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HEARSAY EVIDENCE OF CHARGES OF WHICH SEX OFFENDER WAS ACQUITTED AND CHARGES WHICH WERE DISMISSED SHOULD NOT HAVE BEEN CONSIDERED, NEW TRIAL ORDERED.

The First Department determined respondent sex-offender was entitled to a new civil-commitment trial because the state’s expert relied on sex-offense charges of which respondent was acquitted and other sex-offense charges which were dismissed. The acquittal was completely off-limits. And no evidence to demonstrate respondent had committed the dismissed offenses was presented. The court noted that, in order to preserve a challenge to the sufficiency of the evidence in these Mental Hygiene Law proceedings, a motion for a directed verdict must be made at the close of the state’s proof:

 

Respondent failed to preserve his remaining claims that the trial evidence was legally insufficient to support the jury’s verdict. In order to challenge the sufficiency of the evidence on appeal, a party must first have moved for a directed verdict under CPLR 4401 … . Here, respondent never moved before the trial court for a directed verdict or otherwise challenged the legal sufficiency of the evidence. Thus, his claims are unpreserved for appellate review, and we decline to reach them.

… [T]he court erred in allowing the State’s experts, in explaining the basis for their opinions, to testify regarding two sets of sex offense charges against respondent that did not result in convictions (see Matter of State of New York v Floyd Y., 22 NY3d 95 [2013]). In Floyd Y., the Court held that hearsay basis evidence satisfies due process only if it is demonstrated to be reliable and its probative value outweighs its prejudicial effect (id. at 109). Here, one set of charges resulted in an acquittal, and so was categorically precluded from providing the basis for reliability (id. at 110). The second group of charges, which resulted in dismissal, also failed to meet the reliability threshold, because they were unaccompanied by indicia that respondent committed the charged acts notwithstanding the lack of a conviction (see id.). Accordingly, a new trial is required. Matter of State of New York v David S., 2016 NY Slip Op 00777, 1st Dept 2-4-16

 

MENTAL HYGIENE LAW (EVIDENCE OF CHARGES OF WHICH SEX OFFENDER WAS ACQUITTED AND CHARGES WHICH WERE DISMISSED SHOULD NOT HAVE BEEN CONSIDERED IN ARTICLE 10 TRIAL)/EVIDENCE (HEARSY EVIDENCE OF CHARGES OF WHICH SEX OFFENDER WAS ACQUITTED AND CHARGES WHICH WERE DISMISSED SHOULD NOT HAVE BEEN CONSIDERED IN ARTICLE 10 TRIAL)/APPEALS (TO PRESERVE CHALLENGE TO LEGAL SUFFICIENCY OF EVIDENCE IN A MENTAL HYGIENE LAW ARTICLE 10 SEX-OFFENDER CIVIL-COMMITMENT PROCEEDING, SEX OFFENDER MUST MOVE FOR A DIRECTED VERDICT)

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GIVING THE CORRECT “PRESUMPTION OF INNOCENCE” JURY INSTRUCTION THREE TIMES WITHOUT ACKNOWLEDGING THE ERRONEOUS INSTRUCTION WAS REVERSIBLE ERROR; CROSS-EXAMINATION ABOUT A CIVIL SUIT AGAINST A POLICE OFFICER WHO ALLEGEDLY SHOT THE PLAINTIFF SHOULD HAVE BEEN ALLOWED; THE JUDGE SHOULD HAVE HELD AN IN CAMERA REVIEW OF A POLICE OFFICER’S DISCIPLINARY RECORD (FIRST DEPT). ​
STATE’S EXPERT DID NOT ESTABLISH RESPONDENT SEX OFFENDER SHOULD BE SUBJECT TO CIVIL COMMITMENT, SUPREME COURT REVERSED. ​

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