Expert Who Evaluated Sex Offender As Part of the Initial Case Review Team Was Properly Allowed to Testify at the Civil Commitment Hearing

The Third Department, in a full-fledged opinion by Justice Garry, determined that the psychologist/psychiatrist (Barnes), who was part of the sex offender’s (respondent’s) case review team which recommended civil commitment, was properly allowed to testify at the Article 10 hearing. The respondent had sought to prevent Barnes from testifying because another psychiatrist (for the state) had been appointed for the hearing. The Third Department held that nothing in the Mental Hygiene Law prevented both experts from testifying for the state, and nothing in the Mental Hygiene Law prevented Barnes from having access to relevant diagnostic information generated after he had completed his evaluation for the case review team:

The degree to which Mental Hygiene Law article 10 authorizes a psychiatric examiner who has evaluated a respondent pursuant to Mental Hygiene Law § 10.05 (e) to continue to participate in subsequent proceedings involving the same respondent appears to be a question of first impression. However, nothing in the statute affirmatively precludes such continued participation, and the Court of Appeals has held that relevant evidence may be admissible in article 10 proceedings when “no statute prohibits its use” (Matter of State of New York v John P., 20 NY3d 941, 943 [2012]). As for whether a psychiatric examiner may supplement his or her evaluation report by investigating records of the respondent’s progress following completion of the report, and then rely on such updated information in testifying on the question of confinement, as Barnes did here, Mental Hygiene Law § 10.05 (e) provides the case management team and assigned psychiatric examiner with extensive access to relevant records as part of the initial evaluation. To limit the psychiatric examiner’s subsequent access to relevant information would be inconsistent with the statutory provisions that permit the parties to offer additional evidence on the question of a respondent’s dangerousness at the dispositional hearing and further direct that, “[i]n making a finding of disposition, the court shall consider . . . all available information about the prospects for the respondent’s possible re-entry into the community” (Mental Hygiene Law § 10.07 [f] [emphasis added]).

Contrary to respondent’s argument, petitioner was not required to demonstrate that Barnes’ testimony was “necessary.” Instead, in the absence of any rule prohibiting such evidence, the test for admissibility is whether the testimony is material and relevant to the issues posed … . Here, Barnes possessed knowledge of respondent’s pathology that was clearly material and relevant on the issue of whether he required confinement. * * *

Likewise, we find no abuse of discretion in the denial of respondent’s motion for the appointment of a second expert. Matter of State of New York v James K., 2015 NY Slip Op 07874, 3rd Dept 10-29-15