Re: A Mental Hygiene Law Civil Commitment Proceeding for a Sex Offender, Failure to Give the Jury an Adequate Explanation of the Meaning of “Sex Offense” May Have Resulted in an Unsupported “Mental Abnormality” Finding

The Second Department determined the trial court committed reversible error by not, upon defense counsel’s request, giving a further instruction to the jury on the meaning of “sex offense” as part of the jury charge on mental abnormality. The jury found the appellant had committed a sexually motivated felony and suffers from a mental abnormality (re: civil commitment of a sex offender under the Mental Hygiene Law). The appellant had pled guilty to the burglary of a woman’s home. During the burglary the appellant allegedly had “touched that woman’s vagina and buttocks with a hard object.” At the “Mental Hygiene Law” trial, the State presented evidence of appellant’s sexual behavior in prison which did not constitute a sex offense enumerated under the Mental Hygiene Law. The jury may not have understood how to evaluate the “unenumerated” behavior under the Mental Hygiene Law:

Here, the State’s evidence consisted predominantly of instances of the appellant’s sexually inappropriate acts that would not constitute sex offenses under Mental Hygiene Law article 10. Specifically, the State’s expert testified at length regarding instances in which the appellant masturbated while he could be observed by prison officers or by staff members while placed at a secure treatment facility, and his propensity to continue to act in a sexually improper manner. The appellant’s conduct, however, at most, might constitute the crime of public lewdness (Penal Law § 245), a class B misdemeanor, which is not one of the sex offenses enumerated under Mental Hygiene Law article 10. In light of the particular circumstances presented in this proceeding, the Supreme Court should have granted the appellant’s request to issue an expanded charge to the jury containing supplemental information as to the specific statutory meaning of “sex offense,” so that the jury could make a proper evaluation of the evidence.…

[T]he Supreme Court’s failure to either provide the statutory definition of “sex offense” under Mental Hygiene Law article 10 or to inform the jury that there is a distinction between a predisposition to commit a “sex offense” and a predisposition to commit nonenumerated acts of sexual misconduct could have misled the jury into making a finding of mental abnormality, based solely upon the evidence of the appellant’s predisposition to commit any improper sexual conduct. Consequently, a new trial is required … . Matter of State of New York v Adrien S, 2014 NY Slip Op 01175, 2nd Dept 2-19-14