Opinion
1031 CA 19-01276
03-19-2021
In the Matter of the Application for Discharge of CHARLES B. From Central New York Psychiatric Center, Pursuant to Mental Hygiene Law Section 10.09, Petitioner-Appellant, v. STATE of New York, Respondent-Respondent.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR PETITIONER-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT-RESPONDENT.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR PETITIONER-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the amended order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner appeals from an amended order, entered after an annual review hearing held pursuant to Mental Hygiene Law § 10.09 (d), determining that he is a dangerous sex offender requiring confinement under section 10.03 (e) and directing that he continue to be confined to a secure treatment facility (see § 10.09 [h] ). We reject petitioner's contention that his due process rights were violated by a delay in holding a hearing in this case (see Matter of Wayne J. v. State of New York , 184 A.D.3d 1133, 1134, 123 N.Y.S.3d 851 [4th Dept. 2020] ; Matter of State of New York v. Kerry K. , 157 A.D.3d 172, 181-182, 67 N.Y.S.3d 227 [2d Dept. 2017] ; Matter of State of New York v. Keith F. , 149 A.D.3d 671, 672-673, 53 N.Y.S.3d 55 [1st Dept. 2017], lv denied 29 N.Y.3d 917, 2017 WL 3902551 [2017], appeal dismissed 30 N.Y.3d 1032, 69 N.Y.S.3d 205, 91 N.E.3d 1184 [2017] ). The record reflects that much of the delay was attributable to petitioner's request for an independent psychological examiner, the completion of that examiner's report, petitioner's request to proceed pro se, and petitioner's motion to dismiss, all of which are not chargeable to respondent (see Wayne J. , 184 A.D.3d at 1134, 123 N.Y.S.3d 851 ).
Petitioner contends that Supreme Court erred in allowing respondent's expert witness to provide testimony based on hearsay evidence concerning petitioner's criminal history. Petitioner was indicted on charges stemming from four incidents that occurred in 1997, and he pleaded guilty to sexual abuse in the first degree and sexual abuse in the second degree in connection with two of those incidents. Petitioner contends that the expert witness should not have relied upon the other two incidents because he did not plead guilty to those charges and there is no indication that those charges were satisfied by his guilty plea. It is well settled that hearsay basis evidence is admissible in Mental Hygiene Law article 10 proceedings if the evidence is reliable and the probative value in assisting the factfinder to evaluate the expert's opinion outweighs its prejudicial effect (see Matter of State of New York v. Floyd Y. , 22 N.Y.3d 95, 109, 979 N.Y.S.2d 240, 2 N.E.3d 204 [2013] ). "Criminal charges that resulted in neither acquittal nor conviction require close scrutiny" ( id. at 110, 979 N.Y.S.2d 240, 2 N.E.3d 204 ; see Matter of State of New York v. John S. , 23 N.Y.3d 326, 343, 991 N.Y.S.2d 532, 15 N.E.3d 287 [2014], rearg denied 24 N.Y.3d 933, 993 N.Y.S.2d 544, 17 N.E.3d 1141 [2014] ).
We agree with petitioner that the allegations underlying the two charges at issue "are not supported by an admission from [petitioner] or extrinsic evidence substantiating those allegations" ( John S. , 23 N.Y.3d at 343, 991 N.Y.S.2d 532, 15 N.E.3d 287 ), but we conclude that the court, as the trier of fact, was "presumed to be able to distinguish between admissible evidence and inadmissible evidence [and to abide by the limited purpose of hearsay evidence when admitted] and to render a determination based on the former" ( Matter of State of New York v. Bass , 119 A.D.3d 1356, 1357, 989 N.Y.S.2d 556 [4th Dept. 2014], lv denied 24 N.Y.3d 908, 2014 WL 5394102 [2014], cert denied 575 U.S. 941, 135 S.Ct. 1715, 191 L.Ed.2d 687 [2015] [internal quotation marks omitted]; see Matter of State of New York v. Breeden , 140 A.D.3d 1649, 1650, 34 N.Y.S.3d 814 [4th Dept. 2016] ). In any event, we further conclude that any error was harmless. "[T]here is no reasonable possibility that, had the [hearsay testimony] been excluded, the court would have reached a different determination" ( Breeden , 140 A.D.3d at 1650, 34 N.Y.S.3d 814 [internal quotation marks omitted]; see John S. , 23 N.Y.3d at 348-349, 991 N.Y.S.2d 532, 15 N.E.3d 287 ; Matter of State of New York v. Daniel J. , 180 A.D.3d 1347, 1349-1350, 118 N.Y.S.3d 346 [4th Dept. 2020], lv denied 35 N.Y.3d 908, 2020 WL 3422539 [2020] ).
We reject petitioner's contention that the evidence is legally insufficient to establish that he is a dangerous sex offender requiring confinement. Pursuant to the Mental Hygiene Law, a person is classified as a dangerous sex offender requiring confinement if that person "suffer[s] from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility" (§ 10.03 [e]). The statute defines a mental abnormality as "a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct" (§ 10.03 [i]). Respondent established by clear and convincing evidence that petitioner continues to suffer from a mental abnormality inasmuch as it presented evidence establishing that petitioner has been diagnosed with exhibitionistic disorder, bipolar I disorder, cannabis use disorder, and antisocial personality disorder, and provisionally diagnosed with unspecified paraphilic disorder, which, along with his high degree of psychopathy, predispose him to commit sex offenses and result in serious difficulty in controlling such conduct (see Matter of Luis S. v. State of New York , 166 A.D.3d 1550, 1551-1552, 88 N.Y.S.3d 748 [4th Dept. 2018], appeal dismissed 35 N.Y.3d 985, 125 N.Y.S.3d 75, 148 N.E.3d 539 [2020] ; Matter of Vega v. State of New York , 140 A.D.3d 1608, 1609, 34 N.Y.S.3d 810 [4th Dept. 2016] ; Matter of State of New York v. Williams , 139 A.D.3d 1375, 1377-1378, 31 N.Y.S.3d 362 [4th Dept. 2016], lv denied 28 N.Y.3d 910, 2016 WL 7236834 [2016], cert denied ––– U.S. ––––, 137 S. Ct. 2276, 198 L.Ed.2d 708 [2017] ).
Contrary to petitioner's contention, a finding of mental abnormality under Mental Hygiene Law § 10.03 (i) does not need to be based on a diagnosis of a sexual disorder, and legally sufficient evidence of a mental abnormality exists within the meaning of the statute if there is evidence linking the nonsexual disorder to a predisposition to commit sex crimes (see Matter of State of New York v. Dennis K. , 27 N.Y.3d 718, 743, 37 N.Y.S.3d 765, 59 N.E.3d 500 [2016], cert denied ––– U.S. ––––, 137 S. Ct. 579, 196 L.Ed.2d 452 [2016] ). Here, respondent established that petitioner's exhibitionistic disorder was sufficiently connected to his sex-offending behavior (see id. ). Respondent's expert witness testified that petitioner's sex-offending behavior had escalated from noncontact exhibitionistic conduct to contact offenses in which he broke into homes and had forcible sexual contact with females. In addition, petitioner repeatedly exposed himself and masturbated in front of female staff at the secure treatment facility, as recently as one week before the hearing (see Matter of State of New York v. Peters , 144 A.D.3d 1654, 1654-1656, 46 N.Y.S.3d 298 [4th Dept. 2016] ).
Respondent also established by clear and convincing evidence that petitioner requires continued confinement. Respondent's expert witness testified that petitioner's attendance at treatment groups was infrequent, and that he did not have a relapse prevention plan (see Breeden , 140 A.D.3d at 1650, 34 N.Y.S.3d 814 ; Matter of Billinger v. State of New York , 137 A.D.3d 1757, 1758, 27 N.Y.S.3d 423 [4th Dept. 2016], lv denied 27 N.Y.3d 911, 2016 WL 3553381 [2016] ). She further testified that petitioner posed a high risk of reoffending based on, inter alia, his score on the Violence Risk Scale—Sex Offender Version, a test designed to evaluate an individual's risk of sexual violence (see Wayne J. , 184 A.D.3d at 1135, 123 N.Y.S.3d 851 ; Luis S. , 166 A.D.3d at 1552, 88 N.Y.S.3d 748 ). Finally, we reject petitioner's contention that the court's determination is against the weight of the evidence (see Wayne J. , 184 A.D.3d at 1135, 123 N.Y.S.3d 851 ; Billinger , 137 A.D.3d at 1758-1759, 27 N.Y.S.3d 423 ).