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STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITHIN STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Sgroi, determined that a detained sex offender, Kerry K, was entitled to a new civil commitment trial on the issue of mental abnormality and, if necessary, a new dispositional hearing. The finding that Kerry K suffered from a mental abnormality was based in part on hearsay about a conviction which had been vacated based upon DNA evidence (after defendant served 11 years in prison). The Second Department further held that the fact that the probable cause hearing and trial did not occur within the statutory time-frames was not a jurisdictional defect or a violation of due process. And the fact that sealed criminal records were relied upon by the state’s experts was deemed proper:

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… [T]he failure to conduct the probable cause hearing and trial within the statutory time frames did not deprive the court of jurisdiction or, under the circumstances, violate Kerry K.’s due process rights. … Mental Hygiene Law § 10.08(c) permits the State to obtain, from local government entities, sealed records relating to an offender’s commission or alleged commission of a sex offense. … [W]e conclude that the court erred in admitting the hearsay basis testimony regarding convictions of which Kerry K. was exonerated … . * * *

The experts’ testimony about the vacated 1982 convictions … did not satisfy the reliability and relevance requirements for admission of hearsay basis evidence. As the Court of Appeals has observed, “unlike adjudications and admissions of guilt, an acquittal cannot provide the basis for reliability” … . Further, “[c]harges that resulted in acquittal are surely more prejudicial than probative on the question of the respondent’s mental abnormality” … . Thus, “acquittal of criminal charges bars admission of those accusations, absent some other basis to substantiate them” … .

In the present case, the information regarding the 1982 convictions was even less reliable and relevant than information concerning charges of which a respondent has merely been acquitted. An acquittal on a particular charge indicates that the People were unable to prove the defendant’s guilt of that charge beyond a reasonable doubt. Here, in contrast, the 1982 convictions were vacated, on consent of the Suffolk County District Attorney’s Office, based on the results of DNA testing conducted by Kerry K.’s and the State’s experts, and Kerry K. later affirmatively proved his innocence by clear and convincing evidence … . Thus, it was error to permit the State’s experts to testify about the 1982 convictions, and this error deprived Kerry K. of due process … . Matter of State of New York v Kerry K., 2017 NY Slip Op 08671, Second Dept 12-13-17

 

MENTAL HYGIENE LAW (SEX OFFENDERS, CIVIL COMMITMENT, STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITH STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT))/EVIDENCE (MENTAL HYGIENE LAW, SEX OFFENDERS, CIVIL COMMITMENT, STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITH STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT))/SEX OFFENDERS (CIVIL COMMITMENT, STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITH STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT))/CIVIL COMMITMENT (SEX OFFENDERS STATE’S EXPERTS SHOULD NOT HAVE RELIED ON HEARSAY EVIDENCE OF CONVICTIONS WHICH WERE VACATED BASED UPON DNA EVIDENCE, NEW MENTAL ABNORMALITY TRIAL ORDERED, SEALED CRIMINAL RECORDS PROPERLY CONSIDERED, FAILURE HOLD PROBABLE CAUSE HEARING AND TRIAL WITH STATUTORY TIME FRAMES DID NOT VIOLATE DUE PROCESS (SECOND DEPT))

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