State v. Kenneth

190 A.D.3d 33

134 N.Y.S.3d 475

In the Matter of STATE of New York, Respondent,

v.KENNETH II., Appellant.

526890

529584

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

Calendar Date: September 9, 2020

Decided and Entered: October 22, 2020

Adam H. Van Buskirk, Auburn, for appellant.

Letitia James, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.

Before: Egan Jr., J.P., Mulvey, Devine, Aarons and Colangelo, JJ.

OPINION AND ORDER

Mulvey, J. Appeals (1) from an order of the Supreme Court (Reynolds Fitzgerald, J.), entered March 19, 2018 in Cortland County, which, in a proceeding pursuant to Mental Hygiene Law article 10, among other things, denied respondent's motion to set aside the jury verdict, (2) from an order of said court, entered March 29, 2018 in Cortland County, which, in a proceeding pursuant to Mental Hygiene Law article 10, denied respondent's motion to dismiss the petition, and (3) from an order of said court, entered June 5, 2019 in Cortland County, which granted petitioner's application, in a proceeding pursuant to Mental Hygiene Law article 10, to find respondent to be a dangerous sex offender and confined respondent to a secure treatment facility.

In 2005, respondent¹ was convicted of rape in the first degree and sentenced to a prison term of 10 years, followed by five years of postrelease supervision. As respondent's 2014 conditional release date neared, Alfred Barnes, a licensed psychologist employed by the Office of Mental Health, conducted a psychiatric examination to determine whether respondent was a detained sex offender who suffered from a mental abnormality, within the meaning of Mental Hygiene Law article 10 (see Mental Hygiene Law §§ 10.03[g], [i] ; 10.05[e] ).² Barnes diagnosed respondent with other specified paraphilic disorder (hereinafter OSPD) (nonconsent) with sadistic features, and antisocial personality disorder (hereinafter ASPD) with psychopathic traits. Based on Barnes' conclusion, a Case Review Team found respondent to be a sex offender requiring civil management (see Mental Hygiene Law §§ 10.03[q] ; 10.05[e], [g] ). Petitioner then commenced this proceeding seeking an order finding same, annexing Barnes' report to its application (see Mental Hygiene Law § 10.06[a] ).

Respondent elected to waive the right to a probable cause hearing, through a notarized, written waiver, and consented to both a finding of probable cause and remaining in the custody of the Department of Corrections and Community Supervision pending disposition of the matter. Based on the papers filed, Supreme Court (Rumsey, J.) concluded that there was probable cause to believe that respondent was a sex offender requiring civil management. Prior to the start of trial, Supreme Court determined that, pursuant to Matter of State of New York v. Floyd Y. , 22 N.Y.3d 95, 979 N.Y.S.2d 240, 2 N.E.3d 204 (2013), certain hearsay basis evidence would be admissible at trial, including respondent's prior sex offenses, probation violations, assault charges and a person in need of supervision adjudication. At a July 2015 jury trial, petitioner presented the expert testimony of Barnes and another licensed psychologist, Stuart Kirschner, who, like Barnes, diagnosed respondent with ASPD with psychopathic features, but further concluded that respondent suffers from bipolar disorder, borderline personality disorder and cannabis abuse, severe, in a controlled environment. The jury found respondent to be a detained sex offender who suffers from a mental abnormality (see Mental Hygiene Law §§ 10.03[g], [i] ; 10.07[d] ).

Pending disposition, respondent moved, pro se, to substitute counsel, asserting a litany of complaints with respect to counsel's communication and performance, including counsel's alleged disregard of the evidentiary value of respondent's gender dysphoria diagnosis and counsel's failure to move to preclude evidence of certain of respondent's diagnoses from trial or request a Frye hearing regarding them. After Supreme Court denied the motion, respondent, through counsel, moved to preclude from the dispositional hearing the admission of any expert testimony regarding OSPD (nonconsent) or rape-based paraphilias by any name, or, in the alternative, for a Frye hearing, citing scholarly journals and newly-issued trial court decisions that had found that the diagnosis of OSPD (nonconsent) was not generally accepted in the relevant scientific communities. The court granted respondent's preclusion motion, based on petitioner's assertion that it did not intend to rely on such evidence and the court's determination that this evidence would be irrelevant to the disposition.

The dispositional hearing was further adjourned and, in June 2017, respondent filed a pro se motion seeking, among other relief, permission to proceed pro se and that the jury verdict be set aside due to ineffective assistance of counsel and legally insufficient evidence. Supreme Court (Reynolds Fitzgerald, J.) immediately granted respondent's request to proceed pro se but, by order entered March 19, 2018, denied the motion in all other respects. Meanwhile, in November 2017, respondent – at that point pro se – moved to dismiss the petition on numerous grounds, including failure to state a cause of action. By order entered March 29, 2018, Supreme Court denied that motion in its entirety. Respondent then moved, unsuccessfully, to vacate the prior probable cause hearing waiver.

Eventually, respondent waived the right to a dispositional hearing, citing various strategic reasons for doing so, and acknowledged that Supreme Court would enter an order requiring confinement in a secure treatment facility. Accordingly, by order entered June 5, 2019, the court adjudicated respondent a dangerous sex offender requiring civil confinement and ordered respondent confined to a secure treatment facility (see Mental Hygiene Law § 10.03[e] ). Respondent appeals from the two March 2018 orders and the June 2019 order.³

Respondent contends that, because Mental Hygiene Law article 10 does not expressly authorize respondents to waive their statutory right to a probable cause hearing, such a waiver is prohibited and that, even if such a waiver were permissible, any waiver must be on the record following a colloquy with the court in order to satisfy due process guarantees. According to respondent, if the waiver of a probable cause hearing was invalid, everything that followed thereafter was likewise invalid. First addressing mootness, the remedy for any error with respect to respondent's waiver of the right to a probable cause hearing would only involve remittal for such a hearing to be held, and respondent has since been found after trial to have a mental abnormality by clear and convincing evidence, a higher standard than would be applied at a probable cause hearing (compare Mental Hygiene Law § 10.07[d], with Mental Hygiene Law § 10.06[k] ). Accordingly, respondent's challenges to Supreme Court's denial of the motion to vacate the probable cause hearing waiver are moot (see People ex rel. Charles B. v. McCulloch, 155 A.D.3d 1559, 1560, 64 N.Y.S.3d 809 [2017], lv denied 31 N.Y.3d 906, 2018 WL 2055678 [2018] ; see also Matter of Pelton v. Crummey, 156 A.D.3d 1305, 1305–1306, 68 N.Y.S.3d 537 [2017] ; People ex rel. Wright v. Demars, 153 A.D.3d 1466, 1467, 62 N.Y.S.3d 549 [2017] ; People ex rel. David v. New York State Div. of Parole, 12 A.D.3d 963, 963, 784 N.Y.S.2d 912 [2004] ), so we will not address them.

Respondent did not preserve most of the current arguments challenging the legal sufficiency of the evidence at trial. Respondent now argues that petitioner failed to present legally sufficient evidence because the diagnosis of OSPD (nonconsent) is not generally accepted in the relevant scientific communities, that ASPD alone cannot form the basis for a finding of mental abnormality, and that petitioner failed to establish that respondent has serious difficulty controlling sex-offending conduct. As to OSPD (nonconsent), respondent failed, prior to trial, to seek to preclude any evidence related to said diagnosis or request a Frye hearing on that topic. Respondent further failed, at trial, to object to the challenged testimony or move for a directed verdict on this basis or any other (see CPLR 4401 ), and such issue "cannot now be resurrected by way of respondent's CPLR 4404 motion" ( Matter of State of New York v. Robert G., 179 A.D.3d 1164, 1166, 114 N.Y.S.3d 777 [2020], lv denied 35 N.Y.3d 908, 2020 WL 3422464 [2020] ; see Matter of State of New York v. David S., 136 A.D.3d 445, 446–447, 24 N.Y.S.3d 284 [2016] ). Also unpreserved is the argument regarding respondent's inability to control sex-offending behavior (see Matter of State of New York v. Robert G., 179 A.D.3d at 1166–1167, 114 N.Y.S.3d 777 ; Matter of State of New York v. Steven M., 159 A.D.3d 1421, 1422, 73 N.Y.S.3d 826 [2018], lv denied 31 N.Y.3d 913, 2018 WL 3148917 [2018] ). Despite the lack of preservation for most aspects of the legal sufficiency argument, we will fully address that argument in light of respondent's assertion that counsel was ineffective for failing to take actions that would have fully preserved it.

The question in a Mental Hygiene Law article 10 trial is whether a respondent is a "detained sex offender who suffers from a mental abnormality" ( Mental Hygiene Law § 10.07[a] ). Respondent conceded to meeting the definition of a detained sex offender (see Mental Hygiene Law § 10.03[g] ). Mental abnormality is defined 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] ). With respect to the predicate disorders at issue here, the Court of Appeals has held that ASPD...