State v. Suggs

• Decision Date: 18 April 2011
• Citation: 920 N.Y.S.2d 644,2011 N.Y. Slip Op. 21135,31 Misc.3d 1009
• Parties: STATE of New York, Petitionerv.John SUGGS, Respondent.
• Court: New York Supreme Court

31 Misc.3d 1009

920 N.Y.S.2d 644

2011 N.Y. Slip Op. 21135

STATE of New York, Petitioner

v.John SUGGS, Respondent.

Supreme Court, New York County, New York.

April 18, 2011.

New York State Attorney General Eric Schneiderman (Assistant Attorneys General Breda Huvane and Joseph Muia, of counsel) for the Petitioner.Mental Hygiene Legal Services (Jessica Botticelli and Deborah P. Mantell of counsel) for the Respondent.DANIEL P. CONVISER, J.

This decision addresses what the Court believes is an issue of first impression under New York State's Sex Offender Management and Treatment Act (Article 10 of the Mental Hygiene Law, [“SOMTA”] ): May the State during an Article 10 trial compel the respondent to testify as a witness for the State? This Court concludes that the answer is no.

STATEMENT OF FACTS

The Respondent, John Suggs, pled guilty in 1968 to Rape in the First Degree and Robbery in the First Degree, in satisfaction of a number of rape, sodomy, robbery, assault and other charges arising from multiple attacks of women he had allegedly committed in the vicinity of City College in Manhattan. He was sentenced to 5–15 years incarceration on that plea. After protracted state and federal appeals, however, his guilty plea was invalidated by the grant in federal district court of the Respondent's petition for a writ of habeas corpus in 1978. The Court found that Mr. Suggs was not mentally competent to enter the guilty plea that had resulted in his conviction ten years earlier. The district court's decision was affirmed by the Second Circuit in Suggs v. LaVallee, 570 F.2d 1092 (1978). Mr. Suggs was released from prison in 1978.

He remained at liberty for 28 days before being charged with rape again. He was convicted of that rape charge and of robbery in 1978 and received a sentence of 74 months to 20 years incarceration. Four years after his release from prison on those charges, he committed another rape. He was convicted of Rape in the First degree by forcible compulsion in 1996 and received a determinate sentence of 12 1/2 years incarceration. The State filed a petition for sex offender civil management under Article 10 of the Mental Hygiene Law against the Respondent on January 28, 2009.

A SOMTA jury trial commenced on January 18, 2011 and concluded on January 28, 2011. The State presented the testimony of two psychologists, Dr. Stuart Kirschner and Dr. Tricia Petersen who both opined that the Respondent suffered from a Mental Abnormality under the statute. The Respondent presented the testimony of a third psychologist, Dr. Joseph Plaud, who opined that the Respondent did not suffer from such a Mental Abnormality.

Prior to the close of the State's case, the State moved to call the Respondent as a witness. The Respondent objected, arguing that the State was not entitled, for a number of reasons discussed infra, to call him against his will at an Article 10 proceeding. The State had earlier alerted the Court and the Respondent that they might be moving to call the Respondent as a witness and the Court had previously heard legal arguments on the issue. On January 26, 2011, the Court denied the State's motion to call the Respondent as a witness stating a written decision would follow. The instant decision contains the Court's conclusions on the issue. On January 28, 2011, the jury returned a unanimous verdict finding that the Respondent suffered from a Mental Abnormality. The Respondent was ordered to continue to be confined in a Secure Treatment Facility and a hearing to determine whether the Respondent should be confined or placed on a regimen of strict and intensive supervision and treatment under the statute is now pending.

CONCLUSIONS OF LAW

In the Court's view, there are five constitutional and statutory provisions which are relevant to the instant question:

— The Fifth Amendment to the United States Constitution;

— Article I, § 6 of the New York State Constitution (the state analogue to the Fifth Amendment);

— CPLR 4512, entitled “Competency of interested witness or spouse”;

— CPLR 4501 entitled “Self-incrimination”; and

— Article 10 of the Mental Hygiene Law.

As discussed infra, although questions closely related to the one here have been the subject of disagreement among state and federal courts over the past thirty years, there is no clear right against self-incrimination in SOMTA proceedings which can be derived from the federal or state constitutions or the CPLR. The language of Article 10 itself, however, in the Court's view, indicates that the Legislature did not intend to allow the State to call SOMTA respondents as witnesses for the state over a respondent's objection. The relevant constitutional and statutory provisions outside Article 10 are first examined here. Following that discussion, the provisions of Article 10 itself which are relevant to the question are reviewed.

The Fifth Amendment to the United States Constitution

The self-incrimination clause of the Fifth Amendment to the United States Constitution which is applicable to the states by virtue of the 14th Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself. In Allen v. Illinois, 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986), the United States Supreme Court considered whether proceedings under the Illinois “Sexually Dangerous Persons Act” were criminal within the meaning of the Fifth Amendment's guarantee against compulsory self-incrimination. The Illinois statute defined sexually dangerous persons as those suffering from certain defined mental disorders and criminal propensities towards the commission of sexual offenses. The trial court ordered the Defendant to submit to two psychiatric examinations and then allowed psychiatric opinions derived from those examinations to be used at a trial in which the Defendant was found to meet the criteria defined by the statute. The Defendant challenged the finding arguing that these compulsory psychiatric examinations violated his privilege against self-incrimination.

In a 5–4 majority opinion authored by Justice Rehnquist, the Court held that those proceedings were not criminal and that the privilege against mandatory self-incrimination did not apply to them.¹ The Court held that the question of whether a particular proceeding is criminal for purposes of the Fifth Amendment's self-incrimination clause is first a question of statutory construction. To answer that question, it must be determined whether the statute on its face is ostensibly a civil or a criminal proceeding. The Court held the Illinois statute was designated as a civil statute. In such cases, the Court explained, in order to be deemed a criminal proceeding, the statute at issue must be “so punitive either in purpose or effect” as to negate the State's allegedly non-punitive purpose. 478 U.S. at 368–69, 106 S.Ct. 2988. The Court concluded that the statute did not meet that test and that the Illinois law was therefore a civil statute to which the Fifth Amendment's self-incrimination clause did not apply.

Justice Stevens, writing for the dissent, argued that a number of considerations indicated that the Illinois statute was a criminal proceeding for purposes of the Fifth Amendment. He noted that a finding under the Act resulted in a deprivation of liberty at least as significant as that arising in a typical criminal trial and that the criminal law occupied a central place in the sexually dangerous persons determination. Justice Stevens opined that “[w]hen the criminal law casts so long a shadow on a putatively civil proceeding, I think it clear that the procedure must be deemed a criminal case' within the meaning of the Fifth Amendment”. 478 U.S. at 376, 106 S.Ct. 2988.

In State v. Nelson, 30 Misc.3d 715, 911 N.Y.S.2d 594 (N.Y.Sup., New York County 2010), this Court recently analyzed the question of whether the retroactive designation of certain non-sex crimes as “sexually motivated” felonies eligible for coverage under SOMTA violated the ex post facto clause of the United States constitution. Relying upon many of the same considerations as the majority opinion of the United States Supreme Court in Allen, this Court held that SOMTA's retroactive designation of certain prior criminal convictions as sexually motivated was a civil procedure. SOMTA and statutes similar to SOMTA have also been held to be civil proceedings by New York appellate courts and the United States Supreme Court. See State v. Wilkes, 77 A.D.3d 1451, 908 N.Y.S.2d 495 (4th Dept.2010); Kansas v. Hendricks, 521 U.S. 346, 369, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). Courts have nevertheless recognized the profound liberty interests at stake in SOMTA proceedings and the need for the procedures resulting in a deprivation of liberty under the statute to meet the requirements of due-process. “Involuntary civil confinement [pursuant to Article 10] may entail indefinite confinement, [which] could be a more intrusive exercise of state power than incarceration following a criminal conviction' ”. See Mental Hygiene Legal Service v. Spitzer, ––– F.Supp.3d ––––, 2007 WL 4115936, at 7 (S.D.N.Y.2007), aff'd, Mental Hygiene Legal Services v. Paterson 2009 WL 579445 (2d Cir.2009), quoting, Project Release v. Prevost, 722 F.2d 960, 971 (2d Cir.1983). “[F]reedom from physical restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action ...' ”. Hendricks, supra, 521 U.S. at 356, 117 S.Ct. 2072, quoting Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992).

The Court in State v. C.B., 23 Misc.3d 1130(A), 2009 N.Y. Slip. Op. 51010(U), 2009 WL 1460779 (Bronx County 2009), confronting the direct question at issue here, held that “[n]o Fifth Amendment right applies in this civil, sex offender commitment proceeding [pursuant to Article 10 of the Mental Hygiene Law]”. Slip Op. at 3. The Respondent's claim in C.B. was that prior...