State v. Keith F.

• Citation: 53 N.Y.S.3d 55,149 A.D.3d 671
• Parties: In re The STATE of New York, Petitioner–Respondent, v. KEITH F., Respondent–Appellant.
• Decision Date: 27 April 2017
• Court: New York Supreme Court Appellate Division

149 A.D.3d 671
53 N.Y.S.3d 55

In re The STATE of New York, Petitioner–Respondent,
v.
KEITH F., Respondent–Appellant.

Supreme Court, Appellate Division, First Department, New York.

April 27, 2017.

53 N.Y.S.3d 55

Marvin Bernstein, Mental Hygiene Legal Service, New York (Sadie Zea Ishee of counsel), for appellant.

53 N.Y.S.3d 56

Eric T. Schneiderman, Attorney General, New York (Andrew Rhys Davies of counsel), for respondent.

SWEENY, J.P., ACOSTA, RENWICK, MOSKOWITZ, KAHN, JJ.

Order, Supreme Court, Bronx County (James W. Hubert, J.), entered on or about February 19, 2016, as amended by orders entered February 29, 2016, and June 20, 2016, which, upon a determination that respondent is a dangerous sex offender requiring confinement, committed him to a secure treatment facility, unanimously affirmed.

The 60–day deadline by which a trial "shall" be commenced, pursuant to Mental Hygiene Law § 10.07(a), is not a "strict time limit[ ]" (Matter of State of New York v. Enrique T., 93 A.D.3d 158, 173, 937 N.Y.S.2d 203 [1st Dept.2012], lv. dismissed 18 N.Y.3d 976, 944 N.Y.S.2d 478, 967 N.E.2d 703 [2012] ). As there is no clear legislative intent to make compliance with that time frame a prerequisite to continued jurisdiction (compare CPL 30.30[1] ; 18 U.S.C. § 3162 [a][2] ), the failure to commence a trial within 60 days does not mandate dismissal of the petition (see Matter of

Grossman v. Rankin, 43 N.Y.2d 493, 501, 402 N.Y.S.2d 373, 373 N.E.2d 267 [1977] ; see also Dolan v. United States, 560 U.S. 605, 611, 130 S.Ct. 2533, 177 L.Ed.2d 108 [2010] ). Article 10 of the Mental Hygiene Law (MHL) states repeatedly that failure to comply with various deadlines does not affect the validity of the petition or the various actions subject to those deadlines (see MHL §§ 10.05[b], [g] ; 10.06[h]; 10.08[f]; 10.11[d][2], [4] ).

As the Fourth Circuit recognized in addressing a delay in the context of a federal sex-offender management program, "[T]he proper remedy would not be release, but to conduct the hearing and adjudicate whether he is a ‘sexually dangerous person’ under the statute" (United States v. Timms, 664 F.3d 436, 455 n. 19 [4th Cir.2012], cert. denied ––– U.S. ––––, 133 S.Ct. 189, 184 L.Ed.2d 237 [2012] ; see also Levy v. Davis, 302 A.D.2d 309, 312, 756 N.Y.S.2d 35 [1st Dept.2003] ).

Respondent's due process rights were not violated by the 15–month delay between his declaration of readiness for trial, after the probable cause determination, made upon his waiver of a probable cause hearing, and the start of the trial. Under the four-factor balancing test set forth in ( Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 [1972] ; see also Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 [1976] ), the length of the delay may be considered presumptively prejudicial (id. at 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 ). The second factor, the reason given for the delay (id. at 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 ), weighs only slightly against petitioner, because a considerable portion of the delay is attributable to respondent, the unavailability of the experts, and circumstances beyond petitioner's control.

Respondent is responsible for a five-month period of delay, when he chose to wait for his counsel to return from leave before proceeding to trial. Respondent also delayed the proceedings twice by refusing to appear, on June 12, 2014 and 2015. The delays for which respondent is responsible are not chargeable to petitioner (see e.g. People v. Wiggins, 143 A.D.3d 451, 455, 39 N.Y.S.3d 395 [1st Dept.2016], lv. granted 28 N.Y.3d 1152, 49 N.Y.S.3d 64, 71 N.E.3d 555 [2017] ). An additional six weeks of delay, based upon petitioner's...