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In re Application of State

Supreme Court, Bronx County

April 21, 2010

Matter of the Application of the The State of New York, Petitioner,
v.
Clifton Mack, Respondent,

Russell T. Seeman for the New York State Attorney General's Office for Petitioner.

Sadie Zea Ishee for Mental Hygiene Legal Services for Respondent.

Michael A. Gross, J.S.C.

In January 2010, this Court presided over a jury trial conducted under Article 10 of the Mental Hygiene Law (MHL) to determine whether respondent currently has a mental abnormality as defined by MHL§10.03(i). On January 13, 2010, the jury returned a verdict that respondent did not have a mental abnormality.

On January 14, 2010, petitioner made an oral application for a motion schedule[1] to set aside the jury's verdict. On February 16, 2010, petitioner filed a motion pursuant to CPLR § 4404(a) to set aside the verdict arguing it was against the weight of the evidence, and a new trial should be granted. On March 1, 2010, respondent filed a response in opposition.

This Court finds that the jury verdict was against the weight of the evidence. However, for the reasons set forth below, the Court lacks the authority under MHL Article 10 to set aside the verdict pursuant to CPLR § 4404(a).

Procedural History

In 1986, respondent was convicted of Attempted Sexual Abuse in the First Degree for an incident in which he exposed himself to a group of young boys, and also tried to disrobe two of them. Respondent was sentenced to five years probation.

While on probation, respondent was arrested for sexually abusing boys to whom he taught karate. In 1991, respondent pleaded guilty to four counts of Sodomy in the First Degree and was sentenced to an indeterminate term of imprisonment of 8¼ to 16½ years. Although the investigation revealed that respondent had sexually abused as many as ten boys, the prosecution was based on the abuse of a 10-year-old boy forced to perform repeated acts of oral sex on respondent during breaks in karate lessons.

While in prison, respondent had disciplinary infractions for possession of publications containing depictions of naked children as well as materials and photographs from an organization created to promote sexual activity between adults and young boys.[2]

Shortly before respondent completed his term of imprisonment, petitioner filed a petition for civil management under MHL Article 10. In January 2010, this Court conducted a jury trial pursuant to Article 10 to determine whether respondent currently has a mental abnormality as defined in MHL § 10.03(i). On January 13, 2010, the jury returned a verdict that respondent did not have a mental abnormality. Petitioner now moves for an order, pursuant to CPLR§ 4404(a), setting aside the verdict and granting a new trial on the ground that the verdict was contrary to the weight of the evidence.

Trial Evidence

Petitioner's Case

1. Dr. Christopher Kunkle

Petitioner's sole witness at the trial was Dr. Christopher Kunkle, a licensed psychologist, employed as a psychiatric examiner by the New York State Office of Mental Health. On March 10, 2009, Dr. Kunkle evaluated respondent pursuant to Article 10. In preparation for his meeting with respondent, Dr. Kunkle reviewed voluminous records provided by the New York State Department of Correctional Services ("DOCS"), the New York State Division of Parole, the New York City Police Department, New York City Department of Probation, the Supreme Court, Bronx County, and the Central New York Psychiatric Center ("CNYPC"). His interview with respondent lasted approximately four hours.

Based on his interview of respondent and review of the records, Dr. Kunkle provided detailed information about respondent's background and criminal history. Dr. Kunkle testified about the numerous victims of respondent's sexual behavior, and the level of deception respondent used to gain their trust. In 1986, respondent approached four boys, told them he was a karate instructor and urged them to sign up for his class. He engaged in a series of games with the boys with the goal of having them expose themselves and himself.[3] Respondent was convicted upon his guilty plea of Attempted Sexual Abuse in the First Degree and sentenced to five years probation. Besides exposing himself, respondent attempted to touch the penises of at least two of the boys.

In 1991, while on probation, respondent was arrested and subsequently pleaded guilty to sodomizing a boy whom he instructed in karate. The investigation in this case revealed that respondent had victimized as many as ten additional boys. Respondent's confession, at the time of his arrest, described the manner by which he gained the trust of his victims. He would engage the boys in different kinds of card and counting games to encourage them to expose their penises or buttocks. Respondent would induce them to touch his penis or allow respondent to touch them, or place their mouth on each others penises.

Besides these two cases for which respondent was prosecuted, respondent admitted to additional sexual acts with other children. In 1983, respondent lured a boy into a bathroom at a boys club. Respondent had the boy touch his penis and respondent put his penis against the boy's anus. Respondent lured a second boy to a ...


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