Opinion
2011-10-25
In re The STATE of New York, Petitioner–Respondent,v.C.B., Respondent–Appellant.
Andrea Risoli, New York, for appellant.Eric T. Schneiderman, Attorney General, New York (Robert C. Weisz of counsel), for respondent.
Andrea Risoli, New York, for appellant.Eric T. Schneiderman, Attorney General, New York (Robert C. Weisz of counsel), for respondent.
Order of commitment, Supreme Court, Bronx County (Dineen Ann Riviezzo, J.), entered August 24, 2009, which, upon a finding made after a jury trial of mental abnormality, and a determination made after a dispositional hearing that appellant is a dangerous sex offender requiring confinement, committed appellant to a secure facility, unanimously affirmed, without costs.
The court properly denied appellant's application for a pretrial hearing on the voluntariness of a confession that was ultimately admitted at trial. Sex offender management proceedings under article 10 of the Mental Hygiene Law are civil rather than criminal ( People v. Harnett, 16 N.Y.3d 200, 206, 920 N.Y.S.2d 246, 945 N.E.2d 439 [2011]; see also Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 [2003]; Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 [1997] ). Therefore, the requirement of a judicial determination of voluntariness ( see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 [1965] ) does not apply to such proceedings. Instead, appellant's confession was admissible as a party admission under the principles applicable to civil litigation. Appellant's other evidentiary claims are without merit.
Appellant received effective assistance of counsel, even under the state and federal standards applicable to criminal cases ( see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998]; see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). Appellant claims his trial counsel should have sought to preclude, as unreliable, any testimony regarding the STATIC–99 actuarial risk assessment instrument ( see Matter of State of New York v. Rosado, 25 Misc.3d 380, 388–394, 889 N.Y.S.2d 369 [Sup. Ct., Bronx County 2009] [discussion of STATIC–99] ). Instead, it was appellant's counsel who brought the STATIC–99 into the case on cross-examination of the State's expert. This was a strategy designed to discredit the expert by showing that, in forming his opinion, he placed excessive emphasis on statistics rather than appellant's personal attributes. The strategy was objectively reasonable, and in any event it did not cause appellant any prejudice.
Finally, there is no merit to appellant's argument that he is entitled to release on the ground that his initial confinement under article 9 of the Mental Hygiene Law had been illegal ( see
People ex rel. Joseph II. v. Superintendent of Southport Correctional Facility, 15 N.Y.3d 126, 905 N.Y.S.2d 107, 931 N.E.2d 76 [2010] ).