| Matter of State of New York v Pierce |
| 2010 NY Slip Op 09773 [79 AD3d 1779] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, v Michael Pierce,Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Treasure of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Lewis County (Joseph D. McGuire, J.), enteredJanuary 14, 2009 in a proceeding pursuant to Mental Hygiene Law article 10. The order, amongother things, adjudged that respondent is a dangerous sex offender requiring confinement, andcommitted respondent to the care and custody of the Commissioner of Mental Health forplacement in a secure treatment facility.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent appeals from an order determining that he is a dangerous sexoffender requiring confinement pursuant to Mental Hygiene Law article 10. The jury found thathe suffers from a mental abnormality that predisposes him to commit sex offenses and makes itunlikely that he will be able to control his behavior. We reject the contention of respondent thatpetitioner failed to prove by clear and convincing evidence that he suffers from a mentalabnormality within the meaning of Mental Hygiene Law § 10.03 (i). Rather, we concludethat the evidence of respondent's past convictions presented by petitioner established thatrespondent suffers from pedophilia, as that term is defined in the American PsychiatricAssociation's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). According toDSM-IV, respondent falls within the definition of a pedophile if he, over a period of six months,has experienced recurrent and intense sexually arousing fantasies, sexual urges or behaviorsinvolving children under the age of 13; if the fantasies, sexual urges or behaviors cause clinicallysignificant distress or impairment in social, occupational or other important areas of functioning;and if he is at least 16 years old and five years older than his victims (see Matter of State of New York v ShawnX., 69 AD3d 165, 170 n 3 [2009], lv denied 14 NY3d 702 [2010]). Asrespondent correctly contends, one of the experts for petitioner testified during the jury phase ofthe trial that pedophilia occurs with a "prepubescent child, meaning someone [13] years old oryounger." According to respondent, there was no evidence that the 13-year-old victim who wasthe subject of respondent's 1980 conviction was prepubescent, and thus petitioner failed toestablish that respondent was a pedophile. Contrary to respondent's contention, however, the factthat the expert was unable to state definitively that the 13 year old was prepubescent does notcompel the conclusion that the jury's [*2]determination was notsupported by a fair interpretation of the evidence (see id. at 168-169; Matter of Daniel XX., 53 AD3d819, 820 [2008]).
Respondent further contends that Supreme Court erred in allowing petitioner's two experts totestify concerning their opinions that he was a pedophile because those opinions were based ondocuments that were not shown to be reliable. Respondent failed to preserve that contention forour review, however, because in his motion in limine he did not seek to preclude the expertsfrom testifying with respect to their opinions on that ground. Rather, respondent agreed that theexperts could base their opinions on hearsay contained in the documentary evidence, and hesought only to preclude petitioner from disclosing to the jury any information not admitted inevidence. In any event, we note that most of the documents relied upon by the experts in formingtheir opinions were documents of the kind found to be reliable in People v Mingo (12 NY3d 563[2009]), i.e., parole board documents, presentence reports, accusatory instruments, certificates ofconviction, police reports and respondent's criminal records. Those documents supported thediagnoses of pedophilia, even without consideration of the remaining documents not of the kindset forth in Mingo, and thus any error in the admission of the experts' opinions to theextent that they were based on such remaining documents is harmless.
In addition, respondent contends that he was denied his right to effective assistance ofcounsel based on his attorney's failure to attend his interviews with petitioner's two experts (see generally Matter of State of New Yorkv Campany, 77 AD3d 92 [2010], lv denied 15 NY3d 713 [2010]). We note thatthe record establishes that his interview with one of the two experts occurred before the petitionwas filed, and thus respondent's right to counsel had not yet attached (see MentalHygiene Law § 10.08 [g]; Matterof State of New York v Bernard D., 61 AD3d 567 [2009]). Respondent's contentiontherefore is lacking in merit insofar as it concerns that expert. Respondent's contention withrespect to the second of the two experts concerns matters that are outside the record on appeal,and we therefore are unable to review that part of the contention. Moreover, in view of our priorconclusion that the experts' opinions were supported by documents of the kind found to bereliable in People v Mingo (12NY3d 563 [2009]), we further conclude that the failure of respondent's attorney to object tothe admission of the opinions to the extent that they were based on documents that were not ofthe kind found to be reliable in Mingo (12 NY3d 563 [2009]) did not deprive respondentof meaningful assistance of counsel.
Respondent has failed to preserve for our review his contention that the court erred inadvising the jury during its preliminary instructions that, if the jury found that respondentsuffered from a mental abnormality, the court would then determine whether he would bereleased on strict and intensive supervision or confined in a secured treatment facility. In anyevent, we note that the court's jury instruction is consistent with PJI 8:8.3.
Respondent next contends that the court erred in denying his motion to require employees ofthe Office of Mental Health (OMH) to wear civilian shirts while in the courtroom. We note,however, that the jury necessarily was aware that respondent had been convicted of sex offensesand that the jury was aware that its task was to determine whether respondent suffers from amental abnormality. We therefore conclude that it was not inherently prejudicial to defendant thatOMH employees wore uniforms while in the courtroom (see generally Holbrook v Flynn,475 US 560, 567-569 [1986]).
We reject respondent's contention that petitioner failed to prove by the requisite clear andconvincing evidence that he is a dangerous sex offender requiring confinement, as determined bythe court following the dispositional phase of the proceedings. "Mindful that 'Supreme Court wasin the best position to evaluate the weight and credibility of the conflicting psychiatric testimonypresented' . . . , we defer to the court's decision to credit [the testimony ofpetitioner's] expert" (Matter of State of[*3]New York v Craig T., 77 AD3d 1062, 1064 [2010];see Matter of State of New York vTimothy JJ., 70 AD3d 1138, 1144-1145 [2010]).
Finally, respondent contends that he was denied his right to equal protection of the lawbecause respondents in proceedings pursuant to Mental Hygiene Law article 9 are entitled to ajury trial throughout the proceedings, while respondents in article 10 proceedings are not entitledto a jury trial at the dispositional phase of the proceedings. Respondent failed to preserve thatcontention for our review and, in any event, it lacks merit. Respondent has failed to show that hewas similarly situated to respondents in article 9 proceedings, or that the difference in thelegislation between article 9 and article 10 was "based on impermissible considerations such asrace, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or badfaith intent to injure a person" (BowerAssoc. v Town of Pleasant Val., 2 NY3d 617, 631 [2004]; see generally Matter of303 W. 42nd St. Corp. v Klein, 46 NY2d 686, 693 [1979]). Present—Scudder, P.J.,Smith, Green, Pine and Gorski, JJ.