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THE ALLEGED INCAPACITATED PERSON (AIP) MUST BE GIVEN THE OPPORTUNITY TO BE PRESENT AT GUARDIANSHIP PROCEEDINGS PURSUANT TO THE MENTAL HYIGIENE LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an alleged incapacitated person (AIP) must be given the opportunity to be present during guardianship proceedings:

The petitioner commenced this proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian of the person and property of her adult daughter Nima B. R., an alleged incapacitated person (hereinafter the AIP). At a hearing on the petition, which was conducted virtually due to the COVID-19 pandemic, the AIP was not present. Although the AIP had indicated to her counsel that she intended to appear, she advised her counsel that she was not feeling well and needed an extra hour to get to the courthouse, and subsequently advised her counsel that she did not feel well and would not be attending. The Supreme Court conducted the hearing in the AIP’s absence, finding that she had “voluntarily absented herself” and noting that she was represented by counsel, had no burden of proof, and was not required to testify. …

Guardianship proceedings, as a drastic intervention in a person’s liberty, must adhere to proper procedural standards … . Mental Hygiene Law § 81.11(c) provides that a hearing to determine whether the appointment of a guardian is necessary for an alleged incapacitated person “must be conducted in the presence of the person alleged to be incapacitated,” including at the alleged incapacitated person’s place of residence if necessary … . “There is an ‘overarching value in a court having the opportunity to observe, firsthand, the allegedly incapacitated person'” … . Accordingly, we remit the matter … for a new hearing at which the AIP shall be afforded an opportunity to be present and a new determination thereafter. Matter of Nima B.R. (Rae-Garwood), 2024 NY Slip Op 06347, Second Dept 12-18-24

Practice Point: An alleged incapacitated person (AIP) has the right to be present at a guardianship proceeding pursuant to the Mental Hygiene Law. Here the AIP said she was not feeling well and would not attend. The matter was remitted for a new hearing after affording the AIP the opportunity to attend.

 

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THE 18 USC 1983 CAUSE OF ACTION AGAINST THE POLICE AND MUNICIPALITY WAS PROPERLY DISMISSED BECAUSE THE DOCTRINE OF REPONDEAT SUPERIOR DOES NOT APPLY AND THERE WAS NO EVIDENCE THE POLICE WERE ACTING PURSUANT TO A MUNICIPAL CUSTOM OR POLICY WHEN THEY ALLEGEDLY PUSHED PLAINTIFF TO THE GROUND, HANDCUFFED HER AND TASED HER; HOWEVER THE BATTERY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the battery cause of action in this Civil Rights Law (18 USC 1983) case should not have been dismissed. The lawsuit stemmed from the police allegedly pushing plaintiff to the ground, striking her, handcuffing her and tasing her. The 18 USC 1983 cause of action was properly dismissed because plaintiff did not prove the police were acting pursuant to a municipal custom or policy. However, the battery cause of action should not have been dismissed:

However … a jury could rationally conclude that the defendants are liable for battery. “‘To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature'” … . “[A]n assault and battery cause of action may be based on contact during an unlawful arrest” … .

At trial, the plaintiff presented evidence from which the jury could rationally conclude that the detention was not privileged under Mental Hygiene Law § 9.41, and the trial evidence showed that the officers engaged in contact with the plaintiff during the allegedly unlawful detention. The trial evidence, viewed in the light most favorable to the plaintiff, was sufficient to allow the jury to rationally conclude that the two officers were acting within the scope of their official duties at the relevant time. Accordingly, the defendants were not entitled to dismissal of the cause of action alleging battery … . Mac v County of Suffolk, 2024 NY Slip Op 06330, Second Dept 12-18-24

Practice Point: A municipality cannot be held liable pursuant to 18 USC 1983 for the actions of police officers under a respondeat superior theory. The plaintiff must show the police were acting pursuant to a municipal custom or policy.

Practice Point: A municipality may be liable for battery committed by police officers acting within the scope of their employment.

 

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THE JUDGE IN THIS MENTAL HYGIENE LAW PROCEEDING SHOULD NOT HAVE HELD THE HEARING ON WHETHER APPELLANT WAS AN INCAPACITATED PERSON IN HER ABSENCE WITHOUT FIRST FINDING SHE COULD NOT MEANINGFULLY PARTICIPATE; IN ADDITION, COUNSEL SHOULD HAVE BEEN APPOINTED FOR APPELLANT BECAUSE SHE WAS CONTESTING THE GUARDIANSHIP PETITION (THIRD DEPT).

The First Department, vacating the judgment that appellant is an incapacitated person and remanding for a hearing, determined Supreme Court should not have held the Mental Hygiene Law section 81.11 hearing in appellant’s absence without first making the finding she was unable to meaningfully participate in it. In addition, Supreme Court should have appointed counsel for the appellant because she was contesting the guardianship petition:

Under the unique facts of this case [not described in the decision], we are exercising our inherent power to vacate the order and judgment in the interest of substantial justice … . Vacatur is warranted in the interest of justice because the court held a hearing pursuant to Mental Hygiene Law § 81.11 in respondent’s absence and without having made a finding regarding her inability to meaningfully participate in the hearing … . In addition, the court failed to appoint counsel to represent respondent even though she was contesting the guardianship petition … . Matter of Jenkins v Gina B., 2024 NY Slip Op 05637, Third Dept 11-14-24

Practice Point: A hearing under the Mental Hygiene Law to determine whether a person is incapacitated should not be held in the person’s absence without a finding he or she could not meaningfully participate in the hearing.

Practice Point: Where a person is contesting a guardianship petition under the Mental Hygiene Law, he or she is entitled to appointed counsel.

 

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THE PROVISION OF THE MENTAL HYGIENE LAW WHICH ALLOWS TEMPORARY CONFINEMENT OF SEX OFFENDERS WITHOUT THE OFFENDER’S PARTICIPATION AT THE PROBABLE CAUSE STAGE IS CONSTITUTIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, affirming the Appellate Division, over a two-judge dissenting opinion, determined the procedure under the Mental Hygiene Law which allows the temporary confinement of sex offenders without the offender’s participation at the probable cause stage is constitutional:

This appeal requires us to examine whether certain provisions of Mental Hygiene Law § 10.11 (d) (4) satisfy procedural due process. Those provisions govern the procedure for the temporary confinement of sex offenders adjudicated to have “mental abnormalities”—but released from confinement to strict and intensive supervision and treatment (SIST)—pending a final SIST revocation hearing. * * *

This appeal concerns the initial step in the process for revoking SIST. “If a parole officer has reasonable cause to believe that” a respondent has violated a SIST condition, or if an “evaluation or report by a treating professional indicat[es] that the person may be a dangerous sex offender requiring confinement,” a parole officer may take the violator into custody and transport them to a facility for a psychiatric evaluation, which must take place within five days … . Once the violator is taken into custody, DOCCS must “promptly” notify the Attorney General and the Mental Hygiene Legal Service (MHLS), which provides legal representation to article 10 respondents … . The Attorney General may then petition for confinement or a petition to modify the conditions within five days …  The petition must “be served promptly on the respondent and [MHLS],” and the court must appoint legal counsel to represent the respondent and provide counsel with a copy of the psychiatric evaluation … . If the Attorney General files a petition seeking confinement,

“then the court shall promptly review the petition and, based on the allegations in the petition and any accompanying papers, determine whether there is probable cause to believe that the respondent is a dangerous sex offender requiring confinement. Upon the finding of probable cause, the respondent may be retained in a local correctional facility or a secure treatment facility pending the conclusion of the proceeding” … .

* * * “The respondent shall not be released pending the completion of the hearing” … . People ex rel. Neville v Toulon, 2024 NY Slip Op 05178, CtApp 10-22-24

Practice Point: The provision of the Mental Hygiene Law which allows temporary confinement of sex offenders without the offender’s participation at the probable cause stage is constitutional.

 

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THE HEARING OFFICER RECOMMENDED THAT JUSTICE DD, A SEVERELY DISABLED MAN, REMAIN AT HIS CURRENT PLACEMENT IN MASSACHUSETTS AND NOT BE MOVED TO A NEW PLACEMENT IN NEW YORK; THE COMMISSIONER OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES (OPWDD), NEARLY A YEAR LATER, REJECTED THE HEARING OFFICER’S RECOMMENDATION AND ORDERED THE NEW PLACEMENT; BECAUSE JUSTICE DD’S CONDITION HAD WORSENED DURING THAT TIME, THE COMMISSIONER’S DETERMINATION WAS ANNULLED (THIRD DEPT).

The Third Department annulled the determination of the Office for People with Developmental Disabilities (OPWDD). The Commissioner of the OPWDD rejected the hearing officer’s findings and ordered that Justice DD, the disabled man, be removed from his current placement in Massachusetts and placed in New York. The Third Department held that the nearly one-year delay between the hearing officer’s recommendation that Justice DD remain placed in Massachusetts and the Commissioner’s rejection of the recommendation, during which Justice DD’s condition had deteriorated, required annulment of the Commissioner’s ruling:

… [D]espite the Legislature’s use of the word “shall” in specifying that respondent [the Commissioner] is to issue a determination within 30 days of adjournment of the hearing, this language was merely directory based upon the absence of any “specific consequence to flow from the administrative agency’s failure to act in violation of the time limit” … .

“When an administrative body fails to comply with procedural provisions that are merely directory, relief will be granted only if petitioners show that substantial prejudice resulted from the noncompliance” … . We find that petitioners have made such a showing here and, as a result, respondent “must face the consequences of [her] delays” … . Matter of Hannah DD. v Neifeld, 2024 NY Slip Op 05167, Third Dept 10-17-24

Practice Point: The regulation that requires the Commissioner of the OPWDD to make a ruling on the placement of a disabled person within 30 days of the adjournment of the hearing is merely “directory,” not “mandatory.” However, if, as here, the failure to issue the ruling within 30 days results in prejudice to the disabled person, the delay is a valid ground for annulment of the Commissioner’s ruling.​

 

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ALTHOUGH RESPONDENT SEX OFFENDER VIOLATED RULES IMPOSED BY THE “STRICT AND INTENSIVE SUPERVISION” (SIST) REGIMEN, HE DID NOT EXHIBIT ANY DANGEROUS SEXUAL BEHAVIOR; THEREFORE RESPONDENT SHOULD NOT HAVE BEEN CONFINED AND SHOULD BE RELEASED AND MANAGED UNDER “SIST” (FIRST DEPT).

The First Department, reversing Supreme Court, determined that, although respondent sex offender violated some of the rules associated with his released into the community, the violations were not related to sexual behavior. Therefore respondent should not be confined and should be released to the community and managed under SIST (strict and intensive supervision):

It is undisputed that, during the relevant period, respondent made no sexual threats, did not approach any treatment staff in a sexual manner, and did not express any sexual impulses or urges. We agree with our sister department that “in the absence of evidence of sexually inappropriate conduct while on SIST, it becomes incumbent on the State to demonstrate a persuasive link between a nonsexual SIST violation and the offender’s ability to control his sexual behavior” … . “A mere tendency to engage in risky or socially undesirable conduct — even if that conduct provides an opportunity for, or increases the likelihood of, sexual offending — is quintessentially insufficient to establish ‘inability’ under the Michael M. formulation” (George N., 160 AD3d at 31 …). Finally, a respondent’s mere struggling with sexual urges is insufficient to show inability to control … . Matter of State of New York v Anthony R., 2024 NY Slip Op 03392, First Dept 6-20-24

Practice Point: A sexual offender who has not exhibited any dangerous sexual behavior under SIST should be released and management under SIST should be continued. Confinement is not justified by non-sexual SIST violations.

 

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IN THIS MENTAL HYGIENE LAW ARTICLE 10 PROCEEDING TO DETERMINE WHETHER RESPONDENT SEX OFFENDER SUFFERED FROM A MENTAL ABNORMALITY WARRANTING CIVIL MANAGEMENT, THE JUDGE CONFLATED TWO DIFFERENT LEGAL STANDARDS, ERRONEOUSLY FOUND THAT A MENTAL ABNORMALITY CANNOT BE PROVEN BY A CONSTELLATION OF CONDITIONS, DISEASES AND DISORDERS, AND IMPROPERLY RELIED ON OUTSIDE RESEARCH (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Singh, over an extensive dissenting opinion, reversing Supreme Court and ordering a new trial, determined several errors by the judge in this Mental Hygiene Law article 10 proceeding tainted the judge’s finding that the state had not proven respondent sex offender suffered from a mental abnormality and required civil management:

This article 10 proceeding arose out of respondent Richard V.’s 2002 conviction of rape in the first degree. In October 2001, respondent and an accomplice posed as plumbers to gain entry to the apartment of a female acquaintance. After the woman brought them inside, respondent subdued her with pepper spray, restrained her, repeatedly attacked her, threatened to kill her, and twice violently raped her.* * *

The sole issue at the bench trial was whether respondent suffers from a mental abnormality that “predisposes [him] to the commission of conduct constituting a sex offense” resulting in “having serious difficulty [] controlling such conduct” … . At the second stage of an article 10 proceeding — the dispositional phase — the standard is whether a respondent has “such an inability to control his behavior that [he] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” …

There can be little dispute that Supreme Court conflated the applicable legal standards. * * *

… Supreme Court committed reversible error in finding that the State could not use a “constellation” of conditions, diseases, and disorders to establish that respondent has a mental abnormality. * * *

Supreme Court’s extensive usage of outside research blurred the lines between the roles of judge and counsel, depriving the parties of the opportunity to respond … . Matter of State of New York v Richard V., 2024 NY Slip Op 02158, First Dept 4-23-24

Practice Point: When a judge does outside research to inform the decision, the parties are deprived of the opportunity to respond.

 

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SM STABBED INFANT PLAINTIFF SHORTLY AFTER BEING TREATED BY DEFENDANT HOSPITAL WHICH ALLEGEDLY NEGLIGENTLY FAILED TO DETAIN OR REPORT SM; ALTHOUGH SM DID NOT WAIVE THE PATIENT-PHYSICIAN PRIVILEGE, PLAINTIFF WAS ENTITLED TO AN IN CAMERA REVIEW OF SM’S MEDICAL RECORDS AND DISCLOSURE OF ANY RELEVANT NONMEDICAL INFORMATION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the demand for disclosure of SM’s medical records was properly denied because SM had not waived the physician-patient privilege, but the request for an in camera review of the records for nonmedical information should have been granted. SM has been treated by defendant New York City Health + Hospital/Lincoln Medical Center (NYCHH) shortly before SM stabbed infant plaintiff. Plaintiff alleged NYCHH should have reported SM and detained her or taken some other measures to protect infant plaintiff:

Infant plaintiff and her father allege that NYCHH’s employees negligently treated SM when she presented to the hospital on April 26 and April 27, 2016, shortly before she stabbed the infant plaintiff and brother, resulting in the brother’s death. They allege that SM had a history of mental illness for which she had been treated by NYCHH on “scores of previous occasions,” and that NYCHH failed to detain SM, call a report to the Statewide Central Register of Child Abuse and Maltreatment, or “take any other action to protect” the infant plaintiff. SM, who is currently incarcerated, has not waived the physician-patient privilege and is believed to be unable or unwilling to do so.

Supreme Court properly determined that Mental Hygiene Law § 33.13(c)(1) does not apply to allow disclosure of SM’s hospital records in the interests of justice, absent SM’s consent or express or implied waiver of the physician-patient privilege provided by CPLR 4504, 4507 … . … Supreme Court should have granted plaintiffs’ alternative request for in camera review to determine whether the records include information of a nonmedical nature, such as observations of SM’s conduct, language, and appearance and factual matters, which is subject to disclosure … . S.M. v City of New York, 2024 NY Slip Op 01689, First Dept 3-26-24

Practice Point: Although medical records are protected from disclosure by the patient-physician privilege, relevant nonmedical, factual information in the records may be disclosed pursuant to an in camera review.

 

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THE SORA RISK-LEVEL ASSESSMENT PROCEEDINGS MUST BE CONDUCTED 30 DAYS BEFORE DEFENDANT’S RELEASE FROM CONFINEMENT, REGARDLESS WHETHER THE STATE IS CONSIDERING OR IS IN THE PROCESS OF INSTITUTING CIVIL COMMITMENT PROCEEDINGS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Curran, over a comprehensive two-judge dissenting opinion by Judge Wilson, determined that the sex offender risk-level assessment proceedings must be held 30 days prior to a defendant’s release from confinement, regardless whether the state is considering instituting, or already has instituted, proceedings to civilly commit the defendant pursuant to the Sex Offender Management and Treatment Act (SORA):

The Sex Offender Registration Act (SORA) (Correction Law § 168 et seq.) provides that a sex offender “shall” be classified into one of three risk level categories “[30] days prior to discharge, parole or release” (Correction Law § 168-n [2]). The central question presented by these appeals is whether, for purposes of SORA, this deadline is properly measured from the date an offender is released from confinement by the Department of Corrections and Community Supervision (DOCCS), despite pending or contemplated proceedings to civilly commit the offender under the Sex Offender Management and Treatment Act (SOMTA) (Mental Hygiene Law § 10.01 et seq.). We hold that, under a plain reading of SORA, the 30-day deadline for conducting a risk level classification hearing must be measured from an offender’s release by DOCCS upon the completion of a prison sentence, irrespective of whether the state is considering instituting, or has already instituted, proceedings under SOMTA. We further hold that offenders are not denied due process by having a SORA hearing at a time when they may be civilly committed under SOMTA. People v Boone, 2024 NY Slip Op 00928, CtApp 2-22-24

Practice Point: SORA risk-level-assessment proceedings are to be held 30 days prior to defendant’s release from confinement and cannot be delayed because the state is considering or has instituted proceedings for civil commitment.

 

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EVEN WHERE IT IS POSSIBLE DEFENDANT LACKS THE CAPACITY TO UNDERSTAND THE SORA RISK-LEVEL PROCEEDINGS, THE RISK-LEVEL ASSESSMENT CAN BE MADE WITHOUT AN INDEPENDANT ASSESSMENT OF DEFENDANT’S MENTAL CAPACITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannaturo, over a two-judge dissenting opinion by Judge Rivera, and a dissent by Judge Halligan, determined the SORA risk-level proceedings can proceed without an assessment of the defendant’s mental health, even where, as here, there is a possibility defendant make lack the capacity to fully comprehend the risk-level proceedings:

The Sex Offender Registration Act (SORA) requires that every person convicted of a sex offense be given a risk-level classification corresponding to their assessed likelihood of recidivism and potential danger to the community. This risk level, in turn, determines the scope of information available to the public concerning the offender. To protect against erroneous classification, judicial determination of an offender’s risk level can occur only after the offender has been provided notice, counsel, disclosure of relevant information, and an opportunity to object and present evidence at a hearing, at which the People must prove the appropriateness of the classification by clear and convincing evidence. An offender’s risk level is also subject to re-evaluation on an annual basis.

The primary question on this appeal is whether due process precludes a court from determining a sex offender’s risk level when there is a possibility that the offender—although represented by counsel and provided the other protections listed above—may lack capacity to fully comprehend risk-level assessment proceedings. We hold that the many safeguards already provided under SORA minimize the risk of inaccurate risk-level classification and adequately balance the competing private and State interests in these civil proceedings. People v Watts, 2024 NY Slip Op 00926, CtApp 2-22-24

Practice Point: The safeguards in place for SORA-risk-level-assessment proceedings are sufficient to protect the rights of a defendant who may lack the capacity to comprehend the proceedings. There is no need for an independent assessment of defendant’s mental capacity before making the risk-level assessment.

 

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