State v. Keith G.

152 A.D.3d 527

58 N.Y.S.3d 504

In the Matter of STATE of New York, respondent,

v.KEITH G. (Anonymous), appellant.

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

July 5, 2017.

Mental Hygiene Legal Service, Mineola, NY (Michael D. Neville, Arthur A. Baer, and Dennis B. Feld of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York, NY (Anisha Dasgupta and Bethany A. Davis Noll of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.

Appeals from (1) a decision of the Supreme Court, Kings County (Ozzi, J.), dated December 9, 2014, and (2) an order of that court, also dated December 9, 2014. The order, made after a jury trial, granted the petition pursuant to Mental Hygiene Law article 10 and directed that the appellant be committed to a secure treatment facility until such time as he no longer requires confinement.

ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,

ORDERED that the order is reversed, on the law, without costs or disbursements, and a new trial is ordered.

The State of New York commenced this proceeding pursuant to Mental Hygiene Law article 10 for the civil management of the appellant, a convicted sex offender. Following a trial, the jury found that the appellant suffers from a "mental abnormality" as defined by the Mental Hygiene Law. Thereafter, following a separate dispositional hearing, the Supreme Court determined that the appellant is a dangerous sex offender requiring civil confinement, and thereupon, granted the petition and directed that the appellant be committed to a secure treatment facility until such time as he no longer requires confinement.

The appellant contends that the evidence was legally insufficient to establish that he suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i) because the diagnosis that was offered by the State's expert is not generally accepted in the relevant scientific community. However, that contention is unpreserved for appellate review (see Matter of State of New York v. Patrick L., 141 A.D.3d 591, 592, 35 N.Y.S.3d 695 ; Matter of State of New York v. David S., 136 A.D.3d 445, 446, 24 N.Y.S.3d 284 ). To the extent that the appellant raises additional legal sufficiency arguments, the jury's verdict was supported by legally sufficient evidence, since there was a valid line of reasoning to support the jury's determination (see Matter of State of New York v. Anonymous, 82 A.D.3d 1250, 1251, 920 N.Y.S.2d 195 ; Matter of State of New York v. Derrick B., 68 A.D.3d 1124, 1126, 892 N.Y.S.2d 140 ). Moreover, because the jury's verdict was supported by a fair interpretation of the evidence, it was not contrary to the weight of the evidence (see Mental Hygiene Law §§ 10.03[i] ; 10.07[a]; Matter of State of New York v. Ian I., 127 A.D.3d 766, 767, 7 N.Y.S.3d 199 ; Matter of State of New York v. Derrick B., 68 A.D.3d at 1126, 892 N.Y.S.2d 140 ).

However, the appellant correctly contends that reversal and a new trial are required based on the trial court's erroneous denial of his challenge to a prospective juror for cause. The record of the voir dire reveals that after the appellant's counsel disclosed that the appellant previously had committed rapes and robberies against 11 different victims and had been dubbed "the Flatbush rapist" in 1991, a prospective juror repeatedly turned away from counsel, said "Wow" on numerous occasions, and acknowledged that she remembered the Flatbush rapist. She further expressed the concern that "I got too many granddaughters," and when asked at various points if the appellant's prior offenses might influence her ability to be fair, she remarked "I just went blank," "I don't know, I—it—," and "You know I'm looking at the man and I'm—I know his face, but that's when he was young and I'm like, wow." Significantly, the prospective juror never unequivocally asserted that she could be fair and impartial following these remarks. The appellant's subsequent challenge to the prospective juror for cause was denied, and the appellant utilized a peremptory challenge to remove her from the panel.

The appellant contends that the denial of his for-cause challenge constituted error. We agree. Contrary to the State's contention, this issue is preserved for appellate...