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Sex Offender May Not Avoid Civil Commitment Proceeding by Renouncing Citizenship and Leaving the Country

The Third Department determined the respondent in a Mental Hygiene Law 10.06 proceeding (called a SOMTA proceeding) to determine whether he, as a sex offender, should be committed to a secure mental health treatment facility, could not defeat the proceeding by renouncing his citizenship and leaving the country:

It is well established that “Congress has broad authority to set the conditions and procedures that an individual must satisfy in order to renounce his [or her] citizenship” … . In accord with its authority, Congress enacted 8 USC § 1481, which, in relevant part, provides that “[a] person who is a national of the United States whether by birth or naturalization, shall lose his [or her] nationality by voluntarily performing [certain enumerated] acts with the intention of relinquishing United States nationality” … . A citizen seeking to renounce his or her nationality must make an application therefor and, generally, must be outside the United States to do so … . To this end, respondent argues that the SOMTA petition must be dismissed so that he may be released from DOCCS’s custody in order to leave the United States and return to Israel, where he will effectuate his expatriation… .

We flatly reject this argument, which presupposes, among other things, that respondent would actually exit this country if he were released from custod. Even if he did leave, the state is not required to bear the risk that petitioner — an experienced international fugitive — would not return to New York thereafter. In any event, at this juncture, respondent remains a United States citizen confined in New York who is a sex offender alleged to have a mental abnormality and in need of civil management, and petitioner continues to have a legitimate interest in protecting society from the risks he poses… . Matter of State of New York v Horowitz, 2014 NY Slip Op 05001, 3rd Dept 7-3-14

 

Court Properly Permitted Administration of Medication to Involuntarily Committed Patient

The Second Department determined Supreme Court, after a hearing, properly permitted the Rockland Psychiatric Center to administer psychotropic medication to an involuntarily committed patient suffering from schizophrenia who had refused the medication:

The State may administer a course of medical treatment against a patient’s will if it establishes, by clear and convincing evidence, that the patient lacks “the capacity to make a reasoned decision with respect to proposed treatment,” and that “the proposed treatment is narrowly tailored to give substantive effect to the patient’s liberty interest, taking into consideration all relevant circumstances, including the patient’s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments”… .  Matter of Jay S, 2014 NY Slip Op 04204, 2nd Dept 6-11-14

 

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Courts Charged with Supervising Defendants Found Not Responsible by Reason of Mental Disease or Defect Have the Power To Impose a Condition Allowing the Office of Mental Health to Seek Judicial Approval for a Mandatory Psychiatric Evaluation When the Defendant Does Not Comply with Release Conditions and Refuses to Be Examined Voluntarily

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined that a court charged with supervising a defendant who has been found not responsible by reason of mental disease or defect can include in “an order of conditions a provision allowing the [NYS] Office of Mental Health (OMH) to seek judicial approval of a mandatory psychiatric evaluation in a secure facility when a defendant found not responsible by reason of mental disease or defect fails to comply with the conditions of his release and refuses to undergo voluntary examination.”  The appellate division had held that Criminal Procedure Law section 330.20 prohibited the inclusion of such a requirement in an order of conditions:

Section 330.20 mandates an order of conditions whenever a track-one defendant moves from secure to nonsecure confinement, or is no longer institutionalized (Criminal Procedure Law § 330.20 [11], [12]), and allows the court to fashion these orders in whatever way, in its judgment, most effectively protects the public while serving the defendant's interest in remaining in the least restrictive environment possible. “[T]he order of conditions is the vehicle by which the . . . court effectuates its continuing supervisory authority over” a defendant found not responsible for a crime by reason of mental disease or defect … . And while the Commissioner and the district attorney may appeal from an order of conditions, the defendant may not (see Criminal Procedure Law § 330.20 [21]). This insulates the supervising court from a defendant's attempt to argue that a condition, thought by the judge to be a necessary prophylactic measure, excessively restricts his freedom.

Accordingly, section 330.20 authorizes orders that, along with a prescribed treatment plan, include “any other condition which the court determines to be reasonably necessary or appropriate” (Criminal Procedure Law § 330.20 [1] [o] [emphases added]). * * *

The effective-evaluation provision enables OMH to evaluate a track-one defendant who does not comply with court-ordered conditions and refuses to be examined voluntarily. Track-one defendants are released into the community with the express understanding that they may endanger the public and themselves if their mental health declines. Indeed, reported cases illustrate the perils posed when such defendants do not follow the regime designed by mental-health professionals and imposed by courts to safeguard their stability and functioning in the community … . The dangers of noncompliance are exacerbated when a track-one defendant also refuses to submit to a psychiatric evaluation thereby denying vital information to the Commissioner, whom section 330.20 (12) makes responsible for ensuring compliance with orders of conditions issued with release orders. Matter of Allen B v Sprout, 2014 NY Slip Op 03427, CtApp 5-13-14

 

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Involuntary Mental Health Patient Should Not Have Been Released Pursuant to a Habeas Corpus Petition Without an “Examination Into the Patient’s Alleged Disability and Detention,” Despite the Hospital’s Untimely Request for Continued Detention (in Violation of the Mental Hygiene Law)/Appellate Court’s Ability to Hear a Moot Case Explained (Mootness Doctrine)

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that immediate release of an involuntaty patient from a mental health hospital pursuant to a writ of habeas corpus because of the facility’s failure to comply with the Mental Hygiene Law provisions for continued detention was reversible error.  Supreme Court should have conducted an examination into the patient’s alleged disability and detention.  The court discussed the nature and origin of the habeas corpus petition and the relationship between a habeas corpus petition brought under the Mental Hygiene Law and under Article 70 of the CPLR (finding them to be in essence the same). In addition, the Second Department discussed the mootness doctrine which, under certain circumtances, allows an appellate court to hear  a moot case.  The habeas corpus petition here had been rendered moot by the patient’s release:

Generally, courts are precluded “from considering questions which, although once live, have become moot by passage of time or change in circumstances” …. . Typically, “an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” … . However, an exception to the mootness doctrine permits a court to review a case if the controversy or issue involved is likely to recur, typically evades review, and raises a substantial and novel question … .Here, the release of the patient renders this appeal academic. We nevertheless exercise our discretion to review the issues raised on this appeal pursuant to the exception to the mootness doctrine because the primary issue raised is an important one which implicates both the patient’s fundamental liberty interest and the State’s interest in protecting the mentally ill, and is one which is likely to recur. Further, the primary issue involved here may typically evade review because “[t]he Mental Hygiene Law contemplates that involuntary hospitalization in a mental health facility is often brief and temporary . . . [and the law] require[s] frequent periodic review of a patient’s status, and the release of the patient unless OMH is granted successive court orders authorizing retention” … . * * *

Here, the patient was initially involuntarily hospitalized pursuant to Mental Hygiene Law article 9 due to his alleged mental illness and, thereafter, the petition for a writ was filed on the patient’s behalf. The purpose of the writ of habeas corpus was to determine whether the patient was being unlawfully detained (see CPLR 7002[a]… ). Therefore, in order to determine the cause and legality of the patient’s detention, the Supreme Court was required to examine the facts of the patient’s alleged mental disability and detention (see Mental Hygiene Law § 33.15[a], [b]; CPLR 7002). The Supreme Court’s failure to conduct the required examination constitutes reversible error. We note that the Hospital supported its untimely retention application with, inter alia, two certificates from the patient’s treating physicians. In those certificates, the physicians asserted that the patient was paranoid, unable to care for himself, and psychotic. Our determination should not be construed as an approval of the Hospital’s dilatory conduct in filing the retention application. There is no dispute that the Hospital failed to comply with Mental Hygiene Law § 9.33. Under the circumstances presented, however, the remedy for such noncompliance is not the immediate release of a patient. We also caution that our reasoning should not be construed to authorize an unlimited violation of article 9 of the Mental Hygiene Law so as to allow a patient to be involuntarily retained, without a hearing, indefinitely. People v Munsey, 2014 NY Slip Op 01782, 2nd Dept 3-19-14

 

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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

 

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ARTICLE 10 PROCEEDINGS ARE CIVIL IN NATURE, HOWEVER THE COURT ANALYZED WHETHER RESPONDENT COULD REPRESENT HIMSELF AND WHETHER HE WAS AFFORDED EFFECTIVE ASSISTANCE USING THE CRIMINAL LAW STANDARDS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, determined that Article 10 sex-offender commitment proceedings are civil in nature, but analyzed respondent’s request to represent himself and whether respondent received ineffective assistance under the criminal-law standards:

Supreme Court did not err in denying respondent’s request to proceed pro se. Assuming, without deciding, that a respondent in a Mental Hygiene Law article 10 proceeding has the same right of self-representation as a criminal defendant …, respondent’s request here was denied based on his failure to meet two prongs of the three-prong test:

“A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” … .

Respondent made his request to proceed pro se only two business days before the second trial was scheduled to begin, which the court properly found untimely … . …The court properly denied his request based on … comments indicating that he would attempt to disrupt or prevent the orderly conduct of the trial …, along with the untimeliness of the request. …

Respondent was not deprived of the effective assistance of counsel. Initially, we hold that while Mental Hygiene Law article 10 proceedings are civil rather than criminal, and that ineffective assistance of counsel may only be considered in civil litigation if extraordinary circumstances are present, the indefinite and involuntary nature of confinement that may result in this type of proceeding constitutes such an extraordinary circumstance … .

Applying the criminal standard, we must determine whether “the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” … . Matter of State of New York v Timothy BB., 2013 NY Slip Op 07774 [113 AD3d 18], Third Dept 11-21-13

 

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Experts’ Use of Unreliable Hearsay in Article 10 Trial Violated Due Process

The Court of Appeals, in a full-fledged opinion by Judge Rivera (with a concurring opinion) determined the use of unreliable hearsay by the People ‘s experts in an Article 10 civil commitment trial of a convicted sex offender violated the offender’s right to due process of law.  The court explained that hearsay related to convictions was reliable, hearsay supported by admissions is reliable, hearsay related to acquittals and otherwise unsupported uncharged accusations is unreliable, and hearsay about criminal charges that result in neither acquittal nor conviction require close scrutiny (probative value versus prejudicial effect):

Due process requires any hearsay basis evidence to meet minimum requirements of reliability and relevance before it can be admitted at an article 10 proceeding.  In article 10 trials, hearsay basis evidence is admissible if it satisfies two criteria.  First, the proponent must demonstrate through evidence that the hearsay is reliable.  Second, the court must determine that “the probative value in helping the jury evaluate the [expert’s] opinion substantially outweighs [its] prejudicial effect” (cf. Fed Rules Evid rule 703).  These reliability and substantial relevance requirements provide a necessary counterweight to the deference juries may accord hearsay evidence simply because an expert has propounded it.  The requirements prevent an expert from serving as a passive conduit for hearsay, yet allow the jury to evaluate expert opinions by considering reliable and probative evidence.  This rule gives the judge an active role in managing the article 10 proceeding and preserving its integrity.  Matter of State of New York v Floyd Y, 182, CtApp 11-19-13

 

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