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In Extraordinary Circumstances, Testimony by Two-Way Video Conference Can Be Used In Mental Hygiene Law Article 10 Proceedings

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that the judge in a Mental Hygiene Law article 10 proceeding has the discretion, in extraordinary circumstances, to allow testimony by electronic appearance (live two-way video conference). Here, however, the respondent objected to the procedure and the State did not demonstrate the requisite extraordinary circumstances.  The error  was deemed harmless however:

…[W]e hold that permitting the two-way, live video testimony … was within the discretion of the court. As we have previously explained, “[l]ive televised testimony is certainly not the equivalent of in-person testimony, and the decision to excuse a witness's presence in the courtroom should be weighed carefully. Televised testimony requires a case-specific finding of necessity; it is an exceptional procedure to be used only in exceptional circumstances” … . … [Here} [p]ermitting [the witness] to deliver her testimony via video conference over respondent's objection without requiring a proper showing of exceptional circumstances was error. Matter of State of New York v Robert F., 2015 NY Slip Op 04162, CtApp 5-14-15

 

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