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THE INCAPACITATED PERSON’S SON SHOULD NOT HAVE BEEN REPLACED AS GUARDIAN BY A NON-FAMILY-MEMBER IN THE ABSENCE OF A TESTIMONIAL HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Incapacitated Person’s (IP’s) son should not have been removed as guardian and replaced with a non-family-member in the absence of a testimonial hearing:

Rather than hold a testimonial hearing, Supreme Court simply accepted what the Court Examiner claimed in her motion. The Court did not make any findings of fact or conclusions of law to justify the removal of petitioner. Nor did it hold that removal of the petitioner was in the best interest of the IP. Petitioner did not have any opportunity to testify under oath, or rebut the allegations made against him, despite his competency as a guardian being directly at issue … . A testimonial hearing in this case is necessary so that the record can be developed, and the disputed issues of fact and law can be resolved.

We have long recognized that strangers will not be appointed either a guardian of the person or the property unless it is impossible to find someone within the family circle who is qualified to serve  … . The preference for a relative may be overridden by a showing that the guardian-relative has rendered inadequate care to the IP, has an interest adverse to the IP or is otherwise unsuitable to exercise the powers necessary to assist the IP … . Moreover, the ultimate remedy of removal may be an abuse of discretion, where a guardian’s errors do not prejudice or harm the estate. The court should also consider whether other less drastic remedies, such as ordering compliance or reducing the guardian’s compensation, would be appropriate. Matter of Roberts v Maxis, 2021 NY Slip Op 05833, First Dept 10-26-21

 

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SUPREME COURT DID NOT WEIGH THE CONFLICTING EXPERT TESTIMONY ABOUT WHETHER PETITIONER SEX-OFFENDER SUFFERED FROM A MENTAL ABNORMALITY REQUIRING CONFINEMENT PURSUANT TO THE MENTAL HYGIENE LAW; MATTER SENT BACK FOR A NEW HEARING BEFORE A DIFFERENT JUDGE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this sex-offender Mental-Hygiene-Law proceeding, determined the court did not base its decision to discharge and release the petitioner on the expert evidence presented at the hearing. The matter was sent back for a new hearing before a different judge:

The State’s expert here diagnosed petitioner with ASPD [antisocial personality disorder] with narcissistic features and the condition of psychopathy, and the expert testified that those diagnoses, together with petitioner’s enduring hostility towards women, collectively constitute a mental abnormality within the meaning of Mental Hygiene Law § 10.03 (i). She acknowledged that the scientific community has been debating for decades whether psychopathy is a distinct condition from ASPD, but she opined that they were indeed separate conditions. Petitioner’s expert, on the other hand, diagnosed petitioner with ASPD but testified that petitioner had no other conditions in addition to that diagnosis that would render him a sex offender within the meaning of Mental Hygiene Law article 10. He further testified that psychopathy was simply an extreme variant of ASPD and should not be considered a condition separate from ASPD.

The court determined that a diagnosis of psychopathy or psychopathic features is still only a diagnosis of ASPD alone and thus, under Donald DD. (24 NY3d at 190), could not constitute an “other condition” to provide a basis for a finding of a mental abnormality. … [I] so holding, the court did not resolve the conflict between the experts regarding ASPD and psychopathy by weighing their testimony but rather made a determination that, generally speaking and without regard to petitioner’s specific case, a finding of ASPD and psychopathy can never provide a basis for a finding of mental abnormality. Contrary to the court’s apparent conclusion, “the Court of Appeals in Donald DD. did not state that diagnosis of ASPD with psychopathy is insufficient to support a finding of mental abnormality” … . When supported by expert testimony, a diagnosis of ASPD and psychopathy is legally sufficient to provide a basis for a finding of mental abnormality Inasmuch as there was conflicting expert opinion on the matter, the court should have weighed the testimony of the experts in rendering its determination whether petitioner suffers from a mental abnormality … . Matter of Application for Discharge of Doy S. v State of New York. 2021 NY Slip Op 04456, Fourth Dept 7-16-21

 

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PLAINTIFF WAS BROUGHT TO THE HOSPITAL PURSUANT TO THE MENTAL HYGIENE LAW AFTER THREATENING FAMILY MEMBERS AND KILLING A DOG; DEFENDANTS RELEASED PLAINTIFF THE SAME DAY AND PLAINTIFF KILLED THE FAMILY MEMBERS; PLAINTIFF ENTERED A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL ILLNESS; THE RULE PROHIBITING A PLAINTIFF FROM TAKING ADVANTAGE OF HIS OWN WRONG DID NOT APPLY AND DEFENDANTS’ MOTION TO DISMISS THIS MEDICAL MALPRACTICE WAS PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined plaintiff’s medical (psychiatric) malpractice action properly survived a motion to dismiss. Plaintiff was treated by defendants after he was brought to the hospital by the police pursuant to Mental Hygiene Law 9.41. Plaintiff had threatened family members and killed a dog. Plaintiff was released the same day and shortly thereafter killed the three family members he had threatened. Ultimately plaintiff entered a plea of not responsible by reason of mental illness or defect. The courts refused to apply the rule prohibiting a plaintiff from taking advantage of his own wrong because plaintiff was not responsible for his conduct:

With respect to the ground for dismissal asserted here, “as a matter of public policy, . . . where a plaintiff has engaged in unlawful conduct, the courts will not entertain suit if the plaintiff’s conduct constitutes a serious violation of the law and the injuries for which the plaintiff seeks recovery are the direct result of that violation” … . The rule derives from the maxim that “[n]o one shall be permitted to profit by his [or her] own fraud, or to take advantage of his [or her] own wrong, or to found any claim upon his [or her] own iniquity, or to acquire property by his [or her] own crime” … . In cases in which the doctrine applies, “recovery is precluded ‘at the very threshold of the plaintiff’s application for judicial relief’ ” … . Notably, the Court of Appeals has applied the doctrine with caution to avoid overextending it inasmuch as the rule “embodies a narrow application of public policy imperatives under limited circumstances” … . * * *

… [A]ccepting the facts as alleged in the complaint as true, we conclude that the criminal court’s acceptance of plaintiff’s plea of not responsible by reason of mental disease or defect demonstrates that, at the time of his conduct constituting a serious violation of the law, plaintiff lacked substantial capacity to know or appreciate either the nature and consequences of his conduct or that such conduct was wrong … . Thus, unlike cases applying the rule to preclude recovery, the record here establishes that plaintiff’s illegal conduct was not knowing, willful, intentional, or otherwise sufficiently culpable to warrant application of the rule … . Bumbolo v Faxton St. Luke’s Healthcare, 2021 NY Slip Op 04429, Fourth Dept 7-16-21

 

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ALTHOUGH DOMINICA, THE EXECUTRIX OF JOSEPHINE’S ESTATE, WAS NEVER SUBSTITUTED FOR JOSEPHINE AFTER JOSEPHINE’S DEATH, DOMINICA APPEARED AND ACTIVELY LITIGATED A MOTION TO VACATE; THE FAILURE TO EFFECT SUBSTITUTION IN THAT CIRCUMSTANCE IS A MERE IRREGULARITY; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the failure to substitute the executrix of Josephine’s estate, Dominica P., after Josephine’s death did not nullify the proceedings. Dominca P appeared and actively litigated a motion to vacate brought by Kathleen. In that circumstance the failure to effect substitution was deemed a mere irregularity:

Josephine died at some point before the entry of the order on appeal, and the executrix of her estate, Dominica P., was never formally substituted as the petitioner in this proceeding. There is no dispute, however, that Dominica was properly served with Kathleen’s motion to vacate, and Dominica never objected to adjudicating Kathleen’s motion in the absence of a formal substitution order. To the contrary, Dominica—acting in her capacity as the executrix of Josephine’s estate—appeared and successfully opposed Kathleen’s motion on the merits. Dominica likewise appeared in this Court to oppose Kathleen’s appeal. Because Dominica appeared and actively litigated Kathleen’s motion on the merits, it is well established that any “defect in failing to first effect substitution was a mere irregularity” … . Moreover, to formally correct this irregularity, we now modify the order by substituting Dominica as the petitioner in this proceeding … . Matter of Robinson v Kathleen B., 2021 NY Slip Op 04320, Fourth Dept 7-9-21

 

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ALTHOUGH THE RESPONDENT-SEX-OFFENDER WAS PROPERLY ALLOWED TO REPRESENT HIMSELF IN THE CIVIL COMMITMENT PROCEEDING, HE SHOULD NOT BE ALLOWED TO CROSS-EXAMINE THE WITNESSES WHO WERE VICTIMS OF HIS SEX OFFENSES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, reversing Supreme Court, determined the respondent-sex-offender in this civil commitment proceeding, who was properly allowed to represent himself with a Mental Hygiene Legal Service (MHLS) attorney as stand-by counsel, should not be allowed to cross-examine the witnesses who had been victims of the respondent’s offenses. The cross-examination should be done by stand-by counsel:

… [A]llowing respondent to personally conduct the cross-examinations of the victim witnesses could thwart or impair petitioner’s ability to sustain its burden of proof by causing the witnesses to back out of testifying or by causing a “chilling effect” on their testimony. Moreover, petitioner has a compelling interest in protecting the victim witnesses from any possible retraumatization resulting from respondent personally conducting cross-examinations of them.

Upon balancing the foregoing Mathews factors, we find that, to the extent that respondent has a due process right to self-representation, such right does not entitle him to personally conduct the cross-examinations of the victim witnesses whom he was adjudicated or alleged to have victimized. Thus, notwithstanding respondent’s pro se status, the cross-examinations of the victim witnesses must be conducted by respondent’s standby counsel (MHLS) or, should respondent prefer, other court-appointed counsel. Matter of State of N.Y. v John T., 2021 NY Slip Op 02862, Third Dept 5-6-21

 

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SUPREME COURT SHOULD NOT HAVE DENIED PETITIONER-SEX-OFFENDER’S REQUEST TO REPRESENT HIMSELF IN THE MENTAL HYGIENE LAW ARTICLE 10 CIVIL COMMITMENT PROCEEDING (FOURTH DEPT).

The Fourth Department, reversing the Mental Hygiene Law article 10 civil commitment of petitioner as a dangerous sex offender, determined Supreme Court should not have denied petitioner’s request to represent himself:

We have recognized that a respondent in a Mental Hygiene Law article 10 proceeding “can effectively waive his or her statutory right to counsel” once the court “conducts a searching inquiry to ensure that the waiver is unequivocal, voluntary, and intelligent” … . In the instant case, respondent made a timely and unequivocal request to proceed pro se, the court conducted the requisite searching inquiry, and respondent repeatedly evinced an understanding of each of the court’s warnings to him regarding the possible consequences of proceeding pro se … . The court, however, denied the request because it believed that respondent “[had] a good chance of prevailing” but did not believe that respondent “[had] a chance . . . of prevailing if [the court] let [respondent] go pro se.”

On the record before us, we conclude that the court’s sole rationale for denying the request was its belief that respondent lacked legal training and an understanding of the law, but that is not an appropriate basis on which to deny a request to proceed pro se … . “[M]ere ignorance of the law cannot vitiate an effective waiver of counsel as long as the defendant was cognizant of the dangers of waiving counsel at the time it was made” … . Matter of State of New York v Michael M., 2021 NY Slip Op 02636, Fourth Dept 4-30-21

 

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BASED UPON JUROR MISCONDUCT, THE TRIAL JUDGE SET ASIDE THE JURY VERDICT FINDING DEFENDANT SEX OFFENDER DID NOT SUFFER FROM A MENTAL ABNORMALITY AND ORDERED A NEW TRIAL; THE APPELLATE DIVISION REVERSED; THE COURT OF APPEALS REINSTATED THE TRIAL JUDGE’S RULING (CT APP).

The Court of Appeals, without any discussion of the facts or the law, reversed the Appellate Division (Matter of State of New York v Donald G., 2020 NY Slip Op 04716, Fourth Dept 8-20-20) and reinstated the trial court’s setting aside the verdict based on juror misconduct. The jury had decided defendant, a sex offender, did not suffer from a mental abnormality requiring civil commitment and should be released. The trial judge set aside that verdict and ordered a new trial. The trial judge’s ruling was here reinstated by the Court of Appeals:

Under these circumstances, Supreme Court did not abuse its discretion as a matter of law in ordering a new trial in the interest of justice on the ground of juror misconduct. Respondent’s remaining contentions have been considered and are without merit. Matter of State of New York v Donald G., 2021 NY Slip Op 01935, CtApp 3-30-21

 

 

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THE EVIDENCE DEMONSTRATED RESPONDENT, WHO HAD ENTERED A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT TO RAPE, ASSAULT AND OTHER CHARGES, SUFFERED FROM A DANGEROUS MENTAL DISORDER REQUIRING CONTINUED PLACEMENT IN A SECURE FACILITY, SUPREME COURT REVERSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined respondent constituted a danger to himself and others and should remain in a secure facility. Respondent had entered a plea of not responsible by reason of mental disease or defect to rape, assault, criminal possession of a weapon and endangering the welfare of a child. Supreme Court had found that respondent was no longer suffering from a dangerous mental disorder and placed him in a nonsecure facility:

To establish that a person suffers from a dangerous mental disorder requiring commitment in a secure facility, the petitioner bears the burden of demonstrating, by a fair preponderance of the evidence, that the person suffers from a “mental illness,” as that term is statutorily defined (see Mental Hygiene Law § 1.03 [20]), and “that because of such condition he [or she] constitutes a physical danger to himself [or herself] or others” (CPL 330.20 [1] [c]). * * *

Supreme Court rejected petitioner’s evidence and instead concluded that respondent no longer suffered from a dangerous mental disorder, implicitly crediting the opinion of respondent’s expert. However, the court’s factual findings were self-contradictory. Supreme Court credited petitioner’s expert’s diagnoses of respondent, finding, among other things, that respondent has bipolar disorder and a traumatic brain injury. These diagnoses, which cause impaired judgment and impulse control, contributed to the opinion of petitioner’s expert that respondent constituted a present danger to himself and to his female peers. Without explanation, respondent’s expert omitted the diagnoses of bipolar disorder and traumatic brain injury. In concluding that respondent no longer suffers from a dangerous mental disorder, Supreme Court relied upon an opinion that did not account for diagnoses that the court found respondent to have. Thus, the court never considered the impact that the diagnoses have on respondent’s behavior and present dangerousness.  Matter of James Q., 2021 NY Slip Op 01545, Third Dept 3-18-21

 

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A COMPETENT ADULT MAY REVOKE A HEALTH CARE PROXY; HERE PETITIONER’S MOTHER REVOKED THE PROXY BY EXECUTING A DOCUMENT REVOKING ALL DOCUMENTS OF AUTHORITY IN FAVOR OF PETITIONER (FIRST DEPT).

The Second Department determined that a document executed by Angela M., Mark M.’s mother, revoking all documents of authority in favor of Mark M. included a health care proxy:

“A competent adult may revoke a health care proxy by notifying the agent or a health care provider orally or in writing or by any other act evidencing a specific intent to revoke the proxy” (Public Health Law § 2985[1][a]). Angelina M. revoked the health care proxy prior to her incapacitation by executing a written revocation expressly revoking “any and all” documents of authority “of every nature[,] type[,] and description” in favor of Mark M. Contrary to Mark M.’s contention, the revocation is not limited to powers of attorney related to Angelina M.’s interest in real properties and certain limited liability companies and reflects Angelina M.’s intent to revoke all documents of authority in his favor, including the health care proxy. Also contrary to Mark M.’s contention, the revocation is clear and unambiguous, and the Supreme Court properly declined to consider the affidavit of the attorney who drafted the revocation … . Matter of Angelina M. (Mark M.), 2021 NY Slip Op 00649, First Dept 2-4-21

 

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A FINDING DEFENDANT SUFFERS FROM A MENTAL ABNORMALITY CANNOT BE BASED SOLELY ON A FINDING DEFENDANT SUFFERS FROM ANTI-SOCIAL PERSONALITY DISORDER (ASPD); REFUSAL OF DEFENDANT’S REQUEST FOR A JURY INSTRUCTION TO THAT EFFECT WAS REVERSIBLE ERROR; DEFENDANT’S MOTION TO SET ASIDE THE VERDICT ADJUDICATING HIM A SEX OFFENDER REQUIRING CIVIL MANAGEMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the jury in this Mental Hygiene Law sex-offender civil-commitment trial should have been instructed that the anti-social personality disorder (ASPD) diagnosis cannot, standing alone, support a finding defendant has a mental abnormality as defined in the Mental Hygiene Law. The fact that the Pattern Jury Instructions do not include an instruction on this issue is not a justification for failing to give the instruction:

Mental Hygiene Law 10.03 defines “Mental abnormality” as a “congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct.” In Matter of State of New York v Donald DD (24 NY3d 174 [2014]), the Court of Appeals expressly held: “evidence that a respondent suffers from antisocial personality disorder cannot be used to support a finding that he has a mental abnormality as defined by Mental Hygiene Law § 10.03(i), when it is not accompanied by any other diagnosis of mental abnormality” … . …

Where [as here] the jury is asked to parse through multiple psychological diagnoses, which include ASPD, the jury should be instructed that ASPD cannot be the sole basis for its finding that someone suffers from a mental abnormality. This is to ensure that the jury’s finding conforms to the applicable law. Absent such an instruction, the jury may mistakenly find mental abnormality based solely on ASPD without the requisite finding of an additional diagnosis of a condition or disorder that, combined with ASPD, may predispose one to commit a sex offense. Matter of State of New York v David S., 2020 NY Slip Op 06876, First Dept 11-19-20

 

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