Upon the foregoing papers and after oral argument in this proceeding for a writ of habeas [*2]corpus, pursuant to CPLR Article 70, petitioner S.S. seeks an order directing her immediate unshackling and that any future imposition of restraints while she remains a patient at Kings County Hospital be effectuated only in accordance with Mental Hygiene Law (MHL) § 33.04 and 14 NYCRR 526.4. (petition at ¶¶ 2 and 18).^[FN1] The petition alleges that the continued shackling of S.S. while she is a patient at Kings County Hospital is illegal since it violates MHL § 33.04, 14 NYCRR § 526.4 and her due process rights (id. at ¶¶ 17 and 19). For oral argument, counsel for Petitioner, Kings County Hospital and the NYPD were present.

S.S. was brought to Kings County Hospital on January 20, 2025 in the custody of the New York City Police Department (NYPD). She was examined by a physician at the hospital on the same day, and was transferred to the Comprehensive Psychiatric Emergency Program (CPEP) on January 21, 2025. On January 22, 2025, S.S. was admitted therein pursuant to Mental Hygiene Law (MHL) § 9.39.

On January 23, 2025, S.S. commenced this habeas corpus proceeding by filing a petition verified by counsel seeking her immediate unshackling and an order directing that any future imposition of restraints while she is a patient at Kings County Hospital must be in accordance with the law. The petition alleges that "S.S. is now detained at Kings County Hospital Center (KCHC) . . . where she has been shackled in leg restraints as well as handcuffed to a gurney in a wrist restraint continuously since January 21, 2025"^[FN2] (petition at ¶ 2). The petition specifically alleges that:

"[t]he objective of this petition for a writ of habeas corpus is an order directing the removal of leg and wrist restraints from S.S., and that any future use of restraints on S.S., so long as she remains admitted to KCHC . . . be administered only in accordance with the mandates of Mental Hygiene Law . . . § 33.04 and 14 NYCRR 526.4" (id. at ¶ 2)

The petition alleges that S.S. was arrested, after which she was brought to Kings County Hospital on January 20, 2025, by Emergency Medical Services (EMS) and the New York City Police Department (NYPD) "for evaluation of her need for psychiatric care and treatment" as an involuntary patient, pursuant to MHL § 9.40, which was subsequently converted to MHL § 9.39 on January 22, 2025 (id. at ¶¶ 4, 5 and 7). The petition alleges that "[d]espite her admission for psychiatric care and treatment, her wrist and leg shackles were not removed" (id. at ¶ 5). NYPD officers allegedly "remained with S.S. upon arrival at the hospital and S.S. remained under leg and wrist restraints (shackles), which were attached to her hospital bed" (id. at ¶ 4). The petition alleges that "[s]ince her admission to KCHC . . . S.S. has been on a locked psychiatric unit" and thus "[e]ven without the additional restraint imposed by the shackling, she would not be free to leave" (id. at ¶ 7). The petition also alleges that an NYPD officer is stationed near S.S. at all times (id. at ¶ 8). The petition further alleges that "[n]o doctor has made a clinical determination that ongoing restraints are currently necessary to prevent S.S. from injuring h[er]self or others, or [*3]that no less restrictive techniques would be clinically appropriate in [t]his case" and "[n]o written order by any physician has been generated to authorize the ongoing use of shackles on S.S. (id. at ¶ 9).

The Respondents filed papers in opposition to the petition. A hearing was held before this Court on January 24, 2025.

"[A]rticle 70 of the CPLR governs special proceedings for a writ of habeas corpus, the historic common-law writ that protects individuals from unlawful restraint or imprisonment and provides a means for those illegally detained to obtain release" (People ex rel. DeLia v Munsey, 26 NY3d 124, 127-128 [2015]). CPLR 7002 (a) provides that "[a] person illegally imprisoned or otherwise restrained in his liberty within the state . . . may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance." CPLR 7010 (a) provides that "[i]f the person is illegally detained a final judgment shall be directed discharging him forthwith."

In their opposition papers, counsel for the NYPD noted that in State ex rel. Louis M. v Popiel, the Appellate Division, First Department ruled, under circumstances almost identical to those herein, that a Writ was not a legitimate mechanism for the relief sought and denied the application (State ex rel. Louis M. v Popiel, 223 NYS3d 93, 94 [1st Dept 2025]). Here, S.S., like the Petitioner in Louis M., seeks the immediate removal of her leg and wrist restraints while she is being treated at the hospital, is an arrestee in the custody of the NYPD, and is being held at a psychiatric unit following her arrest by the NYPD.

A habeas corpus proceeding which raises issues other than immediate release from custody may be converted to one brought pursuant to article 78 where success on the merits would not entitle a parolee to immediate release from custody or a prisoner to an immediate discharge (6 NY Jur. 2d Article 78 § 341). In People ex rel. Dawson v Smith, the Court of Appeals affirmed the order of the Appellate Division, which held that a writ of habeas corpus is not the correct vehicle for reviewing the legality of a prisoner's confinement, and accordingly, the Appellate Division properly converted the habeas corpus to an article 78 proceeding (People ex rel. Dawson v Smith, 69 NY2d 689, 690-91 [1986]). Correspondingly, the court in Louis M. stated that conversion to an article 78 proceeding is appropriate under circumstances in which a complete record is available, and all proper parties are present (State ex rel. Louis M. v Popiel, 223 NYS3d 93, 94 [1st Dept 2025]). Moreover, People ex rel. Johnson v Kracke stated that a Court has the power to convert a petition for a writ of habeas corpus into a CPLR article 78 petition when the relator requests that relief on the record (see People ex rel. Johnson v Kracke, 233 AD2d 943, 943 [4th Dept 1996] citing People ex rel. Travis v. Coombe, supra, at 882, 632 N.Y.S.2d 340).

In the case herein, counsel for Petitioner made an application to have the writ of habeas corpus converted to an article 78 proceeding. A complete record was available, and the Court finds that all proper parties were present. Thus, this Court hereby converts the habeas corpus writ herein to an article 78 proceeding.

MHL § 33.04, regarding the restraint of a patient, provides that:

"Restraint shall be employed only when necessary to prevent a patient from seriously injuring himself or others. It may be applied only if less restrictive techniques have been clinically determined to be inappropriate or insufficient to avoid such injury" (emphasis [*4]added).

"MHL § 33.04 and the NY Code Rules and Regulations at 14 NYCRR 526.4 govern when a patient is permitted to be physically restrained at certain facilities" (B.L. v Agarkar, 82 Misc 3d 846, 850 [Sup Ct, NY County 2024). MHL § 33.04 (a) defines "restraint" as "the use of an apparatus on a patient which prevents the free movement of both arms or both legs or which totally immobilizes such patient, and which the patient is unable to remove easily" (SLS Residential, Inc. v New York State Office of Mental Health, 67 AD3d 813, 815 [2d Dept 2009]). These provisions mandate that such bodily restraint shall be authorized by a physician's written order and are a last resort when such intervention is necessary to prevent an "imminent, serious injury to the patient or others" and shall be discontinued when no longer necessary to prevent the emergency (see 14 NYCRR § 526.4 [b] [1] [i]). 14 NYCRR § 526 (b) (2) provides that "[r]estraint or seclusion for any purpose shall never be utilized as punishment, for the convenience of staff, to substitute for inadequate staffing, or as a substitute for treatment programs."

Mental Hygiene Law does not contemplate situations such as this where an individual is both a psychiatric patient and an arrestee in the custody of the NYPD. NYPD officers are regulated by the NYPD Patrol Guide, which states that NYPD officers escorting persons requiring medical/psychiatric treatment "do not remove handcuffs or leg restraints, unless requested by attending physician . . . " (Petitioner's Exh. "B" NYPD Patrol Guide pg. 3, section 21). Upon request by an attending physician, the escorting officer must request a response by the patrol supervisor who will evaluate the need for additional personnel and equipment. (id.)

Petitioner's application noted, without contradiction, that a physician, as documented in the patient's medical records, requested that the shackles be removed from the patient (petition at ¶ 9). The information provided to the Court at the hearing was that the request was denied by the on-scene officers. The NYPD maintained that they have no record of such request. (id.) No information was provided to the Court that a patrol supervisor was apprised of the request, as per the requirements of the NYPD Patrol Guide. KCHC's opposition papers similarly stated that "a Hospital physician treating S.S. . . . made a direct request to the assigned officer to have the NYPD restrains removed on at least one occasion, but such request(s) have not been honored" (KCHC opposition papers at ¶ 7).

While the Court is mindful that S.S. is facing arraignment on criminal charges and is in the custody of the NYPD, she is also a patient in a secure psychiatric unit. The unit is staffed by psychiatrists and medical personnel with specialized training in handling psychiatric patients, and there are well-established procedures for handling patients who are aggressive or violent. Additionally, prolonged restraint may cause further deterioration of the patient's mental health.

In situation such as the one herein, it is incumbent upon the NYPD to ensure full compliance with the procedures in the NYPD Patrol Guide (NYPD Patrol Guide Procedure No. 210-04). Written records of all such requests to the on-scene officers by a physician should be maintained, as well as the response of the patrol supervisor.

Here, in the absence of any order by a treating physician that restraints are necessary to prevent S.S. from seriously injuring herself or others while she is an involuntary psychiatric patient in a locked psychiatric unit at Kings County Hospital, and on the basis that S.S.'s treating physician specifically requested that her restraints be removed, the petition shall be granted and such illegal restraints shall be removed and prohibited, as the doctors and staff on this [*5]psychiatric unit are trained to handle potentially aggressive patients and do so on a routine basis. Petitioner remains in police custody pending arraignment and is to be treated as necessary for psychiatric and medical issues by Kings County Hospital. Accordingly, it is hereby,

ORDERED that respondents shall immediately remove the leg and wrist restraints from S.S. and that any future imposition of restraints while S.S. remains a patient at Kings County Hospital shall be effectuated only in accordance with MHL § 33.04 and 14 NYCRR § 526.4.

This constitutes the decision, order and judgment of the court.