Appeal, by permission, from an order of the County Court of Saratoga County (Scarano, Jr., J.), entered August 31, 2006, which, in a proceeding pursuant to CPL 330.20, found that respondent has a dangerous mental disorder and committed him to the custody of the Commissioner of Mental Health for a period of six months.
Respondent was charged in an indictment with criminal contempt in the first degree after he violated an order of protection in favor of a female acquaintance in December 2005. Respondent had been arrested several times in the past for violating the order of protection. County Court accepted his plea of not responsible by reason of mental disease or defect, and ordered that respondent be examined by two psychiatrists to determine whether he suffered from a dangerous mental disorder (see CPL 220.15, 330.20 [2]). A third psychiatric examination was performed by Gowramma Shivashankar, a senior medical officer at the Mid-Hudson Forensic Psychiatric Center, after two attending psychiatrists at the Center, Charulata Shah and Michael Stone, differed in their opinions regarding whether respondent suffers from a dangerous mental disorder (see CPL 330.20 [5]). Ultimately, both Shah and Shivashankar concluded that respondent is dangerously mentally ill, while Stone opined that respondent was mentally ill but not dangerous.
At an initial hearing to determine respondent’s mental condition, an Assistant District Attorney (hereinafter ADA) and respondent’s counsel consented to the admission of the three psychiatric reports. Without calling any witnesses or presenting any additional evidence, the ADA then asserted that the reports of Shah and Shivashankar established that respondent is dangerously mentally ill, and argued that Stone’s report should be disregarded because Stone was not as “thorough” in his evaluation of respondent. The ADA did not explain the basis for her assertion that Stone’s report was not as thorough as the other two reports or otherwise elaborate on that assertion. Instead, respondent’s counsel replied that he was constrained to
Respondent’s sole argument on appeal is that he was denied the effective assistance of counsel during the initial commitment hearing when counsel simply adopted the ADA’s position that respondent is dangerously mentally ill. Initially, we note that because respondent was found to have a dangerous mental disorder at the initial commitment hearing, he was designated a “track one” insanity acquittee (see Matter of Norman D., 3 NY3d 150, 153 n 1 [2004]). “Track status designation, unique to insanity acquittees, is vitally important in determining the level of judicial and prosecutorial involvement in future decisions about an acquittee’s confinement, transfer and release. . . . [T]rack one status is significantly more restrictive than track two status,” the designation given when an acquittee is determined to be mentally ill but not dangerous (id. at 154-155; see Matter of David B., 97 NY2d 267, 276 n 4 [2002]; Matter of George L., 85 NY2d 295, 302 n 2 [1995]). Moreover, track status is fixed at the initial hearing and reevaluation of track one status is limited to an appeal (see Matter of Norman D., supra at 156-157). Inasmuch as the initial hearing was therefore a critical stage of the proceedings during which respondent was entitled to the effective assistance of counsel, we must consider “whether counsel’s performance [therein] ‘viewed in totality’ amount[ed] to ‘meaningful representation’ ” (People v Turner, 5 NY3d 476, 480 [2005], quoting People v Baldi, 54 NY2d 137, 147 [1981]). We agree with respondent that counsel’s performance did not meet that standard.
As respondent asserts, his counsel essentially acceded, without further discussion, to the ADA’s argument that the evidence supporting a less restrictive, track two status was not as credible as that supporting track one status. Counsel did not call any witnesses—including Stone, who concluded that respondent was mentally ill but not dangerous—on respondent’s behalf, waived cross-examination of Shah and Shivashankar by consent
We have considered the parties’ remaining arguments and, to the extent that they are not rendered academic by our determination, conclude that they are lacking in merit.
Peters, Mugglin and Kane, JJ., concur. Ordered that the order is reversed, on the law, without costs, and matter remitted to the County Court of Saratoga County for further proceedings not inconsistent with this Court’s decision.