State v. Wilkes

• Decision Date: 01 October 2010
• Parties: In The Matter of the STATE of New York, Petitioner-Respondent, v. Harold WILKES, Respondent-Appellant. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

908 N.Y.S.2d 495

77 A.D.3d 1451

In The Matter of the STATE of New York, Petitioner-Respondent,

v.Harold WILKES, Respondent-Appellant. (Appeal No. 2.)

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

Oct. 1, 2010.

Emmett J. Creahan, Director, Mental Hygiene Legal Service, Buffalo (Kevin S. Doyle of Counsel), for Respondent-Appellant.

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

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND PINE, JJ.

MEMORANDUM:

This appeal arises from a proceeding pursuant to article 10 of the Mental Hygiene Law, in which petitioner sought the civil confinement of respondent after his criminal sentence expired. He appeals from an order committing him to a secure treatment facility, following a jury verdict determining 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 Supreme Court violated his right to confront and cross-examine the witnesses against him. First, respondent's reliance upon ( Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177) is unavailing. Crawford, which"preserv [es][a] defendant's right to confront witnesses in the context of a criminal prosecution" ( People v. Dort, 18 A.D.3d 23, 25, 792 N.Y.S.2d 236, lv. denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975), does not apply to respondent in this civil proceeding ( see People v. Bolton, 50 A.D.3d 990, 857 N.Y.S.2d 190, lv. denied 11 N.Y.3d 701, 864 N.Y.S.2d 389, 894 N.E.2d 653; People v. Brown, 32 A.D.3d 1222, 821 N.Y.S.2d 348, lv. denied 7 N.Y.3d 924, 827 N.Y.S.2d 692, 860 N.E.2d 994).

Second, respondent failed to preserve for our review the majority of his contentions concerning the reliance by petitioner's psychological experts upon hearsay information in forming their opinions. Respondent moved in limine to preclude petitioner's psychologists from relying upon hearsay information, inter alia, on the ground that such hearsay information was not sufficiently reliable to form the basis for an expert opinion. The court declined to rule on respondent's motion in advance of trial. At trial, respondent raised that objection only once, in response to the reliance by one psychologist upon "parole documents that referenced ... arrest reports regarding [a rape conviction, and conversations with respondent's] father[ ] regarding that offense." Respondent did not contend that any other specific record or document relied upon by any of the psychologists was unreliable hearsay. Consequently, respondent preserved for our review his contention that only one of the psychologists improperly relied upon hearsay documents or records other than the parole documents and the conversationswith his father in forming the psychologist's expert opinion, and his contention is thus properly before us only with respect to such documents and conversations in connection with that one psychologist ( see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745).

Insofar as respondent's contention is preserved for our review with respect to the parole documents relied upon by that one psychologist, we note that the record contains the testimony of a psychologist that such documents are accepted in the psychological profession as the basis upon which to form an opinion, and we conclude that they are sufficiently reliable to form the basis of an expert psychological opinion under the circumstances presented here. The type of documents at issue are virtually the same as those at issue in ( People v. Mingo, 12 N.Y.3d 563, 883 N.Y.S.2d 154, 910 N.E.2d 983), a case in which the Court of Appeals concluded that the documents were sufficiently reliable hearsay for use in proceedings pursuant to the Sex Offender Registration Act ( see id. at 572-574, 883 N.Y.S.2d 154, 910 N.E.2d 983; People v. Marrocco, 41 A.D.3d 1297, 839 N.Y.S.2d 385, lv. denied 9 N.Y.3d 807, 843 N.Y.S.2d 537, 875 N.E.2d 30). Based on the factors set forth by the Court of Appeals in Mingo in determining that such documents are reliable, we agree with petitioner that the courtproperly concluded that the documents in this case were sufficiently reliable to form the basis for the psychologist's expert opinion. Here, respondent pleaded guilty to the charge that was covered by the documents, he had an opportunity during the parole process to challenge the information set forth therein, and he later provided virtually the same information when the psychologist in question interviewed him, thus establishing the reliability of the information. With respect to the conversations with respondent's father, we note that he was called as a witness at trial and was questioned regarding the information at issue. Thus, the information that he provided was in evidence and was properly relied upon...