| Matter of State of New York v David J. |
| 2018 NY Slip Op 08717 [167 AD3d 1251] |
| December 20, 2018 |
| Appellate Division, Third Department |
[*1]
| In the Matter of State of New York,Respondent, v David J., Appellant. |
George J. Hoffman Jr., East Greenbush, for appellant.
Barbara D. Underwood, Attorney General, Albany (Jennifer L. Clark of counsel), forrespondent.
Garry, P.J. Appeal from an order of the Supreme Court (O'Shea, J.), entered June 16, 2016 inChemung County, which granted petitioner's application, in a proceeding pursuant to MentalHygiene Law article 10, to find respondent to be a dangerous sex offender and confined him to asecure treatment facility.
In 1990, respondent was convicted of rape in the first degree and was sentenced to a prisonterm of 12
We find that the jury verdict was supported by legally sufficient evidence. A dangerous sexoffender may be confined when he or she "suffer[s] from a mental abnormality involving such astrong predisposition to commit sex offenses, and such an inability to control behavior, that theperson is likely to be a danger to others and to commit sex offenses if not confined to a securetreatment facility" (Mental Hygiene Law § 10.03 [e]; see Matter of State of New York v DennisK., 27 NY3d 718, 726 [2016], cert denied 580 US &mdash, 137 S Ct 579[2016]; Matter of State of New York vDavid HH., 147 AD3d 1230, 1233-1234 [2017], lv denied 29 NY3d 913[2017]). It is the petitioner's burden to prove, by clear and convincing evidence, that therespondent has a mental abnormality (see Mental Hygiene Law § 10.07 [d]),which is defined as "a congenital or acquired condition, disease or disorder that affects theemotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her tothe commission of conduct constituting a sex offense and that results in that person havingserious difficulty in controlling such conduct" (Mental Hygiene Law § 10.03 [i]; see Matter of Christopher PP. v State ofNew York, 151 AD3d 1334, 1336 [2017], lv denied 30 NY3d 903 [2017]).
Petitioner presented the expert testimony and written report of Susan Cox, a licensedpsychologist with the Office of Mental Health, who had been engaged in the evaluation ofrespondent as part of the initial Mental Hygiene Law article 10 petition. As noted in theevaluation, respondent's criminal history includes convictions for a total of five sex offenses andone sexually-related arrest. At the age of 15, respondent was charged as a juvenile for entering aneighbor's home and stealing women's undergarments. At age 28, he pleaded guilty to sexualmisconduct for vaginally penetrating a woman against her will. Five days after his release for thatoffense, respondent vaginally raped an 84-year-old woman, and later pleaded guilty to sexualabuse in the first degree. While on parole for that offense, at the age of 34, respondent wasconvicted of unlawful imprisonment in the second degree for attempting to take the shoe off a10-year-old girl. At 37 years old, respondent committed the underlying offense, raping a41-year-old woman who was watching her young grandchildren in a public park in the daytime.At least six children observed the rape. According to the police report summarized in theevaluation, shortly after his arrest, respondent admitted to raping the woman and stated, "I needsome help for my psychiatric problems, and I can't think straight or control my emotions. . . and I just lost control when I [saw] the woman." Respondent thereafter pleadedguilty to rape in the first degree. However, following his incarceration upon this conviction,respondent has maintained his innocence and denies having committed these sexual offenses.During the interview conducted as part of the evaluation, respondent often blamed his mother forhis convictions, stating that she was able to influence the decisions of police and judges. Duringthe term of his confinement, respondent's disciplinary infractions included four tickets arisingfrom letters sent to female prison staff, in which he asked them to perform sexual acts and madeinappropriate comments about their feet. He has denied writing these letters.
At trial, Cox opined that respondent suffers from delusional disorder with persecutory andgrandiose theme with bizarre content, antisocial personality disorder, fetish disorder, sexualpreoccupation and hypersexuality. She explained that these conditions of psychopathy withsexual deviancy and sexual preoccupation are predictive of sexual recidivism in the community.Her interview with respondent revealed his continued sexual preoccupation, hypersexuality andinability to control his emotions and actions. Cox further noted the increasingly violent nature ofrespondent's sex offenses and his failure to engage in sex offender treatment while incarcerated.Based upon her evaluation, Cox concluded that respondent suffers from a mental abnormality(see Mental Hygiene Law § 10.03 [i]).
Petitioner retained a second licensed psychologist to conduct an independent evaluation,Stuart Kirschner, who also testified. Kirschner similarly diagnosed respondent with a fetish forwomen's feet and undergarments, psychotic disorder, schizophrenia, thinking impairment,antisocial personality disorder and unspecified paraphilic disorder. He further opined that there isno indication that respondent's sex drive will decrease despite his age and that the circumstancesof respondent's past sex offenses demonstrate his inability to control his behavior. In light of hisevaluation, Kirschner also concluded that respondent suffers from a mental abnormality withinthe meaning of Mental Hygiene Law § 10.03 (i). Respondent did not present experttestimony.
Contrary to respondent's assertion, the two expert opinions that he suffers from a mentalabnormality were not impermissibly based solely on a diagnosis of antisocial personalitydisorder. Each opinion was instead based upon respondent's combined diagnoses (see Matterof State of New York v Dennis K., 27 NY3d at 733; Matter of State of New York v Donald DD., 24 NY3d 174, 190[2014]; Matter of State of New York vRichard TT., 132 AD3d 72, 76-77 [2015], affd 27 NY3d 718 [2016], certdenied 580 US &mdash, 137 S Ct 836 [2017]). Kirschner opined that "it's the combination ofthe various disorders that . . . sets the stage for [respondent's] sexual re-offending."Cox similarly opined that the interaction of respondent's disorders, fetishes and hypersexualitymake it more "likely [that he would] re-offend." Upon this record, there was a valid line ofreasoning by which the jury could conclude that respondent suffers from a mental abnormality(see Mental Hygiene Law § 10.03 [i]; Matter of State of New York v Shannon S., 20 NY3d 99, 108[2012], cert denied 568 US 1216 [2013]; Matter of Christopher PP. v State of NewYork, 151 AD3d at 1337-1338; Matter of State of New York v Kenneth BB., 93 AD3d 900, 901[2012]). Accordingly, we find no basis upon which to disturb the jury verdict.
Next, respondent contends that he was denied the effective assistance of counsel on the basisthat his first attorney's involvement in his underlying criminal action as the assigned AssistantDistrict Attorney presented a conflict of interest. Initially, "while Mental Hygiene Law article 10proceedings are civil rather than criminal, and . . . ineffective assistance of counselmay only be considered in civil litigation if extraordinary circumstances are present, theindefinite and involuntary nature of confinement that may result in this type of proceedingconstitutes such an extraordinary circumstance" (Matter of State of New York v Timothy BB., 113 AD3d 18, 23[2013], appeal dismissed and lv denied 23 NY3d 941 [2014]; see Matter of State of New York vCampany, 77 AD3d 92, 98 [2010], lv denied 15 NY3d 713 [2010]). Where, ashere, an ineffective assistance of counsel claim is based upon an alleged conflict of interest, thecourt must first determine whether such a conflict of interest existed (see People v Konstantinides, 14 NY3d1, 10 [2009]; People v Abar, 99 NY2d 406, 409 [2003]). The burden is on the personclaiming such conflict of interest to demonstrate that his or her defense was in fact affected bythe conflict of interest or that the conflict "operated on the representation" (People vOrtiz, 76 NY2d 652, 657 [1990] [internal quotation marks and citation omitted]; see People v Serrano, 99 AD3d1105, 1107 [2012], lv denied 20 NY3d 1014 [2013]).
We find that the first attorney's prior employment with the District Attorney's officepresented no conflict of interest. The role of an MHLS attorney within the context of MentalHygiene Law article 10 proceedings is akin to that of a Public Defender. In this regard, "[t]hedanger that previously obtained confidential information will become available to the prosecutionsimply does not exist when a District Attorney becomes a Public Defender" (People vSawyer, 83 AD2d 205, 208 [1981], affd 57 NY2d 12 [1982], cert denied 459US 1178 [1983]; see People v Clevenger, 189 Misc 2d 80, 81 [App Term, 2d Dept2001]). Put another way, it is established that there is an inherent conflict of interest where "adefense attorney who initially represented a defendant and during the pendency of the criminalproceeding then joined the District Attorney's office" (People v Abar, 99 NY2d at 410).However, the concerns that arise in that scenario are not present here; there is no indication in therecord that the first attorney "obtained any information about [respondent] through [his] prioremployment as an [A]ssistant [D]istrict [A]ttorney that compromised [his] representation of him"as counsel assigned from MHLS (People v Abar, 99 NY2d at 410; compare People vShinkle, 51 NY2d 417, 420 [1980]).[FN1]
To the extent that respondent contends that the first attorney's representation neverthelesspresented an appearance of impropriety, we find that the substitution of the second attorney fromMHLS properly remedied any potential concerns. Where, as here, there is an "absence of actualprejudice or a substantial risk thereof, the appearance of impropriety alone is not sufficient torequire disqualification" (Matter ofStephanie X., 6 AD3d 778, 780 [2004]; see Matter of Tina X. v John X., 138 AD3d 1258, 1261 [2016]).Even where an attorney is disqualified from representation, such "does not require thedisqualification of all other attorneys employed in the same public sector" (Matter ofStephanie X., 6 AD3d at 780). Here, it also bears noting that respondent consented on therecord to the second attorney's representation. Accordingly, we find no error in Supreme Court'ssubstitution of the second attorney from MHLS.
Upon review, we find that the second attorney provided "meaningful representation," as hevigorously advocated for respondent at trial, filed various motions, engaged incross-examination, and made appropriate objections (People v Baldi, 54 NY2d 137, 147[1981]; see generally People vGarrow, 147 AD3d 1160, 1162 [2017]).[FN2] Likewise, we find no merit in respondent'scontention that his request for substitute counsel pursuant to County Law article 18-B wasimproperly denied (see County Law § 722). In this regard, Mental HygieneLaw § 10.06 (c) provides that "[t]he court shall appoint [MHLS] if possible."Finally, respondent's contention that Supreme Court erred in declining to permit him to proceedpro se is not preserved for our review. Respondent withdrew his request prior to the appointmentof the second attorney and did not renew it thereafter.
McCarthy, Egan Jr., Devine and Clark, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1:We further note that the firstattorney promptly informed respondent and Supreme Court of his limited participation as anAssistant District Attorney in respondent's underlying 1990 criminal conviction.
Footnote 2:At oral argument, respondentasserted that the second attorney's failure to obtain an expert who could provide him a favorablepsychological report constituted ineffective assistance. However, this was the first time that thisargument was presented, and he waived any potential issue in this regard "by [his] failure to briefit on appeal" (People v Lindahl, 33AD3d 1125, 1126 n [2006]).