
    The People of the State of New York ex rel. Edward M. Kaufmann On Behalf of Phillip K. (Anonymous), Petitioner, v Benjamin Goldman, as Director of Cooper Community Rehabilitation Center (ODAS), Respondent.
    Supreme Court, Special Term, New York County,
    May 26, 1976
    
      
      Charles Schinitsky, Gene B. Mechanic and Edward M. Kaufmann for petitioner. Louis J. Lefkowitz, Attorney-General (Alfred P. Crisci of counsel), for respondent.
   Harold Baer, J.

A writ of habeas corpus was issued for the production of the body of Phillip K. The petition seeks the release of the 15-year-old relator from the custody of the Office of Drug Abuse Services. It also seeks class action status.

This relator was adjudicated a person in need of supervision by a Judge of the Family Court, Erie County (Family Ct Act, § 712, subd [b]). The relator was thereafter "placed” (Family Ct Act, § 756) with the Hasten Park Drug Center and thereafter with the Cooper Community Rehabilitation Center, under the jurisdiction of the Drug Abuse Services of the State of New York. He was found not to be drug dependent.

A motion to vacate the above disposition was denied on March 15, 1976. The Judge in his decision stated that "institutions operated by the Office of Drug Abuse Services are institutions available as placement resources for Family Court without certification of drug dependency (Sections 119 and 756, F.C.A.)”. This is clearly erroneous. The court has broad jurisdiction, and that includes civil certification of narcotic addicts (Family Ct Act, § 115, subd [c]). However, that jurisdiction is "governed by the provisions of Article 81 of the Mental Hygiene Law.” Sections 119 and 756 of the Family Court Act do not authorize the placement to which relator was remanded. Section 81.13 of the Mental Hygiene Law controls the method for civil certification of drug dependent persons and is applicable to adults and to juveniles in the Family Court.

There is no need to consider the constitutional questions raised by this petition. There was a violation of a statute of this State, the placement was illegal. There was no hearing or finding of drug addiction to warrant certification to a drug program. (Mental Hygiene Law, art 81.) The relator must be released from the drug program placement. He has been found to be a person in need of supervision by the Family Court and will be returned to the Family Court, Erie County, for proper placement.

The application for class action status (CPLR 901) cannot be granted. It is premature to request such certification. The application is denied without prejudice to renewal after service of the respondent’s answer or within 60 days after the answer is due.

The writ is sustained as above indicated.  