State v. Ted B.

CourtNew York Supreme Court Appellate Division
Writing for the CourtPETER B. SKELOS
Citation2015 N.Y. Slip Op. 06352,15 N.Y.S.3d 366,132 A.D.3d 28
Decision Date29 July 2015
PartiesIn the Matter of STATE of New York, respondent, v. TED B. (Anonymous), appellant.

132 A.D.3d 28
15 N.Y.S.3d 366
2015 N.Y. Slip Op. 06352

In the Matter of STATE of New York, respondent,
v.
TED B. (Anonymous), appellant.

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

July 29, 2015.


[15 N.Y.S.3d 369]


Craig S. Leeds, New York, N.Y., for appellant.

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


PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, and HECTOR D. LASALLE, JJ.

CHAMBERS, J.

Under article 10 of the Mental Hygiene Law, Ted B., a detained sex offender, has both a statutory and state constitutional right to a jury trial to determine whether he suffers from a mental abnormality requiring civil management. For the reasons that follow, we conclude that an on-the-record colloquy is required to ensure that a detained sex offender validly waives that right to a jury trial on the issue of mental abnormality. This requirement was not satisfied here, where the waiver of Ted B.'s right to a jury trial was apparently based solely upon a letter he wrote to the Supreme Court, and where there is nothing in the record to show that the waiver was knowing and voluntary.

I.

On April 12, 1993, Ted B. was convicted of multiple offenses including five counts of rape in the first degree, five counts of

[15 N.Y.S.3d 370]

sodomy (now criminal sexual act) in the first degree, and sexual abuse in the first degree. For these offenses, which stemmed from his sexual assault of two women in the City of Newburgh, Ted B. was sentenced to an aggregate indeterminate term of 13 to 26 years of imprisonment. On February 2, 2010, as Ted B.'s scheduled discharge date approached, the State of New York commenced this proceeding pursuant to Mental Hygiene Law article 10, known as the Sex Offender Management and Treatment Act, seeking to civilly manage Ted B.

Prior to trial, Ted B. sent a letter to the Supreme Court explaining at length why he did not want a jury trial. He cited two reasons for requesting a nonjury trial. First, he expressed his belief that, with a nonjury trial, he could have a polygraph test admitted into evidence that would otherwise be inadmissible in a jury trial. Second, Ted B. offered, “I want you to judge me for who I am today not the past which I strongly feel a jury would.” Ted B. reiterated, at the end of his letter, “I want to prove the State was wrong about me ... which is why I want a[ ] judge trial and a polygraph test to not only show that I never told [a forensic evaluator] those things but also that you are not setting a[ ] sex-offender free that['s] seeking revenge or another victim.” The letter is stamped with the date and Justice DeRosa's name. There is no indication in the record that Ted B. discussed his letter with his attorney or with the court. Moreover, during the course of the proceedings, neither Ted B. nor his counsel confirmed in court or made a public record of his purported waiver of his right to a jury trial.

A nonjury trial was conducted, and the Supreme Court found that Ted B. suffers from a mental abnormality within the meaning of Mental Hygiene Law § 10.03. After a dispositional hearing, the Supreme Court determined that Ted B. is a dangerous sex offender requiring confinement, and directed that he be confined ( seeMental Hygiene Law § 10.07[f] ).

II.

Initially, we reject Ted B.'s contention that the State failed to sustain its burden of proving by clear and convincing evidence that he suffers from a mental abnormality and is a dangerous sex offender requiring confinement ( see id.; State v. Raul L., 120 A.D.3d 52, 58–60, 988 N.Y.S.2d 190; Matter of State of New York v. Clarence D., 82 A.D.3d 776, 777, 917 N.Y.S.2d 700).

Next, Ted B. contends that Mental Hygiene Law § 10.07 affords an absolute right to a jury trial in an article 10 proceeding, and that he did not knowingly and voluntarily waive that right since he did not execute a written waiver or acknowledge on the record that he was foregoing his right to a jury trial.

To address these contentions, we begin with an examination of the applicable statutes. It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the legislature ( see Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978), and the best evidence of the legislature's intent is the text of the statute itself ( see Matter of Theroux v. Reilly, 1 N.Y.3d 232, 239, 771 N.Y.S.2d 43, 803 N.E.2d 364). Where the statutory language is clear and unambiguous, a court should construe it so as to give effect to the plain meaning of the words used ( see Commonwealth of the N. Mariana Is. v. Canadian Imperial Bank of Commerce, 21 N.Y.3d 55, 60, 967 N.Y.S.2d 876, 990 N.E.2d 114).

Mental Hygiene Law § 10.07(a) provides that upon a finding of probable cause to

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believe that a respondent is a sex offender requiring civil management, “the court shall conduct a jury trial to determine whether the respondent is a detained sex offender who suffers from a mental abnormality” (emphasis added). Mental Hygiene Law § 10.07(b) further provides, with certain exceptions not relevant here, that article 41 of the Civil Practice Law and Rules shall apply to “the formation and conduct of [the] jury trial.” Mental Hygiene § 10.07(b) also states that “[t]he right to a trial by jury may be waived by the respondent” in an article 10 proceeding.

Relying on Mental Hygiene Law § 10.07(b), which specifies that CPLR article 41 applies to the formation and conduct of jury trials, the State argues that the threshold question of whether the respondent in an article 10 proceeding is entitled to a jury trial is governed by CPLR 4102(a). CPLR 4102(a) provides that, “if no party shall demand a trial by jury as provided herein, the right to trial by jury shall be deemed waived by all parties” (CPLR 4102[a] [emphasis added] ). The State contends that, since Ted B. never made a demand for a jury trial as required by CPLR 4102 (a), a trial by the court was properly held. Contrary to this contention, in the context of an article 10 proceeding, any reliance on CPLR 4102(a) is inappropriate. The CPLR 4102(a) requirement that a party make an affirmative demand for a jury trial is inconsistent with the plain language of Mental Hygiene Law § 10.07(a), which expressly states that the court “shall” conduct a jury trial. The word “shall” is clear and absolute.1 Critically, Mental Hygiene Law § 10.07(b) ends with the sentence, “[t]he right to a trial by jury may be waived by the respondent.” We believe that the legislature's inclusion of a “waiver” clause in Mental Hygiene Law § 10.07 (b) was deliberate and contemplated that, in order to waive the right to a jury trial in an article 10 proceeding, a respondent must take some affirmative action. There is a significant distinction between an automatic right to a jury trial in an article 10 proceeding, which may be waived, and a right to a jury trial that is conditioned upon a demand pursuant to CPLR 4102(a). Accordingly, we find that Ted B.'s failure to demand a jury trial does not constitute an implicit waiver of his right to a jury trial. Thus, we now turn to a pivotal question on this appeal: what is required to validly waive the right to a jury trial in an article 10 proceeding?

The plain reading of Mental Hygiene Law § 10.07(b) evinces that a respondent in an article 10 proceeding may waive a jury trial, but does not explicitly state the requirements for a valid waiver. By comparison, statutes which govern the right to jury trial in other types of proceedings contain specific requirements. For example, in a criminal prosecution, where a defendant's constitutional right to a jury trial is guaranteed by the Sixth Amendment to the United States Constitution, CPL 320.10(2) requires that a written waiver must be “signed by the defendant in person in open court in the presence of the court, and with the approval of the court.” In contrast, in both a proceeding under Mental Hygiene Law § 9.35 for the civil retention of a patient, and in a proceeding for the appointment of a guardian for an alleged incapacitated person, the failure to make a demand is deemed to be

[15 N.Y.S.3d 372]

a waiver of the right to a jury trial ( seeMental Hygiene Law § 81.11[f] ).

Notably, Mental Hygiene Law § 10.07(b) does not fill this statutory void. It simply directs that the provisions of article 41 of the CPLR shall apply to the “formation and conduct of [the] jury trial,” with certain exceptions where the Criminal Procedure Law is to be applied. The “formation and conduct of [the] jury trial” relates to matters such as the number of jurors necessary to form a jury, challenges to the panel, examination of prospective jurors, and the number of peremptory challenges, but does not prescribe the procedure for waiving the right to a jury trial (Mental Hygiene Law § 10.07[b] ).

In determining the requirements for a valid waiver of the right to a jury trial in an article 10 proceeding, we must consider the nature of the proceeding and the extent to which constitutional protections must be afforded. The Court of Appeals has made clear that proceedings pursuant to the Sex Offender Management and Treatment Act “are civil proceedings” (Matter of State of New York v. Floyd Y., 22 N.Y.3d 95, 104, 979 N.Y.S.2d 240, 2 N.E.3d 204; seeMental Hygiene Law § 10.01[b] [in its legislative findings, the legislature stated that “confinement of the most dangerous offenders will need to be extended by civil process in order to provide them such treatment and to protect the public” (emphasis added) ] ). Indeed, the Court of Appeals has held that the constitutional protections afforded to criminal defendants do not apply to sex offenders facing civil confinement ( see Matter of State of New York v. Floyd Y., 22 N.Y.3d at 103, 979 N.Y.S.2d 240, 2 N.E.3d 204). Thus, a respondent in an article 10 proceeding does not...

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