State v. Los

118 A.D.3d 805

987 N.Y.S.2d 207

2014 N.Y. Slip Op. 04205

In the Matter of STATE of New York, respondent,

v.TODD L. (Anonymous), appellant.

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

June 11, 2014.

Mental Hygiene Legal Service, Mineola, N.Y. (Timothy M. Riselvato and Dennis B. Feld of counsel), for appellant.

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

In a proceeding pursuant to Mental Hygiene Law article 10 for the civil management of Todd L., an alleged sex offender requiring civil management, Todd L. appeals from an order of the Supreme Court, Queens County (Aloise, J.), entered April 17, 2013, which, upon findings, made after a jury trial, that he committed a sexually motivated designated felony offense and that he was a detained sex offender suffering from a mental abnormality as defined in Mental Hygiene Law § 10.03(i), and a determination, made after a dispositional hearing, that he currently is 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 reversed, on the law and in the exercise of discretion, the finding that the appellant committed a sexually motivated designated felony offense is vacated, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the issue of whether the appellant committed a sexually motivated felony offense, and, if necessary, a new dispositional hearing.

The appellant was incarcerated pursuant to a sentence imposed upon his conviction of, inter alia, promoting prostitution in the second degree (Penal Law § 230.30[1] ), promoting prostitution in the third degree (Penal Law § 230.25), and assault in the second degree (Penal Law § 120.05[2] ). Shortly before his release from prison, the State of New York filed a petition pursuant to Mental Hygiene Law article 10, also known as the Sex Offender Management and Treatment Act, seeking the appellant's civil management ( see Mental Hygiene Law § 10.06[a] ). The State alleged, inter alia, that the appellant's convictions of promoting prostitution in the second degree and assault in the second degree qualified him as a sex offender in that he was convicted of two designated felonies that were sexually motivated and committed prior to the effective date of Mental Hygiene Law article 10 ( see Mental Hygiene Law § 10.03[f], [p], [s] ).

A jury trial was conducted to determine whether the appellant was a detained sex offender who suffered from a mental abnormality ( see Mental Hygiene Law § 10.07[a] ). A crime is a “sex offense” under Mental Hygiene Law article 10 if it is listed as a “designated felony” under Mental Hygiene Law § 10.03(f), and was “sexually motivated” (Mental Hygiene Law § 10.03[p] ). A “sexually motivated” felony “means that the act or acts constituting a designated felony were committed in whole or in substantial part for the purpose of direct sexual gratification of the actor” (Mental Hygiene Law § 10.03[s] ). Designated felonies under Mental Hygiene Law § 10.03(f) include promoting prostitution in the second degree and assault in the second degree ( see Penal Law § 230.30; Penal Law § 120.05). Promoting prostitution in the third degree is not a designated felony under Mental Hygiene Law § 10.03(f). However, at the jury trial, the first question on the verdict sheet asked:

“Does the [appellant's] commission of assault in the second degree or promoting prostitution in the second degree or promoting prostitution in the third degree constitute a sexually motivated offense?” (emphasis added).

The appellant argues that the crime of promoting prostitution in the third degree is not a “designated felony” under Mental Hygiene Law § 10.03(f) and, therefore, does not constitute a sex offense that could subject him to civil confinement, even if the jury concluded that the offense was sexually motivated. The State contends that the appellant did not preserve this argument for appellate review and that, in any event, any error was harmless.

Generally, where no objection to an alleged error is advanced at trial, the objection is unpreserved for appellate review ( see People v. Becoats, 17 N.Y.3d 643, 650, 934 N.Y.S.2d 737, 958 N.E.2d 865;People v. Hawkins, 11 N.Y.3d 484, 490, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). However, the inclusion on the verdict sheet of a crime that was not a designated felony within the meaning of Mental Hygiene Law § 10.03(f) presents such a fundamental error that the appellant's failure to object does not bar our review of the issue in the exercise of discretion ( see Gallagher v. Samples, 6 A.D.3d 659, 660, 776 N.Y.S.2d 585;Decker v. Rassaert, 131 A.D.2d 626, 627, 516 N.Y.S.2d 710;DiGrazia v. Castronova, 48 A.D.2d 249, 252, 368 N.Y.S.2d 898). At trial, the State was required to establish by clear and convincing evidence that the appellant was a detained sex offender who suffered from a mental abnormality ( seeMental Hygiene Law § 10.07[d] ). “It is an established rule of Supreme Court jurisprudence that a general verdict of guilt must be set aside where the jurors in reaching their verdict may have relied on an illegal ground or on an alternative legal ground and there is no way of knowing which ground they chose” ( People v. Martinez, 83 N.Y.2d 26, 32, 607 N.Y.S.2d 610, 628 N.E.2d 1320, citing Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371;see Yates v. United States, 354 U.S. 298, 311–312, 77 S.Ct. 1064, 1 L.Ed.2d 1356;Stromberg v. California, 283 U.S. 359, 367–368, 51 S.Ct. 532, 75 L.Ed. 1117;see also People v. Becoats, 17 N.Y.3d at 654, 934 N.Y.S.2d 737, 958 N.E.2d 865). “Thus, the Supreme Court has consistently vacated general verdicts where one of the choices afforded to the jury was to find guilt on an unconstitutional theory. It has rejected the contention that the verdict should be upheld because the fact finder presumably based...