| Matter of State of New York v Andrew O. |
| 2009 NY Slip Op 08898 [68 AD3d 1161] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of State of New York, Respondent, v Andrew O.,Appellant. |
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Peters, J.P. Appeal from an order of the Supreme Court (Seibert, J.), entered June 23, 2008in Saratoga County, which, in a proceeding pursuant to Mental Hygiene Law article 10, foundrespondent to be a dangerous sex offender and confined him to a secure treatment facility.
In 1986, respondent pleaded guilty to one count of sexual abuse in the second degree arisingout of an incident involving his then five-year-old adopted daughter. He was sentenced to threeyears of probation and ordered to vacate the family residence and participate in therapy. Overone year later, respondent was permitted to return to his residence. Within just one month, anddespite being on probation, respondent again began sexually abusing the child. He was laterarrested and, in June 1988, convicted upon his plea of guilty of one count of sexual abuse in thefirst degree and sentenced to a prison term of 2⅓ to 7 years. In August 1992, afterserving four years in prison, respondent was released on parole. A parole violation warrant wasissued in March 1993, charging respondent with violating the conditions of his parole by, amongother things, establishing a romantic relationship with a woman who had a two-year-olddaughter, failing to notify his parole officer of this fact and providing false information to theparole officer regarding the relationship. Following a hearing, respondent's parole was revokedand he was reincarcerated until May 1994. Approximately one year after his release, respondentmoved in with the same woman with whom he had established a relationship while on parole, aswell as [*2]her minor daughter. During the summer of 1998,respondent sexually abused the daughter. Following a written statement made to police, hepleaded guilty to one count of sexual abuse in the first degree in full satisfaction of a multicountindictment and was sentenced to seven years in prison to be followed by five years of postreleasesupervision.
In August 2007, petitioner filed a petition seeking an order authorizing respondent's civilmanagement pursuant to Mental Hygiene Law article 10. The proceeding was thereafter removedto Saratoga County (see Mental Hygiene Law § 10.06 [b]) and, following ahearing, Supreme Court (Ferradino, J.) found that there was probable cause to believe thatrespondent was a sex offender requiring civil management (see Mental Hygiene Law§ 10.06 [g], [k]; § 10.03 [q]) and ordered that he be transferred to the custody of theOffice of Mental Health. A jury trial was subsequently held, at the conclusion of which the jurydetermined that respondent suffers from a "mental abnormality" as defined under MentalHygiene Law article 10 (Mental Hygiene Law §§ 10.07, 10.03 [i]). Following abench trial, Supreme Court (Seibert, J.) found respondent to be a dangerous sex offenderrequiring confinement and committed him to a secure treatment facility (see MentalHygiene Law § 10.07 [f]; § 10.03 [e]). He now appeals.
Respondent first contends that the jury's determination that he suffers from a mentalabnormality is against the weight of the evidence. Pursuant to Mental Hygiene Law article 10, a"mental abnormality" is defined as "a congenital or acquired condition, disease or disorder thataffects the emotional, cognitive, or volitional capacity of a person in a manner that predisposeshim or her to the commission of conduct constituting a sex offense and that results in that personhaving serious difficulty in controlling such conduct" (Mental Hygiene Law § 10.03 [i];see State of N.Y. ex rel. Harkavy vConsilvio, 8 NY3d 645, 651 n 2 [2007]).
At trial, petitioner presented the expert testimony of Christine Rackley, a psychiatrist andmember of the Office of Mental Health's case review team, and Roger Harris, a forensicpsychologist. Based upon their independent interviews with respondent and review of his casesummary, parole reports, and prison, criminal and sex offender records, both Rackley and Harrisconcluded that respondent suffers from a "mental abnormality" as defined under Mental HygieneLaw article 10. Both also stated that, in making such a determination, they do not rely upon theresults of any actuarial risk assessments (hereinafter ARAs), such as the STATIC-99,[FN1] since the professional community uniformly views the STATIC-99 and other ARAs as havinglittle, if any, role in determining whether an individual suffers from a mental abnormality.Rather, according to both Rackley and Harris, the professional community examines theoffender's past behavior.
In that regard, Rackley explained that one's ability to control his or her behavior is generallymeasured by how such person responds and adapts after suffering sanctions as a result of his orher conduct. She found that, given that respondent has sexually reoffended twice since his initial1986 conviction, his inability to abide by parole conditions and discharge from a sex offendertreatment program while incarcerated, respondent has a serious difficulty controlling hispedophile predilections. She also noted that respondent externalized the blame for his offenses[*3]and minimized the severity of his conduct—claimingthat the children's mothers made him feel inadequate and deprived him of sex, that he had askedthe victims if it was okay for him to touch them and, in one situation, told the victim to tell hermother if he did it again—conduct which further evinced his inability to control his sexualimpulses.
Harris testified that respondent suffers from both pedophilia and antisocial personalitydisorder,[FN2] and that his conduct has repeatedly demonstrated that his sexual arousal from prepubescentfemales clearly affects his cognition and ability to control his behavior. Harris stated that, inspite of the repercussions for sexually reoffending, respondent was convicted of multiple sexoffenses, violated probation and parole, failed to succeed in a sex offender treatment programand indicated to parole officers that he would not abide with conditions—specificallystating that he would "live [his] life the way [he] want[s] to" and would violate "if they houndthe s. . . out of [him] again." Like Rackley, Harris opined that respondentrepeatedly deflected the responsibility for his conduct onto the mothers of the victims, outsideinfluences and the victims themselves and rationalized his behavior despite his recognition thathis conduct was wrong. Harris also found it highly significant that, after respondent returnedfollowing his removal from his home and family, he could not prevent himself from sexuallyreoffending against his adopted daughter, even going to the extreme measures of slipping thelatch on her door (which respondent's then wife installed in order to prevent respondent's access)on multiple occasions in order to gain access to her, and abusing her on other occasions despitethe presence of an adult babysitter in the house. Indeed, even after serving four years in prison,respondent continued to sexually reoffend.
Respondent presented the expert testimony of Daniel Kriegman, a licensed psychologist withextensive experience in treating and diagnosing sex offenders in Massachusetts. While licensedin Massachusetts, Kriegman was not licensed in New York, had testified solely for the defensefor over a decade, and had never testified in a Mental Hygiene Law article 10 proceeding in NewYork. Although he agreed that respondent met the criteria for a diagnosis of pedophilia,Kriegman opined that there is no evidence that respondent is currently predisposed to commit asex offense. Contrary to the testimony of petitioner's experts, Kriegman testified that a person'spredisposition is best determined through the use of ARAs such as the STATIC-99. Kriegmanscored respondent as a 3 on the STATIC-99, indicating a moderate to low risk of reconviction,and classified him as an "incest offender" because he lived in a family unit with each of hisvictims. Given these findings and respondent's age, Kriegman found that statistically there wasonly a five percent rate of recidivism. Kriegman acknowledged that respondent denied andminimized his conduct, was removed from sex offender treatment and told the probation officerthat he would not abide by conditions, yet opined that the likelihood of reoffense was notaffected by these facts. He ultimately concluded that respondent does not suffer from a mentalabnormality as that term is defined under Mental Hygiene Law article 10.
While respondent argues that Kriegman's opinion should have been accorded more weightthan those of Harris and Rackley, "[t]he trier of fact is in the best position to evaluate the [*4]weight and credibility of conflicting expert medical and psychiatrictestimony" (Matter of State of NewYork v Donald N., 63 AD3d 1391, 1394 [2009]; see Matter of George L., 85NY2d 295, 305 [1995]; Matter of State of New York v Shawn X., 69 AD3d 165, 168-169 [2009]). To that end, we find it significant that,during cross-examination, Kriegman acknowledged that his Mental Hygiene Law article 10evaluation report, which formed the basis of his opinion and which he had edited 30 to 40 times,contained numerous errors and omissions. For example, such report incorrectly stated the year inwhich respondent sexually abused his girlfriend's daughter and the length of time that respondentwas removed from his residence after he first offended against his adopted daughter. Kriegmanadmitted that, had he known that respondent was actually removed from his residence for overone year and had been home for only a month before he reoffended, it would have beensignificant in relation to respondent's ability to control his urges. Moreover, Kriegman's reportfailed to contain any mention of the fact that respondent slipped the lock on his daughter's doorin order to gain access to her. Not insignificantly, Kriegman was also confronted with his experttestimony in a prior case wherein he opined that "when offenders don't learn from more than ayear in prison, I consider that a sign of persistence . . . [and that] they clearlyhaven't learned anything." Thus, upon our review of the record as a whole, and accordingdeference to the jury's credibility determinations, we find no basis upon which to disturb itsdetermination that petitioner proved, by clear and convincing evidence, that respondent suffersfrom a mental abnormality.
Respondent next asserts that he was deprived of a fair trial due to Supreme Court's erroneousevidentiary rulings and misconduct on the part of petitioner's counsel. Initially, we agree thatcounsel's inquiry of Kriegman on cross-examination regarding Yoism, a religion he had founded,was improper (cf. People v Wood, 66 NY2d 374, 378 [1985]). While we fully join in thedissent's recognition that interjection of a party's religious beliefs or observances has no place ineither a criminal or civil trial, we cannot agree with its conclusion that a new trial is warranted inthis case. Although petitioner's counsel briefly questioned Kriegman regarding his founding ofYoism and its beliefs, the balance of counsel's extensive cross-examination, as previouslydescribed, severely undermined Kriegman's credibility as well as the factual basis for his opinionthat respondent suffered a mental abnormality. In light of this, we conclude that theobjectionable questioning regarding Yoism, within the context of the entire trial, did notsubstantially influence the jury's verdict (see Biello v Albany Mem. Hosp., 49 AD3d 1036, 1038 [2008];Price v New York City Hous. Auth., 244 AD2d 186, 186 [1997], affd 92 NY2d553 [1998]). With respect to petitioner's summation, although certain comments made bycounsel were improper, Supreme Court sustained respondent's objections thereto and providedlimiting instructions to the jury, thus mitigating any harm to respondent (see Hitchcock vBest, 247 AD2d 769, 769 [1998]). Further, the challenged remarks represented only a smallportion of counsel's lengthy summation and were not sufficiently egregious, either alone or in theaggregate, to "permeate[ ] the trial and create[ ] a climate of hostility that effectively destroyed[respondent's] ability to obtain a fair trial" (DiMichel v South Buffalo Ry. Co., 80 NY2d184, 198 [1992]; see Hitchcock v Best, 247 AD2d at 769; Rohring v City of NiagaraFalls, 192 AD2d 228, 230-231 [1993], affd 84 NY2d 60 [1994]; compareBerkowitz v Marriott Corp., 163 AD2d 52, 53-54 [1990]).
Addressing respondent's claims of evidentiary error, we first find that his records from theDivision of Criminal Justice Services and the Board of Examiners of Sex Offenders wereproperly admitted as certified business records (see CPLR 4518 [c]). Next, inasmuch asrespondent stipulated to the admission of his sex offender treatment records, he cannot nowargue that Rackley should not have been permitted to describe their contents for purposes of[*5]explaining the basis of her opinion. Lastly, Supreme Courtdid not err in permitting Rackley to communicate the contents of a sworn statement made by a14-year-old girl regarding an alleged sexual incident involving respondent. Rackley's hearsaytestimony in this regard was "for the limited purpose of informing the jury of the basis of [her]opinion and not for the truth of the matters related" (O'Brien v Mbugua, 49 AD3d 937, 938 [2008] [internal quotationmarks and citation omitted]), and her expert opinion, although partly based upon thisout-of-court statement, was not rendered inadmissible since this 14-year-old girl wassubsequently called as a witness and cross-examined regarding that very incident and her swornstatement (see Hambsch v New York City Tr. Auth., 63 NY2d 723, 726 [1984];People v Sugden, 35 NY2d 453, 461 [1974]; Brown v County of Albany, 271AD2d 819, 820 [2000], lv denied 95 NY2d 767 [2000]).[FN3]Contrary to respondent's assertions, the fact that he was never criminally charged with conductconcerning this 14-year-old neither renders the testimony unduly prejudicial nor any lessrelevant to the issues to be determined at trial (see Matter of State of New York v ShawnX., 69 AD3d at 171-172; Matter of State of NewYork v C.B., 23 Misc 3d 1130[A], 2009 NY Slip Op 51010[U], *3 [2009]).
Turning to the dispositional phase of the trial, respondent contends that petitioner failed toprove by clear and convincing evidence that he is a "dangerous sex offender requiringconfinement." Specifically, he asserts that his expert witness was most credible and that, basedupon his STATIC-99 score and the nature of his pedophilia, imposition of a regimen of strict andintensive supervision and treatment (hereinafter SIST) is a more appropriate disposition. UnderMental Hygiene Law article 10, a "dangerous sex offender requiring confinement" is defined as"a person who is . . . suffering from a mental abnormality involving such a strongpredisposition to commit sex offenses, and such an inability to control behavior, that the personis likely to be a danger to others and to commit sex offenses if not confined to a secure treatmentfacility" (Mental Hygiene Law § 10.03 [e]; see Matter of State of New York v DonaldN., 63 AD3d at 1393).[FN4]
At the bench trial, Supreme Court heard testimony from the same three experts whopresented testimony at the jury trial. Both Rackley and Harris opined that, based upon theirinitial evaluation and the testimony adduced during the jury trial, respondent is a dangerous sexoffender requiring confinement. Rackley explained that sex offenders who take responsibility fortheir behavior and accept their disorder have a much better ability to control their sexual urgesthan those, like respondent, who do not. Rackley noted that respondent has a strong compulsionto act on his pedophilic urges as evinced by the fact that he managed to undo the lock on thebedroom door of one of his victims in order to gain access to her and reoffended time and time[*6]again, despite significant repercussions such as hisincarceration, loss of parole and the dissipation of his first marriage. She further opined that,although respondent's current term of five years of postrelease supervision would typically helpmitigate an offender's potential sexually offending behavior in the future, respondent's explicitstatements that he would not let parole control his life, would not abide by their rules, will "live[his] life the way [he] want[s] to" and would violate "if they hound the s. . . out of[him] again" indicate that he is going to be extremely difficult to supervise and that thecommunity is going to remain at risk.
For many of the same reasons, Harris agreed that respondent is a dangerous sex offender anda "poor candidate" for SIST. Harris also disagreed that respondent is an "incest offender" who,based on his age, is statistically unlikely to reoffend. He explained that an incest offendertypically offends within the confines of one family unit, thus explaining their low rate ofrecidivism. According to Harris, respondent is in a different category, instead traveling fromfamily to family looking for vulnerable women with young children who he then sexuallyassaulted. He also expressed serious concerns over respondent's "grooming" of thethen-14-year-old female, because she was both outside the family and age group of the victimsagainst whom he previously offended.
To the contrary, Kriegman opined that respondent could reside safely in the communityunder a regimen of SIST. As he had at the jury trial, Kriegman testified that respondent is anincest offender who offends only against children in his family and, thus, found it "impossible toimagine" a scenario under which respondent could recidivate while released under SIST.Recognizing these divergent opinions, we again accord deference to the factual determinationsof the trier of fact due to its superior ability to evaluate the weight and credibility of thepsychiatric testimony (see Matter of George L., 85 NY2d at 305; Matter of State ofNew York v Donald N., 63 AD3d at 1394). Given the compelling testimony that respondentfails to appreciate that he has a problem, his pattern of offending and reoffending, hisdetermination to overcome access obstacles, and his acknowledged intent to act as he pleasesand violate the conditions of his parole, we agree that respondent suffers from a mentalabnormality manifested by a strong disposition to commit sexual offenses and that his inabilityto contain his behavior presents an unacceptable risk of danger to the community (seeMental Hygiene Law § 10.03 [e]; Matter of State of New York v Donald N., 63AD3d at 1394).
Respondent's remaining contentions, to the extent not specifically addressed herein, havebeen fully reviewed and found to be unavailing.
Spain, Kane and Stein, JJ., concur.
Rose, J. (dissenting). I respectfully dissent. Despite repeated objections from respondent'scounsel, Supreme Court allowed petitioner's counsel to extensively question psychologist DanielKriegman regarding his religious beliefs and affiliation with a particular religion. Counsel asked,among other things, whether Kriegman's religion is an on-line religion, whether he had foundedit and whether any sports stars were considered to be saints, thereby emphasizing its differencesfrom the religions with which the jurors would likely have been familiar. Even though thisquestioning was patently irrelevant to any issue in the proceeding, petitioner's counsel cited it asan important part of Kriegman's life experience and repeatedly stressed that it played a role in hisprofessional [*7]opinions. Such questioning can only be viewedas an improper attempt to challenge Kriegman's credibility based upon his religious beliefs andsuch a tactic has no place in either a civil or a criminal trial (see People v Wood, 66NY2d 374, 378 [1985]; Toomey v Farley, 2 NY2d 71, 82 [1956]; People v Caba, 66 AD3d 1121,1123 [2009]; Giuamara v O'Donnell, 96 AD2d 1049, 1051 [1983]; Saunders vChamplain Bus Corp., 263 App Div 683, 684 [1942]; Bowen v Mahoney CoalCorp., 256 App Div 485, 485-486 [1939]). In addition, because Kriegman's testimony wascentral to respondent's defense to the grounds for civil confinement presented by petitioner, Icannot agree with the majority that this error could not have substantially influenced the jury'sverdict. Accordingly, I would reverse Supreme Court's order and remit the matter for a new jurytrial.
Ordered that the order is affirmed, without costs.
Footnote 1: The STATIC-99 is made up of10 "yes or no" questions based upon specific characteristics of an individual's underlying sexoffenses. It is designed to measure an individual's risk of being convicted of a future sex offensebased on empirical data gathered from a large group of sex offenders.
Footnote 2: Harris explained that antisocialpersonality disorder is a condition where individuals evince a pattern of behavior establishingtheir disregard for society's rules, laws and/or other people and is often indicated by impulsivity,lying and manipulation.
Footnote 3: When called as a witness, thegirl testified that she did not recall anything in her statement other than the fact that respondentasked her whether she "played with [her]self." As a result, Supreme Court thereafter limited theexperts' use of the sworn statement to those very facts.
Footnote 4: If a court finds that a respondentis not a dangerous sex offender requiring confinement, "then the court shall make a finding ofdisposition that the respondent is a sex offender requiring [SIST], and the respondent shall besubject to a regimen of [SIST] in accordance with [Mental Hygiene Law § 10.11]"(Mental Hygiene Law § 10.07 [f]).