about the event because she did not “think that one incident [was] relevant” since she is looking for “a pattern of behavior” (H: 216-17; 234). Dr. Ali further explained that the incident was “not a behavior that has been repetitive over time. Speaking generally about patients with mental illness and psychiatric diagnoses, they always have some risk and that risk can progress to be managed within inpatient facilities to outpatient facilities with still some risk there” (H: 261). However, she indicated that facts of the incident as presented by the People “could” be significant enough to put in the report but later admitted that “it [was] a significant event” (H: 218-19; 261).Since Mr. McCollum has a significant history of unauthorized use of trains and buses “there is a potential that something could happen, however given his track history, nothing has happened for [her] to say that he is definitely a physical threat to others” (H: 190). Furthermore, “he spoke about following the rules of the road…sitting up high on a bus…having the ability to see what’s going to happen ahead, driving slow, following speed limits” which bears on the dangerousness evaluation because it “takes into consideration that he is trying to be careful while he’s engaging in these behaviors…it also shows he has impulse control…while driving buses” (H: 204). She made the determination that Mr. McCollum was a safe driver based on her interview with him and the records she had at the time. During the interview, Mr. McCollum told her that he had never been in an accident, but she later learned that he had been in an accident. She agreed that knowing when it was unsafe to drive such as in inclement weather could be a factor as to whether or not a person is a safe driver. The operation of a heavy vehicle which is expected to carry passengers, for which the operator did not know the mechanical history and without the proper license, could be a dangerous activity.Mr. McCollum’s judgment was “fair” because “he had some understanding that what he had done in the past was wrong, and that he was not looking to engage in these behaviors again in the future” (H: 194). Mr. McCollum’s insight, or his ability to “reflect on what’s going on. Whether they have a mental illness, what treatment they need” was also “fair” since “he understood that he had a mental illness and he understood that he needed treatment” (H: 194-95). To that end, she recalled Mr. McCollum saying that “he did not want to continue engaging in his behavior, and he really needed help” (id.). Mr. McCollum’s recent statements of not having any urges to take buses and trains, however, is indicative of “his difficulties in communication and deficits in social communication. He’s being taught about what he needs to say and he doesn’t completely understand the difference between going from one extreme to the next” (H: 243).Furthermore, it was “significant that he had a history of poor relationships growing up, as well as being in group homes growing up” (H: 195). She also considered the fact that past records show that “he fell into a low average IQ range” (H: 196). His employment history was “pertinent to see what he was interested in, how long he was able to hold a job for and where his functioning was impaired because of his illness” (id.). Specifically, she concluded that “he enjoyed jobs that were somewhat related to the transit system, and that’s when he would stop engaging in behaviors. When he didn’t have a job, he would kind of resort back to the subway system” (id.).Of significant importance to Dr. Ali was Mr. McCollum’s history of trauma. This information was pertinent in treating him in the future because “depending on what setting he is in, there could be certain triggers for him”…”being in a hospital as a child and being assaulted may, if he gets admitted later on in a hospital and has a reminder of that situation, could trigger him to show some emotion in some sense” (H: 197-98). His psychiatric hospitalization records from his childhood “indicated a lot of symptoms that would fit the criteria for [ASD]” and his previous antipsychotic and antidepressant medications have not prevented him from engaging in his behaviors which indicates that they are not the right medications for him (H: 199-200). Finally, Mr. McCollum’s lack of substance abuse history also was considered by Dr. Ali.Dr. Ali completed an “HCR-20″ assessment, which is a violence risk assessment, using the information she learned from Mr. McCollum and records in her possession. It “takes in numerous factors and [tries] to understand the risk of the patient” (H: 203). Mr. McCollum’s overall risk for violence was low. She did not believe that he suffered from a dangerous mental disorder or a mental illness as those terms are defined in the CPL. However, “there’s a high likelihood that without treatment he could reoffend” (H: 247).Dr. Ali’s ideal treatment plan would consist of “close monitoring” by community agencies that include “outpatient services that would include some sort of therapy, social skills [building groups] and supervision…somebody who is able to have constant contact with him, help him get to appointments and help him look for activity, other activities to do” such as a “hobby or a vocational activity that he could engage in” (H: 187-88; 197; 240). Mr. McCollum would “need to go to therapy multiple times a week” and “there are places that do therapy three to five times a week” (H: 188; 240). This plan is different from parole or probation supervision “[b]ecause this is actually targeting his mental illness” (H: 240). Mr. McCollum would not abscond from treatment, even without around the clock supervision because “he has gained some insight into the need for treatment” and has “some improved insight to his actions and some understanding into that they are now wrong and will play a part with the supervision and treatment to help him not reoffend” (H: 241; 269). While idle time “could potentially be a problem…he does again have periods where he hasn’t engaged in these behaviors and during those periods he wasn’t in any treatments at all. So [she] think[s] that this treatment is going to minimize his want to engage in these behaviors as well as he’s now able to verbalize that he needs help. [She does not] think he knew even maybe two years ago that he needed any help” (H: 271). Also, a supervised residence could help with his supervision need “especially because some of them do track when people are coming in and out and insure that they’re going to their appointment[s] and engaging in treatment” (H: 274).Additionally, other treatment options would include CBT and Applied Behavioral Analysis, which is “positive reinforcement for actions of the patient and it also brings in social skills building as well” (H: 188). In conjunction with the group sessions, Dr. Ali believes Mr. McCollum would need an individual therapist to help him with working on his social skills “because he has a history of having difficulties interacting and understanding social cues” (H: 189). His lack of social cues has contributed to his obsession with taking trains and buses because “as a child when people were encouraging him or not stopping him from doing these things, this led him to believe that it was okay, and because he didn’t understand, you know, certain social cues, this was difficult for him going, proceeding through life to understand that these things were not the right thing to do” (id.). Mr. McCollum does not require inpatient services in a psychiatric facility because he does not have any “dangerous qualities at this time that would be treatable in an inpatient setting” and “inpatient psychiatric setting is not the correct setting to treat somebody with a neurodevelopmental disorder” since “they don’t have the resources to treat somebody with Autism Spectrum” (H: 193). “[H]e requires services from OPWDD…because…they are the facilities that treat neurodevelopmental disorders, he would be best treated by them with their diagnosis” (H: 195).Dr. Lara CoxDr. Cox, an expert in psychiatry, was the second psychiatrist assigned to evaluate Mr. McCollum for the purposes of determining whether or not he has a dangerous mental illness or is mentally ill pursuant to CPL §330.20. This was her first CPL §330.20 evaluation. She reviewed various records from many sources including items given to her by Ms. Butler, spoke with Mr. McCollum’s mother and spoke with Mr. McCollum’s treatment team to get “a full, rounded picture and not relying on any one source too heavily” while conducting her evaluation of Mr. McCollum (H: 762). She also met with him twice; on February 8th and February 22nd, 2018; Dr. Ali and Ms. Butler were present at these meetings and Ms. Butler made comments during the interviews. The first meeting was approximately four hours long and the second was approximately three hours long.Dr. Cox conducting a mental status examination of Mr. McCollum during both meetings. She noted that:[h]e missed social cues at times. There were times when he expected us to know information because he knew it. So because he knew it, he assumed that we knew. Couldn’t kind of imagine that we didn’t. He used a number of words and phrases idiosyncratic way. Would say so hey or well hey, as if it explained something…his sense of time is not great. He will sort of tell a story out of order. He often kind of digresses from one topic to the next something that’s related, but not in a chronological order to what it is that he’s telling you about beforehand(H: 782-83). This was consistent with the diagnostic criteria for ASD and Attention-Deficit/Hyperactivity Disorder (hereafter “ADHD”).She further observed that his level of insight was in some ways good and in other ways limited. He knew that he had a problem and needs help but was not too knowledgeable about the exact diagnosis. Dr. Cox believed that he may have issues “given the mixed messages that he’s gotten from treatment providers” (H: 785-86). Despite not knowing the exact details of his disorder, Mr. McCollum “was willing to comply with treatment, really invested in the idea of doing so. And his judgment in that regard is very good” (H: 786). After meeting with Mr. McCollum, she met Dr. Lanotte and Dr. Mortiere to obtain their diagnostic impression and sense of risk of Mr. McCollum. Dr. Lanotte believed that Mr. McCollum had OCD and Depression and Dr. Mortiere did not believe that he had ASD but instead was just “repeating a phrase that he had read or heard somewhere, rather than truly sort of believing the question of stealing versus borrowing” (H: 789-90). Dr. Mortiere also expressed that she strongly believed that Mr. McCollum was antisocial.Dr. Cox found a number of Mr. McCollum’s childhood experiences to be significant to her evaluation including: “his development of language, his interaction with other children over the course of his life, his interactions with the Transit System [infatuation] with vehicles that has been sustained since he was a very small child, there is also information about his performance and behavior at school; and also a history of trauma that occurred when he was a child” (H: 764-65). He had been “bullied very severely from the time he was a small child. He was stabbed with a [pair of] scissors by a classmate at the age of 11. And then sexually assaulted within a year in an inpatient setting. There’s also some evidence in his medical records from jail to suggest that there was also bullying going on in that environment as well” (H: 780).She found Dr. Pomeroy’s evaluations of Mr. McCollum to be very helpful since he had the most experience with Mr. McCollum dating back to 1981. Dr. Pomeroy is also considered an expert in Asperger’s Disorder and played a vital role in developing the diagnosis. Many of the observations she made of Mr. McCollum had been described in some of Dr. Pomeroy’s prior evaluations. She also indicated that Mr. McCollum’s prior hospitalizations were “very limited. He had three hospitalizations before he was 25, and after that his contact with mental health was very intermittent and usually when incarcerated” (H: 768). Dr. Cox reviewed Mr. McCollum’s 2009 records from Valley Ridge and observed that they did a very extensive evaluation on Mr. McCollum and found him to be functioning higher than majority of the patients there. She thought it was significant that, instead of escaping, Mr. McCollum properly petitioned for his release when he thought he was not receiving the appropriate treatment. After reviewing the Kirby records, Dr. Cox opined that he was not getting the proper treatment there as well since they did not diagnose him with ASD and were treating him for OCD. Many of the group therapy sessions that Mr. McCollum was placed into were “largely tailored to people with serious and persistent mental illness, like psychotic disorders or major mood disorders like bipolar” (H: 777-78).When reviewing Mr. McCollum’s prior employment history, she noticed that when Mr. McCollum had “jobs that either involved machinery or related to the Transit System in some way…those are times where he doesn’t engage in the same Transit related behaviors as he does otherwise” (H: 766). As such, Mr. McCollum working toward future employment in areas that he is most interested in will be a vital part of his treatment. His records and interviews indicated that he had very limited relationships, “outside of his marriage and outside of his relationship with Ms. Butler and the director of the documentary film, he has almost no social connections” (H: 767). This meets one of the criteria of ASD. When reviewing his criminal history, she noticed that “none of it is violent and all of it is Transit related in some way” (id.).She also considered his incident at Kirby and found that it was not evidence of a dangerous mental disorder since it is documented in his records as if it were not a serious incident. She explained that the initial note did not mention physical contact; there were no incident reports in the records although OMH has a strict policy to report physical incidents; and there were no physician notes detailing the incident. Although she did not believe the incident was violent, she did believe that Mr. McCollum’s claim that it was a joke was reflective of his failure to grasp the inappropriate nature of his actions. However, she contended that although she learned of the incident after the report was already completed, it would not have changed her opinion since she concluded that his overall lack of violence was significant to her evaluation. Dr. Cox also spoke with Mr. McCollum about his prior history regarding setting “small things” on fire but she did not follow up as the circumstances of those instances (H1: 97).His history of suicide attempts was also not significant to Dr. Cox because they were never considered real attempts by Mr. McCollum or the mental health providers at the facilities; and Mr. McCollum told her he never had any real intention of killing himself. She completed a risk assessment and considered the risk of injury or property damage as it pertained to Mr. McCollum’s behaviors and noted that “there is the sort of risk of the behavior in the abstract. Then there was the sort of history of whether or not this has caused harm to somebody or to himself” (H: 815). Dr. Cox concluded that Mr. McCollum did not pose of risk of harm to himself or to others.Dr. Cox diagnosed Mr. McCollum with ASD, PTSD and ADHD. He met the diagnostic criteria for ASD due to his lack of relationships; issues with non-verbal communication; his lack of the ability to pick up on another person’s feelings; his inability to understand the difference between stealing and borrowing; and his restricted interests and repeated behaviors. Dr. Cox also observed that Mr. McCollum lacked the ability to “make nuanced moral judgments” and “cannot understand sarcasm” (H1: 132). ASD is a neurodevelopmental disorder that does not automatically make one a physical danger to other people. It cannot be treated with medication but some of the symptoms associated with it can be treated with medication. Common treatment options for patients with ASD are social skills groups, behavioral therapy or CBT which are designed to find ways to replace problematic behaviors with those that are less so.As to her diagnosis of PTSD, Mr. McCollum has a history of intrusive thoughts about the stabbing incident; avoids any conversations about the sexual assault; is always monitoring his surroundings; and has trouble sleeping. His PTSD does not make him a danger to others or himself. She diagnosed him with ADHD based on some historical information and his current difficulty with planning and executing behaviors, as well as his focus and attention to matters.Dr. Cox also considered and ruled out a diagnosis of intellectual disability due to Mr. McCollum’s childhood evaluations, but she did not perform formal IQ testing on him. She ruled out OCD, ASPD and Depression since his symptoms and behaviors were better explained by her diagnoses. She further noted that the treatment for all these other diagnoses are completely different from the treatment options for her diagnosis.Dr. Cox ultimately concluded that Mr. McCollum does not suffer from a mental illness and as such, should be designated as Track 3 pursuant to CPL §330.20. However, she believes that if he were released with no treatment or support that he would have a high likelihood of re-offending. An inpatient psychiatric hospital would not be an appropriate setting for Mr. McCollum’s treatment since it would “likely interfere with his ability to participate in the therapy or to benefit” because it is “a major trauma reminder” of when Mr. McCollum was sexually assaulted in a hospital as a young child (H: 779). ASD and PTSD are usually treated on an outpatient basis unless the patient is “so severely aggressive that they can’t be managed safely” on an outpatient basis (H: 799). Kirby does not have the ability to appropriately treat Mr. McCollum for ASD because “people who work in the OMH system have often very little experience working with people with autism…that means that [sic] sort familiarity, the ability to provide tailored treatment for somebody with autism isn’t there in an OMH facility” (H: 818-19).One of the main goals of treatment for Mr. McCollum is to shift his focus from the transit system but it may be helpful to allow him to work with machinery in some capacity or at the transit museum. It is her opinion that “the likelihood that you channel that interest into an alternate route is far more likely to be effective than to simply expect it to go away” (H: 844). Since Mr. McCollum has not had significant treatment in the past, that may have contributed to his supervision failures. Dr. Cox agrees with Dr. Lanotte’s assessment that Mr. McCollum needs a higher dose of Sertraline but differs as to the reasons. Thus, she believes he needs the higher dose to treat his PTSD and not OCD. This higher dosage would not have any effect on Mr. McCollum’s interests for trains or buses. Nor would it impact whether or not he is going to become dangerous. Mr. McCollum needs outpatient “wrap-around” services which would include:[m]edication management and sort of behavioral and cognitive behavioral therapy…also include housing…vocational support to help him find an outlet for sort of his need for meaning and belonging. It would include building social skills and social supports that he has people to reach out to in the community. It would include helping him find ways to get around the city that don’t sort of put him or anybody at risk…supervised either group homes or single residence occupancy…that would provide supervision, that staff there 24 hours a day…and then he could step down to a lower level of supervision over time(H: 828-29). To address the gaps of time where Mr. McCollum may not be engaged in any services, Dr. Cox suggested using a 24-hour aide provided by OPWDD, filling gaps with enjoyable activities and having meaningful relationships with people who would help during those times. She further believes that Mr. McCollum needs a long-term to lifelong treatment to help with his behaviors. However, she repeatedly emphasized that Mr. McCollum’s needs could be met with a specialized order of conditions on an outpatient basis.III. CONCLUSIONS OF LAWThe People argue that the Court should find that Mr. McCollum has a dangerous mental disorder and should be committed to Track 1 mental health services (People’s Motion at7). They further contend that due to Dr. Ali’s and Dr. Cox’s inexperience with CPL §330.20 examinations, they “failed to address public safety when they crafted their ideas of the best treatment plan for the defendant’s well-being” (id. at 9). The People maintain that the testimony from their witnesses, including Mr. McCollum, demonstrate that his “current mental status and superficial insight into his need for psychiatric care and treatment, as well his very minimal and only just developing insight into his prior history of compulsive transit-related crimes, make him still dangerously mentally ill” (id. at 11). Indeed, the People urge that the defense has failed in its burden to overcome the presumption of dangerousness that enured once Mr. McCollum took his plea.⁵The defense avers that the Court should adopt the opinions of Dr. Ali and Dr. Cox and find that Mr. McCollum should be placed on Track 3 (Defense Summation at 2). They further argue that Mr. McCollum’s testimony exhibited his “easygoing demeanor” which “will serve him well in complying with the treatment plan and supervision requirements of an order of conditions (id. at 11). They emphasize that Mr. McCollum’s admission to Kirby proved that a secure facility is an inappropriate placement for him since Kirby did not have treatment options that were tailored to Mr. McCollum’s needs. Lastly, the defense argues that given the given the numerous inaccuracies in Mr. McCollum’s Kirby records, the court should reject both Drs. Lanotte’s and Mortiere’s testimony. To that end, they maintain that such testimony “calls into question whether Kirby is really prepared to provide high-quality psychiatric services” to Mr. McCollum (id. at 21).The Insanity Defense Reform Act of 1980 (L 1980, ch 548) was passed by the Legislature and was subsequently codified to amend CPL §330.20 (see, 1981 Report of N.Y.Law Rev.Commn, Appendix A, The Defense of Insanity in New York State, reprinted in 1981 McKinney’s Session Laws of N.Y., at 2251). “The amendments were prompted by concern both that the convicting court lacked continuing supervision over the acquittee, and that once committed, acquittees are constitutionally entitled to essentially the same treatment as involuntary patients generally (Matter of Jill ZZ, 83 NY2d 133, 137 [1994]). “The Act was structured to strike a balance between public safety and the individual rights of the acquittee, and was intended to increase the court’s involvement in postverdict supervision of insanity acquittees” (In re Norman D., 3 NY3d 150, 154 [2004]).Under the statutory scheme of the Act, after a person who is found not responsible by reason of mental disease or defect, the Court must “conduct an initial hearing to determine the defendant’s present mental condition” (CPL 330.20 [6]). At an initial CPL §330.20 hearing, the burden is on the People to prove, by a preponderance of the evidence, that the defendant either has dangerous mental disorder or is mentally ill (People v. Escobar, 61 NY2d 431, 439-40 [1984]; In re Sheldon S., 9 AD3d 92, 95 [2d Dept], lv denied 3 NY3d 608 [2004]). A person has a dangerous mental disorder if they currently suffer from a “mental illness” as defined in the Mental Hygiene Law and “because of such condition he currently constitutes a physical danger to himself or others” (CPL §330.20 [1][c]). A mental illness is “an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation” (Mental Hygiene Law §1.03 [20]). A person is mentally ill when he “currently suffers from a mental illness for which care and treatment as a patient, in the in-patient services of a psychiatric center…is essential to such defendant’s welfare and that his judgment is so impaired that he is unable to understand the need for such care and treatment; and, where a defendant is mentally retarded, the term “mentally ill” shall also mean…that the defendant 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 mentally retarded and developmentally disabled under the jurisdiction of the state office of mental retardation and developmental disabilities (CPL 330.20 [1][d]). “Although the word ‘dangerous’ does not appear in the statute, the constitutionally required element of dangerousness to oneself or others is subsumed in the language of the provision” (Matter of David B. 97 NY2d 267, 277 [2002]).“If the hearing court determines that the defendant has a dangerous mental disorder (track one), it must issue a commitment order placing him in a secure psychiatric facility for a period of six months” (Sheldon S. at 95). “If the court finds that the defendant does not have a dangerous mental disorder but is mentally ill (track two), the court must issue an order of conditions and an order committing him or her to the Commissioner’s custody…[t]he commitment order is deemed to be made pursuant to the Mental Hygiene Law, which governs the further retention, conditional release, and discharge of a track two defendant. Finally, if the court concludes that the defendant does not suffer from a dangerous mental disorder and is not mentally ill (track three), it must discharge him or her, either unconditionally or subject to an order of conditions” (id. at 96). An order of conditions is a court order directing the defendant to comply with his or her treatment plan or any other condition that the court finds to be reasonably necessary or appropriate (CPL §330.20 [1][o]). The order of conditions is valid for five years from the date of issuance, however, the court may extend it for an additional five years upon a showing of good cause (id.).Preliminarily, this Court accepts the defense’s invitation to disregard the testimony of Drs. Mortiere and Lanotte from Kirby as it relates to their opinion regarding Mr. McCollum’s dangerousness. It is shocking to this Court that Mr. McCollum’s file, including the Treatment Plan, upon which all of the treatment staff at Kirby relied, from its inception was fraught with inaccuracies (see infra 22; 44-46), including information related to other patients. The notes reflected, inter alia, that there had already been a finding of dangerousness made, thus the team would “work with Mr. McCollum on issues related to dangerousness until which time he is found no longer DMD and [can] be discharged to a different facility” (H1:27); that Mr. McCollum had a “history of alcohol abuse. He is diagnosed with Schizoffective Disorder, Bipolar Type” (Defense Exhibit C; H: 705); that another patient’s diagnostic and historic information had been in Mr. MCCollum’s file; and even that Mr. McCollum had been sent to Kirby for a CPL §730 examination. Given that their opinions were premised on their interaction with Mr. McCollum and that of the remaining staff, all of whom utilized such information as part of their Treatment Plan for Mr. McCollum, this Court rejects their opinion.The first issue is whether Mr. McCollum suffers from a mental illness. In this case, this Court agrees that Mr. McCollum’s primary diagnosis is ASD for which, as Dr. Tarle explained, “there is no treatment that will make it go into remission” (H: 482). All the experts agreed that Mr. McCollum has a very high likelihood of re-offending if he is not properly treated. Mr. McCollum has great difficulty understanding the difference between borrowing and stealing and does not seem to understand that he engages in activities which all the experts agree are high risk. Furthermore, he has very limited insight into his mental disorder and his judgment is not sufficient in order to be released into the community without any additional treatment and support. He is unable to understand the potential emotional or physical impact he could have on passengers, whom he believed he was helping by getting them to their destination, given his opinion that he was a safe driver. And the notion that he no longer has any urges to operate a bus or train is simply not credible. Indeed, it may be that he is currently saying what he believes demonstrates his greater insight into his illness. It may also be that his ASD creates communication deficits which cause him to repeat things said to him about his condition and behaviors, without really understanding the underlying concepts, such as when he parroted things said during Dr. Mortiere’s CPL §330.20 class to subsequent evaluators. Under these circumstances, the Court finds that Mr. McCollum suffers from a mental illness.Next, in Matter of George L. (85 NY2d 295 [1995]), the Court of Appeals outlined the factors a court may consider to determine whether someone is suffering from a dangerous mental disorder warranting confinement in a secure environment. The People may meet their burden “by presenting proof of a history of prior relapses into violent behavior, substance abuse or dangerous activities upon release or termination of psychiatric treatment, or upon evidence establishing that continued medication is necessary to control defendant’s violent tendencies and that defendant is likely not to comply with prescribed medication because of a prior history of such noncompliance or because of threats of future noncompliance” (id. at 308).⁶As to dangerousness, this case is unusual in that it does not fit neatly within the factors enumerated in Matter of George L. For instance, Mr. McCollum does not have a history of relapses into violent behavior. It is a fact that Mr. McCollum has never been treated for his ASD. The consensus is that treatment, which is predicated on behavioral therapy and medication which may be used to treat some symptoms, is most effective with a younger person and should begin in childhood. Thus, it is not surprising that given his obsession with trains and buses, which began during his childhood, that he has an extensive criminal history predicated on the theft of these items. The only evidence of violent behavior was Mr. McCollum’s dominoes incident while he was at Kirby. Although he originally denied the accusations, he admitted that he placed his hands around the other patient’s neck because he thought he had cheated. However, the Court notes that the records from Kirby do not detail a serious event. There are no notes to suggest that the other patient was physically injured, or his airways blocked, the other patient did not require medical treatment, the treatment team “chose not to do an incident report,” there were no notifications made to OMH about the incident, and Dr. Mortiere gave conflicting testimony regarding disciplinary action taken against Mr. McCollum (H: 695; 723-24).People’s Exhibit 2 includes a progress note dated April 17, 2018, the same day as the dominoes incident, that details a verbal altercation that Mr. McCollum had earlier in the day with a different patient. The note written by “M. Hare SHTA” alleges that Mr. McCollum was the aggressor, refused a timeout and approached the other patient with a balled fist but the writer was able to intervene. No information was elicited during the hearing about this alleged incident. Although there was some testimony about Mr. McCollum’s self-reported “bar fight” that he had some years ago in North Carolina, there was no evidence presented to corroborate the incident or to suggest that Mr. McCollum had a history of getting into altercations with strangers. Specifically, upon reviewing Dr. Cox’s report, Dr. Tarle’s evaluation indicates that “none of the available evidence suggest that Mr. McCollum has a history of unprovoked physical violence” (People’s Exhibit 4 at 5).As to Mr. McCollum’s history of suicide attempts, every doctor concluded that none of the reported attempts were actually aimed at killing himself; rather they were attempts to manipulate the staff. Furthermore, the evidence at the hearing established that Mr. McCollum does not have a substance or alcohol abuse problem. Nor is there a real issue with failure to comply with prescribed medication because Mr. McCollum would only take his asthma medication “as needed” rather than twice a day or hesitation to increase the dosage of his other medication.Most of the testimony adduced at the hearing described situations where Mr. McCollum had periods of time following incarceration or stays at a psychiatric facility where, upon release from those institutions, he went back to stealing trains and buses. All of the witnesses agreed that Mr. McCollum’s repetitive behavior of operating buses and trains is a dangerous activity since he does not have any formal training operating these vehicles, especially with passengers aboard. However, it is clear from the record that Mr. McCollum had never received adequate mental health treatment either while he was incarcerated nor during his past two inpatient admissions at Valley Ridge and Kirby. There is also no evidence of adequate post-release mental health treatment even while he was on parole and probation. As such, upon reviewing the evidence presented at the hearing, the Court does not find that Mr. McCollum has a “history of prior relapses into violent behavior, substance abuse or dangerous activities upon Release or termination of psychiatric treatment” (Matter of George L. at 308).Yet the fact is that Mr. McCollum has admitted to stealing 5000 trains and over 1000 buses; he has stolen freight trains (one of which he operated from Tennessee to New York); passenger trains with passengers; buses, with passengers; subway trains (4000 out of the 5000 MTA trains taken had passengers); LIRR trains; AMTRAK trains (about 120 times with the longest route from North Carolina to Penn Station, New York); METRO NORTH trains; hotel shuttle buses to the airport; trucks; and one tractor trailer. He has operated them in snow and rain. And he has not had the proper training to operate those vehicles. He is a 53-year-old man with hearing loss; ironically likely resulting from the amount of time he has spent around trains. As it stands now, given his lack of insight and judgment into his mental illness from which he suffers, and because of such condition, he poses a danger to himself or others. Accordingly, this Court finds that the People have met their burden to demonstrate that Mr. McCollum should be designated as Track 1.This Court is well aware that the law, as it now exists, appears to be aimed at or at least has been utilized with respect to those who have committed violent crimes or threatened to do so. As such, this Court calls upon the legislature to consider looking at the overall track designations to address the issue raised by someone with Autism or Autism Spectrum Disorder as they interface with the criminal justice system. Similarly, while the secured facilities, which primarily house violent offenders, develop treatment plans aimed at patients who, for instance, are schizophrenic or bi-polar, treatment of someone like Mr. McCollum will undoubtedly require a change from the usual and expertise in the area of ASD. To that end, while the Court disagrees with the opinions of Drs. Ali and Cox with respect to the issue of Mr. McCollum’s current mental designation, it notes that as even Dr. Tarle agreed, with time and the proper treatment plan, there is the real potential for progress in Mr. McCollum’s condition. This in turn may lead to the wrap-around services proposed by these forward-thinking psychiatrists.CONCLUSIONBased upon the foregoing reasons, the Court finds that Mr. McCollum currently suffers from a dangerous mental disorder as defined in CPL §330.20(1)(c). As such, the Court designates Mr. McCollum a “Track 1″ acquittee and issues the annexed Order of Commitment pursuant to CPL §330.20(6). Under the particular facts of this case, Mr. McCollum shall not be committed to Kirby Forensic Psychiatric Center.This constitutes the Decision and Order of the Court.Dated: Brooklyn, New York