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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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Surrogate’s Court Could Not Award Attorney’s Fees for Services Provided to Decedent’s Legatee (as Opposed to Services which Benefitted the Estate)

The Second Department upheld Surrogate’s Court’s ruling that it did not have jurisdiction to award attorney’s fees for the attorney’s (Klein’s) handling of Mental Hygiene Law article 81 proceeding to have decedent’s legatee (Theodore) declared an incapacitated person:

“The Surrogate’s Court, as a court of limited jurisdiction, may exercise only the powers conferred upon it by statute and those powers incidental, inherent or necessary to do justice in a particular case to which its jurisdiction extends” … . Although the Surrogate’s Court Procedure Act authorizes the court to fix and determine attorney’s fees for services rendered to a beneficiary of an estate (see SCPA 2110[1]), “[t]he only proper parties before the Surrogate on an accounting are creditors or those claiming to be creditors of the decedent” … . Contrary to Theodore’s contention, “the Surrogate’s Court has no jurisdiction over a claim by a creditor against a distributee or legatee of an estate” … . However,”the Surrogate has jurisdiction to determine, and is in the best position to determine, which legal services performed by [an attorney] benefitted the estate, and which benefitted only the individual interests of [a party]” … . Since the record supports the Surrogate’s determination that the services performed by Klein benefitted Theodore personally rather than the decedent’s estate, the court, in effect, upon reargument, properly adhered to its determination that it lacked jurisdiction to set Klein’s fee… . Matter of Tarlow, 2013 NY Slip Op 07491, 2nd Dept 11-13-13

 

Article 81 Guardianship Hearing Should Not Have Been Held in the Absence of the Alleged Incapacitated Person; Counsel Should Have Been Appointed for the Alleged Incapacitated Person

The Second Department determined a hearing pursuant to Mental Hygiene Law article 81 to appoint a guardian for the person and property of an alleged incapacitated person should not have been held in the absence of the alleged incapacitated person.  The court further held counsel should have been appointed for the alleged incapacitated person:

The Supreme Court erred in conducting a hearing in the appellant’s absence. There was no evidence presented at the hearing that the appellant was unable to be present in court, that she was unable to participate in the hearing, or that no meaningful participation would result from her presence … . Furthermore, the court failed to set forth in the resulting order and judgment of appointment a sufficient factual basis for conducting the hearing without the appellant being present (see Mental Hygiene Law § 81.11[d]…).

Moreover, since there was no evidence that the appellant made an informed decision to refuse the assistance of counsel, the Supreme Court should have appointed counsel to represent her… Matter of Gulizar NO (Rudy O), 2013 NY Slip Op 07489, 2nd Dept 11-13-13

 

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False Imprisonment Claims Against Hospital for Involuntary Confinement Turn on Finding of Medical Malpractice

In affirming the dismissal of a complaint against a hospital for false imprisonment based on involuntary confinement pursuant to the Mental Hygiene Law, the Third Department explained the relevant analysis. Plaintiff had made death threats against family members:

Pursuant to the Mental Hygiene Law, an individual may be temporarily confined on an involuntary basis where he or she has “a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself[, herself] or others” (Mental Hygiene Law § 9.39 [a]).  We agree with Supreme Court that all of plaintiff’s claims against the hospital are, in effect, claims for false imprisonment, inasmuch as they are all based upon allegations of unlawful seizure and involuntary confinement… .  These claims all turn upon a finding of medical malpractice because “[c]ommitment pursuant to Mental Hygiene Law article 9 is deemed privileged in the absence of medical malpractice”… .  Accordingly, the hospital was required to make a prima facie showing that its medical treatment did not depart from accepted standards of care… . Tienken v Benedictine Hospital, 514164, 3rd Dept 10-31-13

 

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Error to Preclude Witness for Sexual Offender in Article 10 Proceeding

In a Mental Hygiene Law article 10 proceeding to determine whether Enrique D, a sexual offender, suffered from a mental abnormality justifying civil confinement, the Court of Appeals determined the judge erred in refusing to allow a former girlfriend, Naomi N, to testify about whether Enrique ever tried to offend against her and whether Enrique respected her “boundaries:”

In the circumstances of this case, Supreme Court abused its discretion by precluding Naomi N. from testifying.  Mental Hygiene Law § 10.08 (g) provides that a respondent in an article 10 proceeding “may, as a matter of right, testify in his or her own behalf, call and examine other witnesses, and produce other evidence in his or her behalf.”  This provision manifestly does not limit a respondent to expert witnesses.  The pertinent question is whether a witness — expert or lay — has material and relevant evidence to offer on the issues to be resolved.

Here, Naomi N.’s rejected testimony was relevant to the State expert’s diagnosis of paraphilia NOS — non-consent.  The jury was asked to decide whether Enrique D. suffered a condition, disease, or defect that predisposed him to commit sex offenses, and whether that condition caused him serious difficulty in controlling his sex offending conduct.  With respect to the first prong, Naomi N.’s testimony would have called into question whether Enrique D. exhibited a longstanding fixation on nonconsenting women; as to the second, her testimony was relevant to show whether he experienced difficulty controlling his sexual behavior.  Matter of State of New York v Enrique D, 168, CtApp 10-22-13

 

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“Missing Witness Rule” Properly Applied in Bench-Trial Proceeding to Determine Whether Antipsychotic Medication Should Be Administered to Involuntarily Committed Patient Over Patient’s Objection—Treating Psychiatrist Not Called by Facility

In a full-fledged opinion by Justice Angiolillo, the Second Department determined the “missing witness rule” was properly applied in a civil, bench-trial proceeding for permission to administer antipsychotic medication to an involuntarily committed patient over his objection. The psychiatric center which brought the proceeding did not call the treating psychiatrist as a witness and relied exclusively upon the testimony of a psychiatrist who had reviewed the records. The trial court determined the failure to call the treating psychiatrist gave rise to an inference adverse to the position of the psychiatric center and, under the facts which indicated there may have been disagreement with the reviewing psychiatrist’s findings, the dismissal of the psychiatric center’s petition was warranted.  In explaining the relevant procedures and the applicability of the “missing witness rule,” the Second Department wrote:

The procedures for administering treatment over the objection of an involuntarily committed patient are set forth in detailed regulations promulgated by the Commissioner of the New York State Office of Mental Health, pursuant to Mental Hygiene Law § 7.09(b) (see 14 NYCRR 501.1[a], 501.2[b]). A facility must follow stringent procedures prior to filing a petition seeking court authorization to administer the treatment (see 14 NYCRR 527.8[c][4]). The process requires a series of clinical evaluations of the patient, all of which must be completed within 24 hours (see 14 NYCRR 527.8[c][4][ii]).

First, the patient’s treating physician must determine that the treatment is in the patient’s best interests in light of all relevant circumstances, including the risks, benefits, and alternatives to treatment, and that the patient lacks the capacity to make a reasoned decision concerning treatment. The treating physician must forward the evaluation and findings to the clinical director with a request for further review, and notify, in writing, the patient, Mental Hygiene Legal Services (hereinafter MHLS), and any other representative of the patient (see 14 NYCRR 527.8[c][4][ii][a]).

Second, the clinical director must appoint a physician to review the patient’s record, and personally examine the patient, to evaluate whether the proposed treatment is in the patient’s best interests and whether the patient has the capacity to make a reasoned decision concerning treatment. If the reviewing physician determines that treatment over objection is appropriate, the physician must personally inform the patient of that determination (see 14 NYCRR 527.8[c][4][ii][b][1]). Alternatively, if there is a substantial discrepancy between the opinions of the treating physician and the reviewing physician regarding the patient’s capacity or best interests, the clinical director may appoint a third physician to conduct an evaluation (see 14 NYCRR 527.8[c][4][ii][b][2]).

Finally, if, after completion of the evaluation by the reviewing physician (or physicians), the patient continues to object to the proposed treatment, the clinical director must make a determination on behalf of the facility. If the director finds that the patient lacks capacity, and that treatment over objection is in the patient’s best interests, the director may apply for court authorization to administer the treatment and so notify the patient, MHLS, and any other patient representative. However, if the director makes the opposite determination, the patient’s objections must be honored (see 14 NYCRR 527.8[c][4][ii][b][3]). * * *

“A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party” … . Where one or more of these elements is absent, the movant is not entitled to the charge … .Moreover, the missing witness rule may be applied in a nonjury civil trial, where the trial court, as finder of fact, is permitted to draw a negative inference against a party failing to call a witness … .The missing witness rule is related to the broader principle that “[a] trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding” … Matter of Adam K, 2013 NY Slip Op 05631, 2nd Dept 8-14-13

 

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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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