| Matter of State of New York v Fox |
| 2010 NY Slip Op 09776 [79 AD3d 1782] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, v Erskine Fox, aPatient in the Custody of New York Office of Mental Health at Central New York PsychiatricCenter, Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Treasure of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Wayne County (John B. Nesbitt, J.), enteredSeptember 10, 2009 in a proceeding pursuant to Mental Hygiene Law article 10. The order, interalia, determined that respondent is a dangerous sex offender requiring confinement andcommitted respondent to 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 pursuant to Mental Hygiene Law article10, entered following a jury trial determining that he has a mental abnormality within themeaning of Mental Hygiene Law § 10.03 (i) and is a dangerous sex offender requiringconfinement in a secure treatment facility. Contrary to the contention of respondent, SupremeCourt properly allowed petitioner's expert to testify concerning hearsay statements regardinguncharged and unproven acts of sexual abuse committed by respondent. According torespondent, those statements failed to meet the requirements of the professional reliabilityexception to the hearsay rule. We reject that contention. It is well settled that an expert witnessmay "provide opinion evidence based on otherwise inadmissible hearsay, provided [that] it isdemonstrated to be the type of material commonly relied on in the profession" (Hinlicky v Dreyfuss, 6 NY3d 636,648 [2006]; see generally People v Sugden, 35 NY2d 453, 460 [1974]), and provided thatit does not constitute the sole or principal basis for the expert's opinion (see Anderson v Dainack, 39 AD3d1065, 1066-1067 [2007]; People vWlasiuk, 32 AD3d 674, 680-681 [2006], lv dismissed 7 NY3d 871 [2006]).However, "whether evidence may become admissible solely because of its use as a basis forexpert testimony remains an open question in New York" (Hinlicky, 6 NY3d at 648),inasmuch as there is a "distinction between the admissibility of an expert's opinion and theadmissibility of the information underlying it" (People v Goldstein, 6 NY3d 119, 126 [2005], cert denied547 US 1159 [2006]). If that distinction were not recognized, "a party might effectivelynullify the hearsay rule by making that party's [*2]expert a'conduit for hearsay' " (id.).
Here, petitioner's expert testified that he relied on documents specifically deemed reliable byMental Hygiene Law § 10.08, and thus we reject the contention of respondent thatpetitioner's expert was required to state on the record that the documents were deemed reliable inhis profession. In Matter of State of New York v Wilkes ([appeal No. 2], 77 AD3d 1451,1453 [2010]), we held that two of the petitioner's experts were properly allowed to testifyconcerning incidents for which the respondent was not convicted because "the court determinedthat [the testimony's] purpose was to explain the basis for the experts' opinions, not to establishthe truth of the hearsay material, and that any prejudice to respondent from the testimony wasoutweighed by its probative value in assisting the jury in understanding the basis for each expert'sopinion" (cf. Matter of Jamie R. vConsilvio, 17 AD3d 52, 60 [2005], affd on other grounds 6 NY3d 138 [2006];Wagman v Bradshaw, 292 AD2d 84 [2002]). We see no basis to distinguish this casefrom our decision in Wilkes.
Even assuming, arguendo, that the court erred in permitting petitioner's expert to testifyconcerning the underlying facts of the uncharged and unproven offenses, we conclude that anyerror is harmless. The expert testified that he relied primarily upon the three convictions informulating his opinion that respondent suffered from pedophilia.
Finally, we conclude that the court did not err in denying respondent's motion seeking topreclude petitioner from presenting any testimony based on actuarial risk assessment instrumentsat the dispositional hearing (see e.g.Matter of State of New York v Richard VV., 74 AD3d 1402, 1405 [2010]; Matter of State of New York v TimothyJJ., 70 AD3d 1138, 1144 [2010]). Respondent's challenges to such testimony, to theextent that they are preserved, go to the weight of the testimony rather than its admissibility(see e.g. People v Dailey, 260 AD2d 81, 82 [1999], lv denied 94 NY2d 821[1999]). Present—Scudder, P.J., Smith, Green, Pine and Gorski, JJ.