
    The People of the State of New York ex rel. William A. Bram, Appellant, v. Ross E. Herold, as Director of Dannemora State Hospital, Respondent.
    Argued November 24, 1971;
    decided January 14, 1972.
    
      
      Robert E. Heslin for appellant.
    
      Louis J. Lefkowits, Attorney-General (Thomas P. Zolessi and Ruth Kessler Toch of counsel), for respondent.
   Order reversed, without costs, and the matter remitted to Special Term for a hearing in accordance with the following memorandum: The directive of the Department of Correction denying to all “mentally ill” prisoners, the good behavior allowances of article 24 of the Correction Law, applicable to old law prisoners under section 230-a of the Correction Law, is violative of the statutory scheme governing reduction of sentences and a denial, to those so classified without a prior determination of competency, of the equal protection of the laws. (Baxstrom v. Herold, 383 U. S. 107, 111.) Relator, and all those similarly situated, are entitled to bring a proceeding in Supreme Court and introduce medical testimony to show their competency to elect the additional time allowances and obligations provided by article 24. (People v. Aponte, 28 N Y 2d 343, 351-352.)

Concur: Chief Judge Fuld and Judges Bukkb, Bebgan and Gibson. Judge Beeitel dissents and votes to affirm in the follow- ■ ing opinion in which Judges Scileppi and Jasen concur.

Breitel, J. (dissenting).

I vote to affirm.

The Correction Law (§§ 230-a, 803) in providing for an election by a prisoner to obtain certain credits for time served entails burdens as well as benefits. Thus, an electing prisoner in effect agrees to forfeit credits in the event of postrelease misconduct, a consequence not imposed under the older mandatory provisions of the statute (§ 230, subd. 4). Because burdens are imposed the statute should not be construed to apply to prisoners classified and detained as mentally ill and, therefore, not fully responsible. Hence, the Commissioner of Correction, as the Appellate Division held, was correct in exercising his discretion by declining to implement the voluntary program for prisoners presently mentally ill. Moreover, the statute provides that in any event: “No person shall have the right to demand or require the allowances authorized by this section. The decision of the commissioner * * * shall be final and shall not be reviewable if made in accordance with law ” (§ 803, snbd. 4).

It is evident that an election under section 230-a by a mentally ill person may hardly be treated as “ voluntary ” and his agreement will, therefore, remain vulnerable. Nor will a preliminary proceeding for determination of his competency to make the election be of much avail. Later, if events turn out unfavorably for him, he will be in a position to contend that he lacked competency to initiate or participate in the preliminary proceeding.

But that is the least of the problem. The new procedure now mandated—without statute, precedent, or procedural category upon which to base it — continues the proliferation of hearings in criminal matters of which this court has said there are already too many (People v. Ganci, 27 N Y 2d 418, 424-426). This becomes grist for the mill of the litigious and especially of the mentally ill litigious.

The short of it is that the voluntary program, described as an incentive program, is designed for the mentally healthy, not just some of the time or as to some things. The Legislature could hardly have contemplated differently. The issue of equal protection to persons similarly situated is met fully by the intelligent and rational classification between the mentally healthy prisoner and the mentally ill prisoner —between the responsible and the irresponsible.

Accordingly, I dissent and vote to affirm the order of the Appellate Division.

Order reversed, etc.  