| Matter of State of New York v Muench |
| 2009 NY Slip Op 09762 [68 AD3d 1677] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of the State of New York, Respondent, v KarlMuench, an Inmate in the Custody of New York State Department of Correctional Services,Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Treasure of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Oneida County (Anthony F. Shaheen, J.),entered May 8, 2008 in a proceeding pursuant to Mental Hygiene Law article 10. The ordercommitted respondent to a secure treatment facility designated by the Commissioner of MentalHealth based upon a jury finding that respondent is a detained sex offender with a mentalabnormality that, inter alia, predisposes him to commit further sex offenses.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toSupreme Court, Oneida County, for a reconstruction hearing in accordance with the followingmemorandum: Respondent appeals from an order pursuant to Mental Hygiene Law article 10committing him to a secure treatment facility designated by the Commissioner of Mental Healthbased upon a jury finding that he is a detained sex offender with a mental abnormality that, interalia, predisposes him to commit further sex offenses. We agree with respondent that hischallenge to the alleged discharge of prospective jurors outside the presence of the trial judgeimplicates his fundamental right to a jury trial (see generally People v Toliver, 89 NY2d843, 844-845 [1996]), and that preservation therefore is not required because his challengeconcerns a potential " 'mode of proceedings' " error (People v Kelly, 5 NY3d 116, 119 [2005]). The record before us,however, is insufficient to enable us to review that challenge. Although the record containsreferences to jury questionnaires, it does not include the jury questionnaires at issue. The recordalso fails to establish whether any prospective jurors were in fact discharged pursuant to theallegedly improper procedure and, if so, who authorized the procedure and who actuallydischarged them. Consequently, we are unable to determine whether Supreme Court erred in "'relinquish[ing] control over the proceedings' " by permitting the allegedly improper procedure(People v Bosa, 60 AD3d 571,573 [2009], lv denied 12 NY3d 923 [2009], quoting Toliver, 89 NY2d at 844), orwhether the "procedure was an effective screening device and a proper exercise of discretion" bythe court (People v Boozer, 298 AD2d 261 [2002], lv denied 99 NY2d 555[2002]; see People v McGhee, 4AD3d 485, 486 [2004], lv denied 2 NY3d 803 [2004]). We therefore hold the case,reserve decision and remit the matter to Supreme Court for a reconstruction hearing to determinethe contents of the jury questionnaires, whether any prospective jurors were discharged pursuantto the allegedly improper procedure and, if so, who authorized the procedure and dischargedthem. Present—Martoche, J.P., Smith, Fahey, Carni and Pine, JJ.