State v. Karl M.

192 A.D.3d 1119

145 N.Y.S.3d 550

In the Matter of STATE of New York, respondent,

v.KARL M. (Anonymous), appellant.

2017–09328

Index No. 32097/11

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

Argued—January 26, 2021

March 31, 2021

Craig S. Leeds, New York, NY, for appellant.

Letitia James, Attorney General, New York, N.Y. (Anisha S. Dasgupta and Ari J. Savitzky of counsel), for respondent.

LEONARD B. AUSTIN, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a proceeding pursuant to Mental Hygiene Law article 10 for the civil management of Karl M., a sex offender allegedly requiring civil management, Karl M. appeals from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated August 3, 2017. The order, upon a finding, made after a jury trial, that Karl M. 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 a dangerous sex offender requiring civil confinement, in effect, granted the petition and directed that he be committed to a secure treatment facility until such time as he no longer requires confinement.

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

In 2004, the appellant was convicted, upon his plea of guilty, of attempted rape arising from an incident involving a then 18–year–old guest at a New Year's Eve party he had hosted. The appellant had previously pleaded guilty in 1988 to sexual abuse in the third degree, involving sexual contact with a person who was then 14 years old; consented to a Family Court adjudication on abuse and neglect charges involving the sexual abuse of his then-minor children; and was convicted, after a jury trial, in 1999, of sexual abuse in the second degree (two counts), sexual contact with a person under the age of 14, and endangering the welfare of a minor with respect to incidents involving his then 12–year–old stepdaughter and her then 12–year–old friend.

In 2007, the State of New York commenced this proceeding in the Supreme Court, Oneida County, pursuant to Mental Hygiene Law article 10 for the civil management of the appellant. A jury found the appellant to be a detained sex offender with a mental abnormality that, inter alia, predisposed him to commit further sex offenses. The Appellate Division, Fourth Department, reversed an order committing the appellant to civil confinement based upon its determination that 22 prospective jurors were improperly excluded by the Commissioner of Jurors rather than by the trial court and remitted the matter for a new trial (see Matter of State of New York v. Muench, 85 A.D.3d 1581, 925 N.Y.S.2d 291 ).

The matter was subsequently transferred to the Supreme Court, Suffolk County, where a new trial was conducted. Upon retrial, the jury found that the appellant suffers from a mental abnormality within the meaning of Mental Hygiene Law § 10.03(i). Following a dispositional hearing, the court determined that the appellant is a dangerous sex offender requiring civil confinement. In an order dated August 3, 2017, the court, in effect, granted the petition and directed that the appellant be committed to a secure treatment facility.

"Mental Hygiene Law article 10 is designed to reduce the risks posed by, and to address the treatment needs of, sex offenders who suffer from mental abnormalities that predispose them to commit repeated sex crimes" ( Matter of State of New York v. Dennis K., 27 N.Y.3d 718, 726, 37 N.Y.S.3d 765, 59 N.E.3d 500 ; see Mental Hygiene Law §§ 10.01[b] ; 10.03[i]). The law defines "mental abnormality" as "a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct" ( Mental Hygiene Law § 10.03[i] ). Accordingly, to meet this statutory definition, "not only must the State establish by clear and convincing evidence the existence of a predicate ‘condition, disease or disorder,’ it must also link that ‘condition, disease or disorder’ to a person's predisposition to commit conduct constituting a sex offense and to that person's ‘serious difficulty in controlling such conduct’ " ( Matter of State of New York v. Dennis K., 27 N.Y.3d at 726, 37 N.Y.S.3d 765, 59 N.E.3d 500 ).

Here, contrary to the appellant's contention, the jury's finding that he suffered from a "mental abnormality" as defined in Mental Hygiene Law § 10.03(i) was not against the weight of the evidence (see Matter of State of New York v. Marcello A., 180 A.D.3d 786, 790, 118 N.Y.S.3d 688 ; Matter of State of New York v. Kaysheem P., 175 A.D.3d 692, 693, 105 N.Y.S.3d 302 ; Matter of State of New York v. Dennis K., 120 A.D.3d 694, 695, 991 N.Y.S.2d 125, affd 27 N.Y.3d 718, 37 N.Y.S.3d 765, 59 N.E.3d 500 ). Moreover, clear and convincing evidence supports the Supreme Court's finding, after a dispositional hearing, that the appellant's mental abnormality involves such a strong predisposition to commit sex offenses and such an inability to control his behavior that he is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility, and its concomitant determination that the appellant is a dangerous sex offender requiring confinement (see Mental Hygiene Law § 10.07[f] ; Matter of State of New York v. Gary C., 169 A.D.3d 1054, 1055, 92 N.Y.S.3d 891 ; Matter of State of New York v. Abdul A., 123 A.D.3d 1047,1049, 999 N.Y.S.2d 501 ).

The Supreme Court properly denied the appellant's pro se motion to dismiss the petition, made on the ground that he was wrongfully convicted in 2004 of attempted rape on the basis that the prosecution withheld evidence. "When a respondent previously has been found, beyond a reasonable doubt, to have committed a sex offense ... that respondent's status as a sex offender is deemed established and may not be relitigated at the Mental Hygiene Law article 10 trial" ( Matter of State of New York v. Daniel OO., 88 A.D.3d 212, 215, 928 N.Y.S.2d 787 ; see Mental Hygiene Law § 10.07[c] ).

The appellant contends that the Supreme Court should have precluded the expert he retained, Joe Scroppo, a psychologist, from testifying as a witness during the State's case in chief. Generally, the question of whether expert testimony is admissible is addressed to the sound discretion of the trial court (see People v. Gibbs, 157 A.D.2d 799, 799, 550 N.Y.S.2d 400 ). The appellant's contention that his ability to effectively cross-examine Scroppo during the first phase of the trial was impeded because Scroppo was going to testify on...