Error to Preclude Witness for Sexual Offender in Article 10 Proceeding

In a Mental Hygiene Law article 10 proceeding to determine whether Enrique D, a sexual offender, suffered from a mental abnormality justifying civil confinement, the Court of Appeals determined the judge erred in refusing to allow a former girlfriend, Naomi N, to testify about whether Enrique ever tried to offend against her and whether Enrique respected her “boundaries:”

In the circumstances of this case, Supreme Court abused its discretion by precluding Naomi N. from testifying.  Mental Hygiene Law § 10.08 (g) provides that a respondent in an article 10 proceeding “may, as a matter of right, testify in his or her own behalf, call and examine other witnesses, and produce other evidence in his or her behalf.”  This provision manifestly does not limit a respondent to expert witnesses.  The pertinent question is whether a witness — expert or lay — has material and relevant evidence to offer on the issues to be resolved.

Here, Naomi N.’s rejected testimony was relevant to the State expert’s diagnosis of paraphilia NOS — non-consent.  The jury was asked to decide whether Enrique D. suffered a condition, disease, or defect that predisposed him to commit sex offenses, and whether that condition caused him serious difficulty in controlling his sex offending conduct.  With respect to the first prong, Naomi N.’s testimony would have called into question whether Enrique D. exhibited a longstanding fixation on nonconsenting women; as to the second, her testimony was relevant to show whether he experienced difficulty controlling his sexual behavior.  Matter of State of New York v Enrique D, 168, CtApp 10-22-13