State v. Floyd Y.

CourtNew York Court of Appeals
Writing for the CourtRIVERA
Citation979 N.Y.S.2d 240,2 N.E.3d 204,2013 N.Y. Slip Op. 07653,22 N.Y.3d 95
Decision Date19 November 2013
PartiesIn the Matter of STATE of New York, Respondent, v. FLOYD Y., Appellant.

22 N.Y.3d 95
2 N.E.3d 204
979 N.Y.S.2d 240
2013 N.Y. Slip Op. 07653

In the Matter of STATE of New York, Respondent,
FLOYD Y., Appellant.

Court of Appeals of New York.

Nov. 19, 2013.

Marvin Bernstein, Mental Hygiene Legal Service, New York City (Deborah P. Mantell and Sadie Z. Ishee of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York City (Matthew W. Grieco, Barbara D. Underwood and Steven C. Wu of counsel), for respondent.



[2 N.E.3d 205]

In this case, we are asked to consider whether, and to what extent, a court may admit hearsay evidence when it serves as the underlying basis for an expert's opinion in an article 10 proceeding. The circumstances of this case require a reversal and a new trial. The Due Process Clause protects against the admission of unreliable hearsay evidence, where such hearsay is more prejudicial than probative, regardless of whether it serves as the basis for an expert's properly proffered opinion testimony.

I. Facts and Procedural HistoryA. Floyd Y.'s Article 10 Proceeding

In January 2001, the Oswego County Court convicted Floyd Y. of four counts of

[2 N.E.3d 206]

sexual abuse in the first degree and four counts of endangering the welfare of a child (Penal Law §§ 130.65[3]; 260.10[1] ). The jury found that Floyd Y. had abused his two stepchildren four times between June 1996 and February 1998. During his incarceration, Floyd Y. received therapy through a sex offender treatment program. In December 2005, prior to his release from prison, the Department of Correctional Services (DOCS) invoked Mental Hygiene Law § 9.27 and transferred Floyd Y. to Kirby Psychiatric Center without a hearing. At the time, DOCS routinely made such transfers even though it lacked statutory authority to do so ( see State of N.Y. ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 825 N.Y.S.2d 702, 859 N.E.2d 508 [2006] ).

During Floyd Y.'s unlawful confinement at Kirby, he was diagnosed with polysubstance abuse, pedophilia, and antisocial personality disorder. He received compulsory treatment as a sex offender, which included participation in group counseling and individual contact with treatment personnel. Dr. Catherine Mortiere, a psychologist, was one of his treating physicians.

In 2007, the legislature enacted the Sex Offender Management and Treatment Act (SOMTA) (L. 2007, ch. 7, § 2), which authorized the State to place any “dangerous sex offender requiring confinement” in civil management (Mental Hygiene Law §§ 10.03[e]; 10.07[f] ). Shortly thereafter, the State invoked Mental Hygiene Law § 10.06 and ordered Floyd Y. examined by Dr. Michael Kunz, a psychiatric expert. The evaluation report filed by Dr. Kunz stated that, in his opinion, Floyd Y. “met the criteria for Pedophilia” and thus qualified for civil management under article 10. Accordingly, the State filed an article 10 civil management petition against Floyd Y.

Under article 10 of the Mental Hygiene Law, the State must establish at trial, by clear and convincing evidence, that a detained sex offender suffers from a mental abnormality as defined in that statute ( seeMental Hygiene Law §§ 10.07 [d]; 10.03[e] ). Prior to his jury trial, Floyd Y. sought to exclude testimony of the State's proffered expert witnesses, Dr. Mortiere, who would testify as one of Floyd Y's treating physicians at Kirby, and Dr. Kunz, who would testify as the State's statutory “psychiatric examiner” under Mental Hygiene Law § 10.06(d). The parties heavily contested the extent to which the State could present hearsay evidence through the testimony of these experts. Floyd Y. argued that the experts' opinions were inadmissible because they relied on unproven, unreliable accusations against him and that the testimony would include impermissible hearsay. The State disagreed. Supreme Court ultimately ruled against Floyd Y. and admitted both the opinion testimony and the underlying basis hearsay.

Dr. Mortiere was the State's star witness. At trial, Dr. Mortiere opined that Floyd Y. suffered from pedophilia, antisocial personality disorder, and polysubstance dependence. She further testified that the coexistence of those conditions increased the likelihood that he would reoffend. Dr. Mortiere based her opinion on victim affidavits, police reports, court records, three reports written by Dr. Kunz, a report by Floyd Y.'s expert Dr. Singer, and her own personal experience as Floyd Y.'s treating psychologist. Some of her testimony concerned the abuse for which Floyd Y. was convicted, but she also described unproven sex offenses, which had formed the basis of her opinion. As she revealed during voir dire, a victim's accusation helped shape her opinion, but a court's acquittal made absolutely no impact. She stated, “[an acquittal] would not

[2 N.E.3d 207]

have made a difference one way or the other.”

Although Dr. Mortiere lacked personal knowledge of the events, she nevertheless testified that Floyd Y. had committed sexual abuse against nine individuals, and she recounted the details of each alleged abuse. She described the alleged abuse of the 23–year–old victim of Floyd Y.'s 1992 sexual assault conviction; the teenage babysitter who was the victim of Floyd Y.'s 1995 harassment plea; her twin sister, who was the victim of alleged sexual abuse in 1994; the eight-year-old friend of the family who alleged an abuse in 1996 for which Floyd Y. was acquitted; the 17–year–old sister-in-law with whom Floyd Y. admittedly had inappropriate telephone conversations; the eight-year-old daughter of an ex-girlfriend whose claims of a 1998 abuse did not result in criminal charges; the 15–year–old daughter of Floyd Y.'s ex-girlfriend, who alleged abuse in 1998; and Floyd Y.'s stepchildren, who had been the victims of his 2001 conviction for sexual abuse. Dr. Mortiere opined that Floyd Y.'s continued denial of many of these incidents tended to show that he had a mental abnormality.

In addition to her rendition of these abuse allegations, Dr. Mortiere also told the jury about her therapeutic relationship with Floyd Y. Dr. Mortiere discussed Floyd Y.'s course of therapy and characterized his participation, describing his lack of progress in sex offender treatment and his belligerence toward her and other staff, particularly female staff. She disputed the statements of other doctors in Floyd Y.'s treatment history that appeared to suggest that he had been making progress because she believed him to be deceitful and driven, in part, by his desire to avoid being “locked up.”

The State's other expert witness, Dr. Kunz, testified that Floyd Y. suffered from pedophilia, polysubstance abuse, and antisocial personality disorder, and met the criteria for mental abnormality. Dr. Kunz based his testimony on personal interviews with Floyd Y., clinical records, and written reports concerning Floyd Y.'s alleged sex crimes. Like Dr. Mortiere, Dr. Kunz testified about past incidents of Floyd Y.'s sexual abuse, including several uncharged instances.

In rebuttal, Floyd Y. called his own expert, Dr. Singer, who testified that Floyd Y. did not suffer from pedophilia. He opined that Floyd Y. had polysubstance dependence and personality disorder not otherwise specified with antisocial traits. Dr. Singer testified that Floyd Y.'s disorder did not “[rise] to the level of what Article 10 dictates,” and placed Floyd Y.'s likelihood to reoffend on the “lower end of moderate or at the higher end of low.”

The trial court gave the jury limiting instructions on its consideration of experts' testimony regarding accusations. The court told the jury to consider “any testimony as to the accusations that ended in dismissal and acquittal only for the purpose of evaluating the experts'[ ] findings and understanding the basis of their conclusions.” The court further instructed the jury that testimony concerning out-of-court statements was admitted to inform the jury as to the basis of the experts' testimony and was “not to be considered as establishing the truth of those out of court statements. You are to use such testimony only for the purpose of evaluating the expert's findings.” The court also instructed the jury that “[t]he opinions stated by each expert ... were based on particular facts as the expert obtained knowledge of them and testified to them before you or as the attorney who questioned the expert asked the expert to assume.”

[2 N.E.3d 208]

The jury found that Floyd Y. suffered from a mental abnormality. Following a dispositional hearing, the court assigned him to the Office of Mental Health for confinement in a secure facility.

B. Floyd Y.'s Appeal to the Appellate Division

On appeal to the Appellate Division, Floyd Y. argued that Supreme Court erred when it allowed the experts to testify to unreliable hearsay, and that Dr. Mortiere's testimony violated the psychologist-patient privilege. The Appellate Division found that Supreme Court properly admitted some, but not all, of the basis hearsay under the “professional reliability exception” and rejected the psychologist-privilege argument ( Matter of State of New York v. Floyd Y., 102 A.D.3d 80, 87–88, 953 N.Y.S.2d 566 [1st Dept.2012] ). According to the Appellate Division, evidence that would otherwise be inadmissible as hearsay may nevertheless form the basis for an expert's opinion if it is the type of material “accepted in the profession as reliable in forming a professional opinion,” so long as there is other evidence establishing the hearsay's reliability (id. at 84, 953 N.Y.S.2d 566).

The Appellate Division first determined that Dr. Mortiere's uncontroverted testimony that witness affidavits and police reports are the type of documents “heavily relied upon in her profession” supported the trial court's decision to allow her to inform the jury that she relied on this hearsay in forming her expert opinion. The Appellate Division then examined the hearsay to determine whether it was “reliable” based on other evidence. The...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT