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In Re the State of New York v. Floyd Y

November 8, 2012


Matter of Matter of State of New York v Floyd Y.

Appellate Division, First Department

Richter, J., J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 8, 2012

Angela M. Mazzarelli,J.P. James M. Catterson Leland G. DeGrasse Rosalyn H. Richter Sallie Manzanet-Daniels, JJ.

Respondent appeals from an order of the Supreme Court, New York County (Patricia Nunez, J.), entered on or about July 7, 2010, which, upon a jury finding of mental abnormality, and upon a finding made after a dispositional hearing that he is a dangerous sex offender requiring confinement, committed him to a secure treatment facility. Marvin Bernstein, Mental Hygiene Legal Service, New York (Deborah P. Mantell of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York (Matthew W. Grieco and Nancy A. Spiegal of counsel), for respondent. RICHTER, J.

In 2007, the New York State Legislature passed the Sex Offender Management and Treatment Act (SOMTA), which, among other things, includes article 10 of the Mental Hygiene Law of New York State. Article 10 was created with the stated goals of: the protection of society from recidivist sex offenders, supervision of the offenders, and management of their behavior (Mental Hygiene Law § 10.01). The legislature determined that "some sex offenders have mental abnormalities that predispose them to engage in repeated sex offenses," and that such offenders "may require long-term specialized treatment modalities to address their risk to reoffend" (§ 10.01[b]).

In 2001, respondent-appellant was convicted after trial of four counts of first-degree sexual abuse and four counts of endangering the welfare of a child for sexually abusing his prepubescent stepson and stepdaughter. Between 1996 and 1998 respondent twice touched his stepson while he was sleeping, and he touched his stepdaughter twice as well. He was sentenced to a prison term of 4 to 8 years. At the expiration of respondent's criminal sentence, he was confined to the Kirby Forensic Psychiatric Center pending potential civil commitment proceedings. In 2007, the Attorney General filed a civil management petition against respondent under article 10 of the Mental Hygiene Law, alleging that he suffered from a mental abnormality warranting civil management. The petition was supported by Dr. Michael Kunz's evaluation, which concluded that respondent had met the criteria for pedophilia, which is considered a mental abnormality under article 10. After the hearing, the court determined that there was probable cause to believe that respondent was a sex offender requiring civil management and ordered his confinement pending trial.

Expert testimony is a necessary component of an article 10 trial. The statute specifically allows the State to choose a psychiatric examiner who will have access to the respondent for the purposes of an exam, as well as to the respondent's "relevant medical, clinical, criminal or other records and reports" (Mental Hygiene Law § 10.08[b]). Further, the State shall be entitled to request "any and all records and reports relating to the respondent's commission or alleged commission of a sex offense, the institutional adjustment and any treatment received by such respondent, and any medical, clinical or other information relevant to a determination of whether the respondent is a sex offender requiring civil management" (§ 10.08[c]).

The same evidentiary rules regarding hearsay that apply to the testimony of a lay witness also apply to the testimony of an expert witness. In People v Sugden (35 NY2d 453 [1974]), the Court of Appeals recognized two limited exceptions to the hearsay rule and held that an expert may rely on out-of-court material if "it is of a kind accepted in the profession as reliable in forming a professional opinion" or if it "comes from a witness subject to full cross-examination on the trial" (id. at 460-461; see also Hambsch v New York City Tr. Auth., 63 NY2d 723, 726 [1984]). The Court of Appeals further stated in Hambsch, that "[i]n order to qualify for the professional reliability' exception, there must be evidence establishing the reliability of the out-of-court material" (63 NY3d at 726).

At respondent's article 10 trial, the state called Dr. Catherine Mortiere as an expert to provide her opinion as to whether respondent suffered from a mental abnormality predisposing him to engage in repeat sex offenses. Prior to Mortiere's trial testimony, at respondent's request, the court conducted a voir dire examination to determine if the professional reliability exception to the hearsay rule applied to certain material reviewed by Mortiere, which the State intended to discuss during its direct examination of the doctor. Mortiere explained that she considered numerous records, including respondent's records from Kirby and the facility to which he was later transferred, his correctional records, his presentence report, various police records, and the reports of Dr. Kunz and Dr. Singer, respondent's expert witness. Mortiere also testified that she relied on witness and victim statements from prior sexual attacks allegedly committed by respondent, which were contained in affidavits or incorporated into police reports. Mortiere further testified, without contradiction, that such documents are heavily relied upon in her profession and necessary in making a decision as to whether respondent suffers from a mental abnormality.

On appeal, respondent contends that the trial court erred by permitting Mortiere to testify, without limitation, as to hearsay statements that formed the basis of her opinion. It is noteworthy that during the in limine proceedings, respondent did not elicit any testimony from Mortiere to suggest that reliance on respondent's history and information from prior victims is not a recognized method within the profession for assessing mental abnormalities. Further, respondent offered no testimony from his own expert to suggest that this was not a recognized method within the profession. Because Mortiere's testimony that these materials are used by the profession was not refuted, the trial court properly determined that the doctor could inform the jury that she used them as a basis for her expert opinion.

Article 10 dictates that the State's psychiatric examiner will have access to the respondent's relevant records and is entitled to request any and all records relevant to a determination of whether the respondent is a sex offender requiring civil management (Mental Hygiene Law ยง 10.08[b]). The statute, in effect, requires an expert to review the very material Mortiere considered in order to evaluate and reach a prognosis. To require a doctor to reach a prognosis without being able to explain to the jury how that determination was reached would significantly ...

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