
    The People of the State of New York, Appellant, v Gilbert Ortega, Respondent.
    Argued January 9, 1987;
    decided February 10, 1987
    
      APPEARANCES OF COUNSEL
    
      Mario Merola, District Attorney (Kevin D. McLoone and Jeremy Gutman of counsel), for appellant.
    
      Robert S. Dean and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was found not responsible for the crime of rape in the first degree by reason of mental disease or defect and was committed, in the custody of the Commissioner of Mental Health pursuant to CPL 330.20, to the Mid-Hudson Psychiatric Center, a secure facility. While a second retention order was in effect (CPL 330.20 [9]) defendant was transferred to the Bronx Psychiatric Center, a nonsecure facility, upon a showing that he did "not have a dangerous mental disorder” and that, "consistent with the public safety and welfare of the community and the defendant, the clinical condition of the defendant warranted] his transfer from a secure facility” to a nonsecure facility (CPL 330.20 [11]). While he was at the nonsecure facility he left without authorization and was thereafter indicted for escape in the second degree (Penal Law § 205.10) and escape in the third degree (Penal Law § 205.05). Supreme Court dismissed the indictment (127 Mise 2d 717) and the Appellate Division affirmed, without opinion.

We agree with the courts below that a nonsecure facility does not constitute a detention facility within the meaning of Penal Law § 205.00 (1) and that, therefore, defendant cannot be guilty of escape in the second degree (Penal Law § 205.10). As Supreme Court noted, after defendant was transferred to the Bronx Psychiatric Center upon the finding that he was no longer suffering from a "dangerous mental disorder” (CPL 330.20 [11]), the purpose of his custody in the Commissioner of Mental Health was no longer "security, confinement and prevention of escapes”, but "therapy and rehabilitation” (127 Misc 2d 717, 728, supra; see, People v Walter, 115 AD2d 52, 54). Nor do we read Penal Law § 205.05 in these circumstances to permit prosecution for escape in the third degree. The Legislature plainly did not intend to include such conduct within the scope of this crime; if it had, the Legislature could have indicated its intention in clear terms, as it did in the corresponding section defining escape in the second degree (see, Penal Law § 205.10 [1], [2], [3]).

Hancock, Jr., J.

(dissenting in part). I agree with the majority that an escape from a nonsecure facility by a CPL 330.20 defendant does not constitute the crime of escape in the second degree (Penal Law § 205.10). I would, however, modify the order of the Appellate Division by reinstating the count in the indictment charging escape in the third degree (Penal Law § 205.05) because escape from a nonsecure facility, while not amounting to escape in the second degree (Penal Law § 205.10), is an escape from the custody of the Commissioner of Mental Health, "a public servant pursuant to” an "order of a court” (Penal Law § 205.00 [2]), and hence constitutes the crime of escape in the third degree (Penal Law § 205.05; see, People v Walter, 115 AD2d 52, 55-56; People v Buthy, 85 AD2d 890). The references throughout CPL 330.20 to acquittees, whether committed to a secure facility (see, CPL 330.20 [8]) or nonsecure facility (see, CPL 330.20 [11]), as being in the "custody” of the Commissioner of Mental Health (see, e.g., CPL 330.20 [1], [6], [7], [8], [9], [10], [11], [12], [19]), the use of the word "escape” with reference to an acquittee who absconds (CPL 330.20 [10], [19]), and the use of the word "defendant” to describe an acquittee (see, CPL 330.20 [1]-[21]) all indicate that CPL 330.20 is to be read in the light of Penal Law article 205, and that the Legislature intended that escape from a nonsecure facility by a defendant in the "custody” of the Commissioner under CPL 330.20 should constitute escape in the third degree (Penal Law § 205.05). There is nothing in either CPL 330.20 or Penal Law article 205 evincing a contrary legislative intent.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur; Judge Hancock, Jr., dissents in part and votes to modify in an opinion.

Order affirmed in a memorandum.  