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Reference to Old Offense that Was Dismissed Okay in “Mental Abnormality/Dangerous Sex Offender” Proceeding

The Fourth Department determined that evidence of a 1991 offense that was dismissed with the record sealed was admissible in a Mental Hygiene Law article 10 “dangerous sex offender” proceeding to determined whether defendant had a mental abnormality:

Evidence of prior crimes is commonly admissible in article 10 proceedings because it is probative of whether a designated felony was sexually motivated and whether a respondent has a mental abnormality…, and evidence of uncharged crimes likewise is admissible in article 10 proceedings because “Mental Hygiene Law article 10 does not limit the proof to acts that resulted in criminal convictions when considering the issue of mental abnormality”… . Matter of State of New York v Schraenkler,, 657, 4th Dept 7-5-13

 

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Participation in Program Can Be Delayed Until Close to Release Date

In affirming Supreme Court, in the face to the inmate’s request that he be placed in the sex offender counseling and treatment program (SOCTP) in 2015, the Third Department determined  the inmate’s participation in the program could be delayed until 2023, 36 months before his conditional release date:

An inmate’s evaluation by a case review team  under  Mental  Hygiene  Law  §  10.05 is triggered by notice to the Office of Mental  Health that the inmate  is “nearing anticipated release,” which is to be provided at least 120 days prior to such  “anticipated release” (Mental Hygiene  Law  §  10.05 [b]). In accordance with the foregoing, DOCCS has developed guidelines for administering sex offender treatment programs throughout the state. The guidelines recognize the need to allocate limited resources and provide that inmates shall be placed in sex offender treatment programs “as they get closer to their release date.”  Matter of Wakefield, 515002, 3rd Dept 7-3-13

 

Petition by Guardian to Transfer Assets of Incapacitated Person Properly Denied

In denying a petition by a guardian to transfer some of the assets of an incapacitated person, the Second Department explained the relevant criteria:

A court may grant a petition pursuant to Mental Hygiene Law § 81.21 to authorize a guardian to transfer a part of an incapacitated person’s assets to or for the benefit of another person if it is satisfied by clear and convincing evidence, inter alia, that “a competent, reasonable individual in the position of the incapacitated person would be likely to perform the act or acts under the same circumstances” (Mental Hygiene Law § 81.21[e][2];…. Here, given the limited information …in support of the petition, and the absence of any indication that the proposed asset transfer plan was approved by the guardian of the property …., the Supreme Court providently exercised its discretion in denying the petition.  Matter of Modesta V, 2013 NY Slip Op 04818, 2nd Dept 6-26-13

 

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Hospital Did Not Owe Intoxicated Patient a Duty to Prevent Him from Leaving Hospital

Over a dissent, the Court of Appeals, in a full-fledged opinion by Judge Smith, determined (under the facts of the case) a hospital and an emergency room doctor did not owe an intoxicated patient a duty to prevent him from leaving a hospital.  The patient was struck by a car an hour or two after leaving.

…Mental Hygiene Law § 22.09 specifically addresses the question of when a hospital may retain “a person whose mental or physical functioning is substantially impaired as a result of the presence of alcohol . . . in his or her body” (Mental Hygiene Law § 22.09 [a] [1]). The statute deals separately with the case of an intoxicated person “who comes voluntarily or is brought without his or her objection” to a hospital or other treatment facility (§ 22.09 [d]) and one “who is brought with his or her objection” (§ 22.09 [e]). In the latter case, the person “may be retained for emergency treatment” if he or she is examined by a doctor and found to be incapacitated to such a degree that “there is a likelihood to result in harm to the person or others” (§ 22.09 [e]); a “likelihood to result in harm” to oneself must be “manifested by threats of or attempts at suicide or serious bodily harm or other conduct” that demonstrates a danger of self-injury (Mental Hygiene Law § 22.09 [a] [3]). For the former category — people who, like plaintiff, come to the hospital voluntarily — the Mental Hygiene Law makes no provision for involuntary retention.

Plaintiff concedes that he could not have been retained under Mental Hygiene Law § 22.09. He argues that the Mental Hygiene Law is not the only possible source of a right to confine an intoxicated person. We need not decide that question: Plaintiff cites no other statute, and there is no principle of common law, that would permit the restraint of a patient on the facts of this case.  Kowalski v St Francis Hospital and Health Centers, et al, No 128, CtApp 6-26-13

 

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Irrelevant Information in Presentence Report Should Not Have Been Allowed In “Dangerous Sex Offender” Proceeding

In affirming a jury finding of mental abnormality and a finding that respondent was a dangerous sex offender requiring confinement, the First Department noted that the state’s expert should not have been allowed to testify about respondent’s admission in a presentence report that he was in the vicinity of a rape with which he was never charged:

The court erred in permitting the State expert to testify regarding respondent’s admission, in a presentence report, that he was in the vicinity when a rape, with which he was never charged, was committed. While this statement was sufficiently reliable to show that respondent was in the vicinity of the rape, it was not reliable for the purpose of showing that he committed the rape…. Nevertheless, this error was harmless given the expert’s reliance on two brutal sexual assaults to which respondent pleaded guilty and a third that he admitted committing, and given the court’s appropriate limiting instructions, which served to dispel any prejudice …. Matter of State of New York v Charada T, 2013 NY Slip Op 04548, 1st Dept, 6-18-13

 

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State Court Did Not Have Subject Matter Jurisdiction Over “Dangerous Sex Offender” Civil Management Proceeding Because Defendant Would Not Be Released Upon Finishing State Sentence—Defendant Had 19 Years to Go on Federal Sentence

As a sex offender (respondent) neared the end of his state sentence, the state (petitioner) sought a proceeding under article 10 of the Mental Hygiene Law alleging the respondent was a dangerous sex offender requiring civil management.  However, the respondent was also serving a federal sentence and would not be released for another 19 years.  For that reason, the Fourth Department determined the court did not have subject matter jurisdiction over the Mental Hygiene Law proceeding:

It is well settled that a court is without subject matter jurisdiction “when it lacks the competence to adjudicate a particular kind of controversy in the first place. As the Court of Appeals has observed, ‘[t]he question of subject matter jurisdiction is a question of judicial power: whether the court has the power, conferred by the Constitution or statute, to entertain the case before it’ ”….Moreover, subject matter jurisdiction requires that the matter before the court is ripe …. In other words, courts “may not issue judicial decisions that can have no immediate effect and may never resolve anything,” and thus “an action may not be maintained if the issue presented for adjudication involves a future event beyond control of the parties which may never occur” ….It is axiomatic that an article 10 determination issued in 2013 would have no immediate effect on a sex offender who is not to be released from federal prison until 19 to 22 years later, especially considering the well-accepted principle that a sex offender, who is at one point determined to be dangerous, may subsequently be found to no longer be dangerous—a principle recognized by article 10’s allowance for annual reviews …. Matter of State v Calhoun, CA 11-02578, 314, 4th Dept, 5-3-13

 

Petition for Retention for Involuntary Psychiatric Treatment Granted

In determining the hospital’ petition for retention of a patient for involuntary psychiatric care should have been granted, the Second Department wrote:

Paulina D. is a 23-year-old woman who suffers from severe anorexia nervosa. She has been at Elmhurst Hospital (hereinafter the Hospital) “continually” for 15 months. At one point during that period, Paulina D. weighed only 52 pounds. Orders were issued directing her involuntary admission and retention at the Hospital pursuant to Mental Hygiene Law §§ 9.27 and 9.33. In January 2013, the Hospital petitioned for an order authorizing Paulina D.’s continued involuntary retention pursuant to Mental Hygiene Law § 9.33. …

“Pursuant to Mental Hygiene Law § 9.33, the Supreme Court may authorize the retention of a patient in a hospital for involuntary psychiatric care upon proof by clear and convincing evidence that the patient is mentally ill and in need of further care and treatment, and that the patient poses a substantial threat of physical harm to himself [or herself] or others” … .  Matter of Paulina D, 2013 Slip Op 01988, 2012-02212, Index No 500039/13, 2nd Dept 3-22-13

 

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Records Sealed Pursuant to Criminal Procedure Law 160.50 Can Be Unsealed in “Dangerous Sex Offender” Proceeding Pursuant to Mental Health Law

In a proceeding which determined respondent was a dangerous sex offender requiring confinement, the court ordered the unsealing of records related to three rapes and two robberies for which respondent was indicted in 1968.  The convictions of one count of rape and one count of robbery had been overturned because respondent was found to have been incompetent at the time he pled guilty. In finding the records of the overturned convictions were properly unsealed, the First Department determined that Mental Health Law 10.08 (c), which provides that the State is entitled to all records relating to the respondent’s commission or alleged commission of a sex offense, supersedes Criminal Procedure Law 160.50, which requires that the record of a criminal proceeding that is terminated in favor of the accused be sealed.  State v John S., 2013 NY Slip Op 01622, 9530, 30051/09m 1st Dept. 3-14-13

 

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