State v. Pierce

• Decision Date: 30 December 2010
• Citation: 914 N.Y.S.2d 547,79 A.D.3d 1779
• Parties: In the Matter of the STATE of New York, Petitioner-Respondent, v. Michael PIERCE, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 547 79 A.D.3d 1779 In the Matter of the STATE of New York, Petitioner-Respondent, v. Michael PIERCE, Respondent-Appellant. Supreme Court, Appellate Division, Fourth Department, New York. Dec. 30, 2010.

Bridget L. Field, Batavia, for Respondent-Appellant.

Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Treasure of Counsel), for Petitioner-Respondent.

PRESENT: SCUDDER, P.J., SMITH, GREEN, PINE, AND GORSKI, JJ.

MEMORANDUM:

Respondent appeals from an order determining that he is a dangerous sex offender requiring confinement pursuant to Mental Hygiene Law article 10. The jury found that he suffers from a mental abnormality that predisposes him to commit sex offenses and makes it unlikely that he will be able to control his behavior. We reject the contention of respondent that petitioner failed to prove by clear and convincing evidence that he suffers from a mental abnormality within the meaning of Mental Hygiene Law § 10.03(i). Rather, we conclude that the evidence of respondent's past convictions presented by petitioner established that respondent suffers from pedophilia, as that term is defined in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). According to DSM-IV, respondent falls within the definition of a pedophile if he, over a period of six months, has experiencedrecurrent and intense sexually arousing fantasies, sexual urges or behaviors involving children under the age of 13; if the fantasies, sexual urges or behaviors cause clinically significant distress or impairment in social, occupational or other important areas of functioning; and if he is at least 16 years old and five years older than his victims ( see Matter of State of New York v. Shawn X., 69 A.D.3d 165, 170 n. 3, 887 N.Y.S.2d 692, lv. denied 14 N.Y.3d 702, 898 N.Y.S.2d 97, 925 N.E.2d 102). As respondent correctly contends, one of the experts for petitioner testified during the jury phase of the trial that pedophilia occurs with a "prepubescent child, meaning someone [13] years old or younger." According to respondent, there was no evidence that the 13-year-old victim who was the subject of respondent's 1980 conviction was prepubescent, and thus petitioner failed to establish that respondent was a pedophile. Contrary to respondent's contention, however, the fact that the expert was unable to state definitively that the 13-year-old was prepubescent does not compel the conclusion that the jury's determination was not supported by a fair interpretation of the evidence ( see id. at 168-169, 887 N.Y.S.2d 692; Matter of Daniel XX., 53 A.D.3d 819, 820, 861 N.Y.S.2d 838).

Respondent further contends that Supreme Court erred in allowing petitioner's two experts to testify concerning theiropinions that he was a pedophile because those opinions were based on documents that were not shown to be reliable. Respondent failed to preserve that contention for our review, however, because in his motion in limine he did not seek to preclude the experts from testifying with respect to their opinions on that ground. Rather, respondent agreed that the experts could base their opinions on hearsay contained in the documentary evidence, and he sought only to preclude petitioner from disclosing to the jury any information not admitted in evidence. In any event, we note that most of the documents relied upon by the experts in forming their opinions were documents of the kind found to be reliable in People v. Mingo, 12 N.Y.3d 563, 883 N.Y.S.2d 154, 910 N.E.2d 983, i.e., parole board documents, presentence reports, accusatory instruments, certificates of conviction, police reports and respondent's criminal records. Those documents supported the diagnoses of pedophilia, even without consideration of the remaining documents not of the kind set forth in Mingo, and thus any error in the admission of the experts' opinions to the extent that they were based on such remaining documents is harmless.

In addition, respondent contends that he was denied his right to effective assistance of counsel based on his attorney's failure to attend his interviews with petitioner's two experts ( see generallyMatter of State of New York v. Campany, 77 A.D.3d 92, 905 N.Y.S.2d 419, lv. denied 15 N.Y.3d 713, 2010 WL 4183541). We note that the record establishes that his interview with one of the two experts occurred before the petition was filed, and thus respondent's right to counsel had not yet attached ( see Mental Health Law § 10.08[g]; Matter of State of New York v. Bernard D., 61 A.D.3d 567, 877 N.Y.S.2d 84). Respondent's contention therefore is lacking in merit insofar as it concerns that expert. Respondent's contention with respect to the second of the two experts concerns matters that are outside the record on appeal, and we therefore are unable to review that part of the contention. Moreover, in view of...