State v. Robert F.

• Decision Date: 26 December 2012
• Citation: 2012 N.Y. Slip Op. 09074,958 N.Y.S.2d 156,101 A.D.3d 1133
• Parties: In the Matter of STATE of New York, respondent, v. ROBERT F. (Anonymous), appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1133

958 N.Y.S.2d 156

2012 N.Y. Slip Op. 09074

In the Matter of STATE of New York, respondent,

v.ROBERT F. (Anonymous), appellant.

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

Dec. 26, 2012.

Mental Hygiene Legal Service, Mineola, N.Y. (Lesley M. DeLia, Arthur A. Baer, and Dennis B. Feld of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu, Laura R. Johnson, and Mark H. Shawhan of counsel), for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.

In a proceeding pursuant to Mental Hygiene Law article 10 for the civil management of Robert F., a sex offender allegedly requiring civil management, Robert F. appeals from an order of the Supreme Court, Kings County (Dowling, J.), dated September 9, 2011, which, upon the granting of the motion of the State of New York pursuant to CPLR 4401 for judgment as a matter of law on the issue of whether he is a “detained sex offender,” upon a finding, made after a jury trial, that he suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i), and upon a determination, made after a dispositional hearing, that he is currently a dangerous sex offender requiring civil confinement, granted the petition and directed that he be committed to a secure treatment facility for care, treatment, and control until such time as he no longer requires confinement.

ORDERED that the order is affirmed, without costs or disbursements.

The appellant is a convicted recidivist sex offender. On February 11, 2009, prior to his scheduled release from prison, the State of New York commenced a proceeding pursuant to Mental Hygiene Law article 10 (hereinafter an article 10 proceeding), alleging that he suffered from a mental abnormality requiring civil commitment.

Prior to the trial, the appellant unsuccessfully sought to dismiss the petition by which the State commenced the article 10 proceeding on the ground, inter alia, that he was not a “detained sex offender” as defined by Mental Hygiene Law section 10.03(g), because at the time the State commenced the article 10 proceeding he was incarcerated for his conviction of attempted promoting prison contraband in the first degree, rather than for a sex offense. The appellant also sought, prior to the trial, to preclude testimony or evidence from Dr. Katrina Colistra, a licensed psychologist employed by the New York State Office of Mental Health, on the ground, inter alia, that Dr. Colistra's examination of the appellant was conducted in violation of his right to counsel. Dr. Colistra had examined the appellant on January 13, 2009, at the request of a case review team, to determine if he was suffering from a mental abnormality, and prior to the team's recommendation to the Attorney General that he commence an article 10 proceeding seeking to place the appellant under civil management. The Supreme Court permitted Dr. Colistra to testify at the trial. At the close of evidence, and over the appellant's objection, the court granted the State's motion pursuantto CPLR 4401 for judgment as a matter of law on the issue of whether he is a “detained sex offender.” The jury unanimously found that the appellant suffered from a mental abnormality that predisposed him to commit a sex offense. The court then conducted a dispositional hearing, at which additional evidence was offered ( seeMental Hygiene Law 10.07[f] ). At the conclusion of the dispositional hearing, the Supreme Court found that the appellant was a dangerous sex offender requiring civil confinement, and, accordingly, granted the petition and directed that he be committed to a secure treatment facility for care, treatment, and control until such time as he no longer requires confinement ( seeMental Hygiene Law 10.07[f] ).

The Supreme Court properly denied the appellant's request to preclude Dr. Colistra's testimony. In an article 10 proceeding, once a person is identified as a possible dangerous sex offender requiring confinement, he or she is referred to a case review team for evaluation ( seeMental Hygiene Law § 10.05[d] ). The case review team may refer a person for a psychiatric evaluation to assist it in determining whether he or she requires civil management ( seeMental Hygiene Law § 10.05[e] ). After such an examination, the case review team determines whether the person is in need of civil management ( seeMental Hygiene Law § 10.05[e] ). The appellant's right to counsel did not attach until this article 10 judicial proceeding was commenced against him. Since the evaluation was conducted prior to the commencement of the article 10 proceeding, the appellant was not entitled to have counsel present ( seeMental Hygiene Law §§ 10.06[c], 10.08[g]; Matter of State of New York v. John P., 85 A.D.3d 1189, 925 N.Y.S.2d 893,affd.20 N.Y.3d 941, ––– N.Y.S.2d ––––, ––– N.E.2d ––––, 2012 N.Y. Slip Op. 08440 [2012];Matter of State of New York v. Pierce, 79 A.D.3d 1779, 914 N.Y.S.2d 547). Moreover, the court did not err in allowing Dr. Colistra and the State's other psychiatric expert to testify as to details of the appellant's sex offense history, “since the purpose of the testimony was to explain the basis for the experts' opinions” (Matter of State of New York v. Anonymous, 82 A.D.3d 1250, 1251, 920 N.Y.S.2d 195;seeMental Hygiene Law § 10.08[b]; Matter of State of New York v. Wilkes, 77 A.D.3d 1451, 1453, 907 N.Y.S.2d 903).

The Supreme Court also properly denied the appellant's pretrial motion to dismiss the petition. The appellant correctly contends that Penal Law § 70.30 may not be used to aggregate terms of imprisonment in order to make “detained sex offender” determinations pursuant to article 10 ( see Matter of State of New York v. Rashid, 16 N.Y.3d 1, 15–16, 917 N.Y.S.2d 16, 942 N.E.2d 225). Nonetheless, the court properly determined that the appellant was a detained sex offender on the basis that, at the time the State commenced the instant article 10 proceeding, he was incarcerated for a “ related offense,” because the appellant was convicted of attempted promoting prison contraband in the first degree, and sentenced thereon, while still incarcerated upon his underlying sex offense conviction, and there was no interruption in his incarceration between the terms imposed for his underlying sex offense conviction and the promoting prison contraband conviction ( see Matter of State of New York v. Rashid, 16 N.Y.3d at 15, 917 N.Y.S.2d 16, 942 N.E.2d 225;Matter of State of New York v. Williams, 92 A.D.3d 1274, 1276, 938 N.Y.S.2d 717;State of New York v. Maurice G., 32 Misc.3d 380, 386, 928 N.Y.S.2d 162).

The appellant contends that the Supreme Court improperly removed the question of whether he was a “detained sex offender” from the jury by directing the verdict on this issue. Pursuant to Mental Hygiene Law § 10.07(a), within 60 days of a court determining that there is probable cause that an article 10 respondent is a “sex...