DECISION AND ORDER K.W. (“defendant”) moved for an order holding the Office of Mental Health (“OMH”) in civil and criminal contempt, pursuant to Judiciary Law §§750 and 753, based on OMH’s failure to timely transfer defendant to an OMH facility, in accordance with this court’s commitment order. For the reasons set forth below, the defendant’s motion is denied. Relevant Facts and Procedural Posture A New York County grand jury indicted defendant for Attempted Assault in the First Degree (Penal Law §110/120.10[1]). On September 20, 2023, this court ordered a competency examination pursuant to Criminal Procedure Law (“CPL”) §730. After being evaluated, defendant was found unfit. On October 12, 2023, this court issued an order committing defendant to the custody of OMH “for care and treatment in an appropriate institution to be designated by” OMH. That order further directed the New York City Department of Corrections (“DOC”) to deliver defendant to the designated institution “forthwith.” On October 12, 2023, OMH designated Mid-Hudson as the facility to receive defendant (Defendant Exhibits B, C). On October 31, 2023, defense counsel emailed Jeffrey Paloski of OMH to inquire about defendant’s designation and estimated transfer date. Paloski replied that defendant was “promptly designated” (Defendant Exhibit D). On December 7, 2023, counsel for DOC advised that defendant’s transfer was “pending a female bed” (Defendant Exhibit C). On February 20, 2024, defendant filed an order to show cause, pursuant to CPL §730.60 and Judiciary Law §§753 and 750, as to why OMH should not be held in contempt. On March 5, 2024, OMH filed an affirmation and memorandum of law in opposition, and this court held oral argument. On March 25, 2024, defendant filed a reply, and on April 2, 2024, OMH filed a sur-reply. Legal Arguments and Analysis To sustain a motion for civil contempt, the moving party must show, by clear and convincing evidence, that a lawful judicial order “expressing an unequivocal mandate” was in effect; that the order was disobeyed; that the party to be held in contempt had knowledge of the court’s order; and that the right of a party to the litigation was prejudiced. Gregg v. Lan Zhen Chen, 220 A.D.3d 695, 696 (2d Dep’t 2023); see McCain v. Dinkins, 54 N.Y.2d 216, 225-26 (1994). To establish criminal contempt, however, a higher degree of willfulness by the alleged contemnor is required. McCain, 54 N.Y.2d at 226 (“the element which escalates a contempt to criminal status is the level of willfulness associated with the conduct”). Knowingly failing to comply with a court order gives rise to an inference of willfulness, which may be rebutted with “evidence of good cause for noncompliance.” Matter of Figueroa-Rolon v. Torres, 121 A.D.3d 684 (2d Dep’t 2014) (citations and quotations omitted). The defendant initially sought to hold OMH in civil contempt. In her reply papers, however, the defendant withdraws that request, concluding that the defendant’s intervening transfer rendered the request for civil contempt moot (Defendant’s Reply at 2). Accordingly, the only issue before this court is whether OMH should be held in criminal contempt.1 In support of her request for criminal contempt sanctions, the defendant urges this court to conclude that OMH’s violation of the commitment order was willful, arguing that OMH admitted to “a policy and practice of delaying admission of unfit individuals” (Defendant’s Reply at 6). The defendant also highlights OMH’s failure to take “corrective steps,” such as financing initiatives or development of outpatient services, in the face of steadily increasing need for competency-restoration services (Defendant’s Reply at 7). In opposition, OMH notes that its delay in accepting patients for treatment is due to lack of space in secure facilities, caused in part by a consistent increase in patients in need of restoration services. OMH also contends that it has taken steps to ameliorate the problem, citing the recent opening of a unit for 25 patients at Manhattan Psychiatric Center, as well as its plan to “soon” commence construction to expand Mid-Hudson (OMH Sur-Reply at 4-5). OMH also argues that it “regularly evaluates” the possibility of various programs to facilitate competency restoration, but urges that each potential solution is accompanied by its “own set of challenges,” including staffing, exclusion from Medicare and Medicaid programming, the cooperation of third parties, and the procurement of “substantial funds” through the budgetary process (OMH Sur-Reply at 5-6; Sur-Reply Affidavit at
