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In re State

Supreme Court of New York, Second Department

December 13, 2017

In the Matter of State of New York, respondent,
v.
Kerry K. (Anonymous), appellant. Index No. 6246/13

          Argued - March 17, 2017

         D53320 M/afa

          Mental Hygiene Legal Service, Mineola, NY (Michael D. Neville, Ana Vuk-Pavlovic, and Dennis B. Feld of counsel), for appellant.

          Eric T. Schneiderman, Attorney General, New York, NY (Anisha Dasgupta, Valerie Figueredo, and Ester Murdukhayeva of counsel), for respondent.

          CHERYL E. CHAMBERS, J.P. SANDRA L. SGROI COLLEEN D. DUFFY BETSY BARROS, JJ.

          OPINION & ORDER

          SGROI, J.

         APPEAL by Kerry K., in a proceeding pursuant to Mental Hygiene Law article 10 for the civil management of Kerry K., a sex offender allegedly requiring civil management, from an order of the Supreme Court (Jerry Garguilo, J.), dated June 25, 2015, and entered in Suffolk County, which, upon a finding, made after a nonjury trial, that he suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i), and upon a determination, made after a dispositional hearing, that he is a sex offender requiring strict and intensive supervision and treatment, granted the petition and directed that he be subj ect to a regimen of strict and intensive supervision and treatment.

         The State of New York commenced this proceeding pursuant to Mental Hygiene Law article 10 against Kerry K., a detained sex offender, alleging that he suffers from a mental abnormality as defined in that statute (see Mental Hygiene Law § 10.03[e]) and, thus, requires civil management (see Mental Hygiene Law § 10.03[q]). Upon a finding of probable cause to support the petition, a nonjury trial was held, after which the Supreme Court concluded that Kerry K. suffers from such a mental abnormality. After a dispositional hearing, the court issued an order of strict and intensive supervision and treatment (hereinafter SIST).

         This appeal from the SIST order raises the issues of whether the failure to hold the probable cause hearing and the trial on the petition within the statutory time frames required dismissal of the petition. It further presents the questions of whether the Supreme Court erred by permitting the State to rely upon sealed records obtained from local authorities, and in admitting hearsay testimony from the State's experts, as the basis for their opinions, regarding two convictions of sex offenses of which Kerry K. was later exonerated. We conclude that the failure to conduct the probable cause hearing and trial within the statutory time frames did not deprive the court of jurisdiction or, under the circumstances, violate Kerry K's due process rights. We further hold that Mental Hygiene Law § 10.08(c) permits the State to obtain, from local government entities, sealed records relating to an offender's commission or alleged commission of a sex offense. However, because we conclude that the court erred in admitting the hearsay basis testimony regarding convictions of which Kerry K. was exonerated, and that this error was not harmless, we remit the matter to the Supreme Court, Suffolk County, for a new trial on the issue of whether Kerry K. suffers from a mental abnormality.

         On October 23, 1997, Kerry K. was convicted, after a jury trial, of rape in the first degree and sentenced to an indeterminate term of imprisonment of 7 to 21 years. On March 4, 2013, prior to Kerry K.'s conditional release date, the State filed a petition for civil management of Kerry K. The original return date of March 14, 2013, was adjourned several times to conform to the Supreme Court's schedule and due to decisions by two Supreme Court Justices to recuse themselves. Thus, the probable cause hearing, rather than being held within 30 days after the petition was filed as specified in Mental Hygiene Law § 10.06(g), was held on May 10, 2013. After the hearing, the court found that probable cause existed to believe that Kerry K. was a sex offender requiring civil management.

         Prior to trial on the petition, Kerry K. moved to preclude the State from relying upon certain sealed records it had obtained from the Suffolk County Police Department and the Suffolk County Probation Department. The records included an arrest report, a victim deposition, and a supporting deposition concerning an arrest in 1979 for rape and sodomy, which charges were dismissed prior to indictment. Additionally, the records included police reports, a victim deposition, and a presentence report concerning an arrest in 1981, which resulted in convictions, in 1982, of rape in the first degree and burglary in the first degree, among other crimes. Those convictions stemmed from separate incidents occurring in 1978 and 1981 involving the same victim. In 1978, the victim walked in on a burglary of her home and was raped by the perpetrator. Three years later, the perpetrator again broke into the victim's home, told her he was "back here for another visit, '' and raped her at knifepoint. After serving almost 11 years of the term of imprisonment imposed upon those convictions, Kerry K. was exonerated through DNA evidence and awarded damages for unjust conviction and imprisonment (see Kotler v State of New York, 255 A.D.2d 429).

         In addition to seeking to preclude the State's reliance on the sealed records, Kerry K.'s motion sought to preclude, as unreliable hearsay, any expert testimony about the 1979 charges which had been dismissed and the 1982 convictions which had been vacated. In an order dated August 29, 2013, the Supreme Court concluded that the State properly obtained the sealed records from the Suffolk County Police Department and the Suffolk County Probation Department, and granted a cross motion by the State to unseal the records. The court deferred a determination as to whether the experts could testify regarding the dismissed charges and vacated convictions, ruling that it would decide the issue at trial on a "question by question basis.'

         A nonjury trial on the issue of whether Kerry K. suffered from a mental abnormality began on February 24, 2014, which was beyond the 60-day period specified by statute for commencement of the trial after the probable cause determination (see Mental Hygiene Law § 10.07[a]). At trial, the State presented testimony from Dr. John Thomassen and Dr. Ronald Field, forensic psychologists.

         Based upon their review of various records, including police reports and victim statements, all of which the experts testified were records customarily relied upon in their profession, Drs. Thomassen and Field testified that Kerry K. had been arrested five times for offenses involving sexual conduct. The experts testified that arrests without a conviction were important to an analysis of whether Kerry K. had a mental abnormality. Dr. Thomassen explained that, although arrests without convictions were less reliable, charges of sex offenses are dismissed for a variety of reasons. Dr. Thomassen indicated that he looks at witness depositions, police reports, and other evidence to "make a probable determination that it may or may not have happened.''

         The experts recounted that Kerry K. was arrested on April 17, 1979. Dr. Thomassen testified that, according to the sworn statement of the complainant in that case, who was then 17 years old, she had gone to Kerry K.' s house at 3:00 a.m., after meeting him in a bar earlier that night, and when she refused to have sex with him, Kerry K. put a gun to her head and raped her. The charges were dismissed prior to indictment, the experts testified, because the complainant decided that she could not go forward in prosecuting the charges since she had engaged in consensual sex with Kerry K. after the incident.

         The experts further testified, based upon a sworn victim statement, about an arrest on April 30, 1980, that resulted in a conviction. The complainant in that case, who was 16 years old, had known and socialized with Kerry K. for a period of time. On the night of April 25, 1980, Kerry K. took the complainant to his apartment and stated that he "wanted her." According to the testimony, when the complainant refused, Kerry K. allegedly took her arm, twisted it behind her back until she started to cry out, "threw her on the bed, ' twisted her arm "a few other times, ' and raped her. The experts testified that, with respect to this incident and subsequent conduct, Kerry K. pleaded guilty to rape in the third degree and two counts of attempting to bribe a witness.

         The experts next recounted that Kerry K. was arrested on September 29, 1981, regarding the two incidents that occurred in 1978 and 1981, resulting in the 1982 convictions of two counts of rape in the first degree, two counts of burglary in the first degree, and burglary in the second degree. The experts testified that Kerry K. was next arrested on April 8, 1996, in connection with an incident that occurred 2% years after he had been released from prison on the 1982 convictions. With respect to that arrest, Kerry K. was convicted in 1997, upon a jury verdict, of rape in the first degree.

         According to the experts' testimony, a sworn statement of the complainant in that case indicated that she was driving at 3:00 a.m. when Kerry K. pulled up his car next to hers, and after showing her a badge, had her pull over her car. The experts testified that Kerry K. approached the complainant with a knife, grabbed her after she attempted to flee, drove her to an isolated area, walked her into the woods, and raped her. The complainant alleged that Kerry K. had a bottle with a hose on it, which he then used to squirt a substance in her ...


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