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State v. Andrew O.

December 3, 2009

IN THE MATTER OF STATE OF NEW YORK, RESPONDENT,
v.
ANDREW O., APPELLANT.



Appeal from an order of the Supreme Court (Seibert, J.), entered June 23, 2008 in Saratoga County, which, in a proceeding pursuant to Mental Hygiene Law article 10, found respondent to be a dangerous sex offender and confined him to a secure treatment facility.

The opinion of the court was delivered by: Peters, J. P.

MEMORANDUM AND ORDER

Calendar Date: September 15, 2009

Before: Peters, J. P., Spain, Rose, Kane and Stein, JJ.

In 1986, respondent pleaded guilty to one count of sexual abuse in the second degree arising out of an incident involving his then five-year-old adopted daughter. He was sentenced to three years of probation and ordered to vacate the family residence and participate in therapy. Over one year later, respondent was permitted to return to his residence. Within just one month, and despite being on probation, respondent again began sexually abusing the child. He was later arrested and, in June 1988, convicted upon his plea of guilty of one count of sexual abuse in the first degree and sentenced to a prison term of 2a to 7 years. In August 1992, after serving four years in prison, respondent was released on parole. A parole violation warrant was issued in March 1993, charging respondent with violating the conditions of his parole by, among other things, establishing a romantic relationship with a woman who had a two-year-old daughter, failing to notify his parole officer of this fact and providing false information to the parole officer regarding the relationship. Following a hearing, respondent's parole was revoked and he was reincarcerated until May 1994. Approximately one year after his release, respondent moved in with the same woman with whom he had established a relationship while on parole, as well as her minor daughter. During the summer of 1998, respondent sexually abused the daughter. Following a written statement made to police, he pleaded guilty to one count of sexual abuse in the first degree in full satisfaction of a multicount indictment and was sentenced to seven years in prison to be followed by five years of postrelease supervision.

In August 2007, petitioner filed a petition seeking an order authorizing respondent's civil management pursuant to Mental Hygiene Law article 10. The proceeding was thereafter removed to Saratoga County (see Mental Hygiene Law § 10.06 [b]) and, following a hearing, Supreme Court (Ferradino, J.) found that there was probable cause to believe that respondent was a sex offender requiring civil management (see Mental Hygiene Law § 10.06 [g], [k]; § 10.03 [q]) and ordered that he be transferred to the custody of the Office of Mental Health. A jury trial was subsequently held, at the conclusion of which the jury determined that respondent suffers from a "mental abnormality" as defined under Mental Hygiene Law article 10 (Mental Hygiene Law §§ 10.07, 10.03 [i]). Following a bench trial, Supreme Court (Seibert, J.) found respondent to be a dangerous sex offender requiring confinement and committed him to a secure treatment facility (see Mental Hygiene Law § 10.07 [f]; § 10.03 [e]). He now appeals.

Respondent first contends that the jury's determination that he suffers from a mental abnormality is against the weight of the evidence. Pursuant to Mental Hygiene Law article 10, a "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]; see State of N.Y. ex rel. Harkavy v Consilvio, 8 NY3d 645, 651 n 2 [2007]).

At trial, petitioner presented the expert testimony of Christine Rackley, a psychiatrist and member of the Office of Mental Health's case review team, and Roger Harris, a forensic psychologist. Based upon their independent interviews with respondent and review of his case summary, parole reports, and prison, criminal and sex offender records, both Rackley and Harris concluded that respondent suffers from a "mental abnormality" as defined under Mental Hygiene Law article 10. Both also stated that, in making such a determination, they do not rely upon the results of any actuarial risk assessments (hereinafter ARAs), such as the STATIC-99,*fn1 since the professional community uniformly views the STATIC-99 and other ARAs as having little, if any, role in determining whether an individual suffers from a mental abnormality. Rather, according to both Rackley and Harris, the professional community examines the offender's past behavior.

In that regard, Rackley explained that one's ability to control his or her behavior is generally measured by how such person responds and adapts after suffering sanctions as a result of his or her conduct. She found that, given that respondent has sexually reoffended twice since his initial 1986 conviction, his inability to abide by parole conditions and discharge from a sex offender treatment program while incarcerated, respondent has a serious difficulty controlling his pedophile predilections. She also noted that respondent externalized the blame for his offenses and minimized the severity of his conduct -- claiming that the children's mothers made him feel inadequate and deprived him of sex, that he had asked the victims if it was okay for him to touch them and, in one situation, told the victim to tell her mother if he did it again -- conduct which further evinced his inability to control his sexual impulses.

Harris testified that respondent suffers from both pedophilia and antisocial personality disorder,*fn2 and that his conduct has repeatedly demonstrated that his sexual arousal from prepubescent females clearly affects his cognition and ability to control his behavior. Harris stated that, in spite of the repercussions for sexually reoffending, respondent was convicted of multiple sex offenses, violated probation and parole, failed to succeed in a sex offender treatment program and indicated to parole officers that he would not abide with conditions -- specifically stating that he would "live [his] life the way [he] want[s] to" and would violate "if they hound the s*** out of [him] again." Like Rackley, Harris opined that respondent repeatedly deflected the responsibility for his conduct onto the mothers of the victims, outside influences and the victims themselves and rationalized his behavior despite his recognition that his conduct was wrong. Harris also found it highly significant that, after respondent returned following his removal from his home and family, he could not prevent himself from sexually reoffending against his adopted daughter, even going to the extreme measures of slipping the latch on her door (which respondent's then wife installed in order to prevent respondent's access) on multiple occasions in order to gain access to her, and abusing her on other occasions despite the presence of an adult babysitter in the house. Indeed, even after serving four years in prison, respondent continued to sexually reoffend.

Respondent presented the expert testimony of Daniel Kriegman, a licensed psychologist with extensive experience in treating and diagnosing sex offenders in Massachusetts. While licensed in Massachusetts, Kriegman was not licensed in New York, had testified solely for the defense for over a decade, and had never testified in a Mental Hygiene Law article 10 proceeding in New York. Although he agreed that respondent met the criteria for a diagnosis of pedophilia, Kriegman opined that there is no evidence that respondent is currently predisposed to commit a sex offense. Contrary to the testimony of petitioner's experts, Kriegman testified that a person's predisposition is best determined through the use of ARAs such as the STATIC-99. Kriegman scored respondent as a 3 on the STATIC-99, indicating a moderate to low risk of reconviction, and classified him as an "incest offender" because he lived in a family unit with each of his victims. Given these findings and respondent's age, Kriegman found that statistically there was only a five percent rate of recidivism. Kriegman acknowledged that respondent denied and minimized his conduct, was removed from sex offender treatment and told the probation officer that he would not abide by conditions, yet opined that the likelihood of reoffense was not affected by these facts. He ultimately concluded that respondent does not suffer from a mental abnormality as that term is defined under Mental Hygiene Law article 10.

While respondent argues that Kriegman's opinion should have been accorded more weight than those of Harris and Rackley, "[t]he trier of fact is in the best position to evaluate the weight and credibility of conflicting expert medical and psychiatric testimony" (Matter of State of New York v Donald N., 63 AD3d 1391, 1394 [2009]; see Matter of George L., 85 NY2d 295, 305 [1995]; Matter of State of New York v Shawn X., ___ AD3d ___, ___, 2009 NY Slip Op 07547, *4 [2009]). To that end, we find it significant that, during cross-examination, Kriegman acknowledged that his Mental Hygiene Law article 10 evaluation report, which formed the basis of his opinion and which he had edited 30 to 40 times, contained numerous errors and omissions. For example, such report incorrectly stated the year in which respondent sexually abused his girlfriend's daughter and the length of time that respondent was removed from his residence after he first offended against his adopted daughter. Kriegman admitted that, had he known that respondent was actually removed from his residence for over one year and had been home for only a month before he reoffended, it would have been significant in relation to respondent's ability to control his urges. Moreover, Kriegman's report failed to contain any mention of the fact that respondent slipped the lock on his daughter's door in order to gain access to her. Not insignificantly, Kriegman was also confronted with his expert testimony in a prior case wherein he opined that "when offenders don't learn from more than a year in prison, I consider that a sign of persistence . . . [and that] they clearly haven't learned anything." Thus, upon our review of the record as a whole, and according deference to the jury's credibility determinations, we find no basis upon which to disturb its determination that petitioner proved, by clear and convincing evidence, that respondent suffers from a mental abnormality.

Respondent next asserts that he was deprived of a fair trial due to Supreme Court's erroneous evidentiary rulings and misconduct on the part of petitioner's counsel. Initially, we agree that counsel's inquiry of Kriegman on cross-examination regarding Yoism, a religion he had founded, was improper (cf. People v Wood, 66 NY2d 374, 378 [1985]). While we fully join in the dissent's recognition that interjection of a party's religious beliefs or observances has no place in either a criminal or civil trial, we cannot agree with its conclusion that a new trial is warranted in this case. Although petitioner briefly questioned Kriegman regarding his founding of Yoism and its beliefs, the balance of petitioner's extensive cross-examination, as previously described, severely undermined Kriegman's credibility as well as the factual basis for his opinion that respondent suffered a mental abnormality. In light of this, we conclude that the objectionable questioning regarding Yoism, within the context of the entire trial, did not substantially influence the jury's verdict (see Biello v Albany Mem. Hosp., 49 AD3d 1036, 1038 [2008]; Price v New York City Hous. Auth., 244 AD2d 186, 186 [1997], affd 92 NY2d 553 [1998]). With respect to petitioner's summation, although certain comments made by counsel were improper, Supreme Court sustained respondent's objections thereto and provided limiting instructions to the jury, thus mitigating any harm to respondent (see Hitchcock v Best, 247 AD2d 769, 769 [1998]). Further, the challenged remarks represented only a small portion of counsel's lengthy summation and were not sufficiently egregious, either alone or in the aggregate, to "permeate[] the trial and create[] a climate of hostility that effectively destroyed [respondent's] ability to obtain a fair trial" (DiMichel v South Buffalo Ry. Co., 80 NY2d 184, 198 [1992]; see Hitchcock v Best, 247 AD2d at 769; Rohring v City of Niagara Falls, 192 AD2d 228, 230-231 [1993], affd 84 NY2d 60 [1994]; compare Berkowitz v Marriott Corp., 163 AD2d 52, 53-54 [1990]).

Addressing respondent's claims of evidentiary error, we first find that his records from the Division of Criminal Justice Services and the Board of Examiners of Sex Offenders were properly admitted as certified business records (see CPLR 4518 [c]). Next, inasmuch as respondent stipulated to the admission of his sex offender treatment records, he cannot now argue that Rackley should not have been permitted to describe their contents for purposes of explaining the basis of her opinion. Lastly, Supreme Court did not err in permitting Rackley to communicate the contents of a sworn statement made by a 14-year-old girl regarding an alleged sexual incident involving respondent. Rackley's hearsay testimony in this regard was "for the limited purpose of informing the jury of the basis of [her] opinion and not for the truth of the matters related" (O'Brien v Mbugua, 49 AD3d 937, 938 [2008] [internal quotation marks and citation omitted]), and her expert opinion, although partly based upon this out-of-court statement, was not rendered inadmissible since this 14-year-old girl was subsequently called as a witness and cross-examined regarding that very incident and her sworn statement (see Hambsch v New York City Tr. Auth., 63 NY2d 723, 726 [1984]; People v Sugden, 35 NY2d 453, 461 [1974]; Brown v County of Albany, 271 AD2d 819, 820 [2000], lv denied 95 NY2d 767 [2000]).*fn3 Contrary to ...


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