Appeal from an order of the Supreme Court, Monroe County (Ann Marie Taddeo, J.), entered June 30, 2011 in a proceeding pursuant to Mental Hygiene Law article 10.
Matter of Matter of State of New York v Hunter
Appellate Division, Fourth Department
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.
Released on November 16, 2012
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
The order, among other things, determined that respondent is a dangerous sex offender requiring confinement and committed him to a secure treatment facility.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent appeals from an order entered following a jury trial that, inter alia, determined that he is a dangerous sex offender requiring confinement pursuant to Mental Hygiene Law article 10 and committed him to a secure treatment facility. Respondent contends that Supreme Court erred in denying that part of his pretrial motion requesting that the report of a court-appointed psychiatric examiner be provided to the court and the Attorney General only in the event that respondent decided to call the examiner as a witness at trial. According to respondent, such a disclosure would violate his right to due process and equal protection. We reject that contention. Mental Hygiene Law § 10.06 (e) provides that, any time after the filing of a sex offender civil management petition and prior to trial, the court shall order an evaluation of the respondent by a psychiatric examiner upon the respondent's request. The statute further provides that, "[f]ollowing the evaluation, such psychiatric examiner shall report his or her findings in writing to the respondent or counsel for the respondent, to the attorney general, and to the court" (id. [emphasis added]). We conclude that respondent did not meet his burden of establishing that the statute is unconstitutional beyond a reasonable doubt (see generally Dalton v Pataki, 5 NY3d 243, 255, rearg denied 5 NY3d 783, cert denied 546 US 1032). Indeed, the statute goes beyond the due process required in a civil confinement proceeding inasmuch as a respondent is entitled to the appointment of a psychiatric examiner simply upon request and without a showing of necessity (cf. Goetz v Crosson, 967 F2d 29, 36-37). Respondent failed to preserve for our review his further contention that his privilege against self-incrimination was violated and, in any event, that contention is without merit (see § 10.08 [a]).
We reject respondent's contention that the admission in evidence of testimony from his criminal trial at this civil proceeding violated his right of confrontation. Mental Hygiene Law § 10.08 (g) specifically allows the admission of such evidence, and the right of confrontation applicable in criminal cases does not apply to this civil proceeding (see Matter of State of New York v Wilkes [appeal No. 2], 77 AD3d 1451, 1451-1452). Finally, contrary to respondent's contention, petitioner established by clear and convincing evidence that respondent has an inability to control his behavior such that he "is likely to be a danger to others and to commit sex offenses if not confined" (§ 10.07 [f]).
Entered: November 16, 2012
Frances E. Cafarell Clerk of the Court
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