State v. Raul L.

• Citation: 988 N.Y.S.2d 190,2014 N.Y. Slip Op. 04019,120 A.D.3d 52
• Parties: In the Matter of STATE of New York, respondent, v. RAUL L. (Anonymous), appellant.
• Decision Date: 04 June 2014
• Court: New York Supreme Court Appellate Division

120 A.D.3d 52

988 N.Y.S.2d 190

2014 N.Y. Slip Op. 04019

In the Matter of STATE of New York, respondent,

v.RAUL L. (Anonymous), appellant.

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

June 4, 2014.

Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu and Won S. Shin of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.

LEVENTHAL, J.

In this proceeding pursuant to Mental Hygiene Law article 10 for the civil management of the appellant, a sex offender allegedly requiring civil management, the primary issue before this Court is whether the Supreme Court properly granted the appellant's request to give up his statutory right to counsel and conduct his defense pro se. For the reasons discussed below, we hold that due process requires that a sex offender's waiver of the statutory right to counsel in a Mental Hygiene Law article 10 proceeding be unequivocal, voluntary, and intelligent. To ensure that the waiver meets this standard, where a sex offender makes a request to proceed pro se, the court must conduct a searching inquiry to ascertain that the sex offender is aware of the dangers and disadvantages of giving up the right to counsel, such as must be conducted when a criminal defendant seeks to waive that fundamental right. Since the Supreme Court failed to conduct such an inquiry, the appellant's waiver of his right to counsel was ineffective, and the Supreme Court erred in permitting him to proceed pro se.

In 2005, the appellant was convicted of sodomy in the first degree pursuant to former Penal Law § 130.50, assault in the first degree (two counts), and assault in the second degree, upon a jury verdict, and sentenced to prison. The conviction related to acts committed in 2003, when, at 15 years of age, the appellant entered a woman's home, struck her in the head with a baseball bat, and engaged in anal sexual contact with her while she was unconscious.

In March 2011, as the appellant neared release from prison, the State of New York commenced this proceeding pursuant to Mental Hygiene Law article 10, also known as the Sex Offender Management and Treatment Act (hereinafter SOMTA), for the civil management of the appellant ( seeMental Hygiene Law § 10.06[a] ). In an ensuing probable cause hearing, the Supreme Court concluded that there was probable cause to believe that the appellant was a sex offender requiring civil management and directed that he be detained at a secure treatment facility pending trial ( seeMental Hygiene Law § 10.06[k] ).

On the date that a nonjury trial on the issue of whether the appellant suffered from a mental abnormality as defined in Mental Hygiene Law § 10.03(i) was scheduled to commence, the appellant's appointed counsel moved for leave to withdraw from the case. Counsel's application was apparently prompted by a disagreement with the appellant about delaying the trial. As revealed by a letter from the appellant, the source of the conflict was the appellant's disagreement with counsel's recommendation that the trial be adjourned; the appellant opposed an adjournment because he did not want to spend additional time in custody. The Supreme Court initially denied counsel's application for leave to withdraw and indicated that it would grant counsel an adjournment to prepare the appellant's psychiatric examiner, Dr. Leonard Bard.

The Supreme Court explained to the appellant that if his appointed counsel were to be relieved, new counsel would need four to five months to be ready for the trial. In response, the appellant stated that he would like to “fight” his own case. The court then indicated that it would relieve appointed counsel and designate him as the appellant's legal consultant. The appellant stated that he wanted to represent himself, was willing to proceed, and was “familiar with the DSM–IV.” The Assistant Attorney General representing the State expressed concern that the court had not conducted a broader inquiry about the appellant's ability to handle the case, including an inquiry as to whether the appellant had a sufficient level of intelligence to represent himself. The court answered that its only obligation was to put on the record that the appellant did not want an attorney and that he understood that he would represent himself. The court also noted that the letter that the appellant had written regarding his disagreement with counsel demonstrated that the appellant could read and write. After the Assistant Attorney General stated, for a second time, that a further inquirywas necessary, the court replied that it was satisfied that the appellant was aware of what he was doing and permitted the appellant to proceed pro se.

At the ensuing mental abnormality trial, the State elicited testimony from Dr. Roger Harris, a psychiatrist, who testified as an expert in sexual psychiatry and sex offender evaluation. Dr. Harris diagnosed the appellant with sexual sadism and antisocial personality disorder, with many characteristics of psychopathy. Dr. Harris defined sexual sadism as a diagnosis in which the subject derives sexual arousal from physically injuring, psychologically harming, humiliating, or degrading another individual. He testified that sexual sadism is listed in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (hereinafter DSM–IV), as one of the paraphilias, a group of diagnoses applicable to “a range of abnormal sexual arousal.” Examples of paraphilias given by Dr. Harris included pedophilia, transvestism, and exhibitionism.

Dr. Harris testified that the appellant's underlying conviction supported the diagnosis of sexual sadism because the appellant struck the victim in the head with a baseball bat, causing the victim to bleed profusely from her head. The appellant then had to manipulate the victim's unconscious body in order to engage in anal sexual conduct with her. Dr. Harris testified that it was remarkable that, in a setting where the victim was unconscious and covered with blood, the appellant was able to become sexually aroused, maintain an erection, and reach orgasm. Dr. Harris opined that the appellant suffered from a mental abnormality as defined in the Mental Hygiene Law which affected his emotional, cognitive, and volitional capacities.

Dr. Paul Etu, a psychologist and psychiatric examiner, diagnosed the appellant with paraphilia not otherwise specified (hereinafter paraphilia NOS), antisocial disorder with traits relating to borderline personality disorder, schizotypal personality disorder, and histrionic personality disorder. Dr. Etu noted that the appellant was very deceitful, impulsive, aggressive, had shown a reckless disregard for others, and failed to show adequate remorse.

The appellant did not present any witnesses at the mental abnormality trial. However, he submitted to the court a report from Dr. Leonard Bard, who opined that, given the lack of information about the underlying offense and the appellant's refusal to acknowledge the sexual aspects of the crime, it was not possible to determine whether the appellant should be diagnosed with sexual sadism. Likewise, Dr. Bard asserted that the appellant could not be diagnosed with paraphilic disorder because the appellant had been incarcerated since the age of 15, and had not displayed any signs of that disorder during that time. Dr. Bard, however, diagnosed the appellant as suffering from borderline personality disorder with both antisocial and paranoid features. Although Dr. Bard acknowledged the possibility that the appellant would violate the conditions of release under strict and intensive supervision and treatment, he maintained that the appellant was nonetheless a candidate for such release.

Following the nonjury mental abnormality trial, the Supreme Court determined that the State had proven, by clear and convincing evidence, that the appellant suffers from a mental abnormality as defined by article 10 of the Mental Hygiene Law and ordered a dispositional hearing.

At the dispositional hearing, Dr. Harris testified that the appellant met the criteria for a dangerous sexual offender requiring confinement. He testified that the three factors that are the strongest predictors for sexually reoffending are psychopathy, antisocial attitude and behavior, and deviant sexual interests; the appellant displayed all three factors. According to Dr. Harris, antisocial personality attitude and behavior had been shown to increase an individual's risk to sexually reoffend. In addition, the appellant's age increased the risk that he would sexually reoffend, since men in their early 20's were, as a group, at a higher risk.

Dr. Etu opined that the appellant required a much more intense level of treatment than he would get in the community. Dr. Etu explained that in his written report he had given the appellant a “rule out” diagnosis of sexual sadism since he did not have enough information at that time to make a definitive diagnosis of that condition. However, he had received new evidence following the mental abnormality trial, and had now diagnosed the appellant with sexual sadism. The new information included the appellant's assertions that he had worked as a prostitute and participated in bondage and sadomasochism. Dr. Etu testified that the group of sex offenders with the highest rate of recidivism were those with high antisocial behavior with psychopathy, and deviant sexual interests; that group reoffended at a rate of more than 60%. According to Dr. Etu, the appellant fell into the group of sex offenders with the highest rate of recidivism.

Dr. Bard testified for the appellant. According to Dr. Bard, the appellant's personality disorder was severe, had resulted in one specific horrendous act of sexual violence, and the appellant had not been able to alter his basic personality structure since the...