| Matter of State of New York v Lester |
| 2012 NY Slip Op 03296 [94 AD3d 1492] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of the State of New York, Appellant, v RichardLester, Respondent. |
—[*1] Emmett J. Creahan, Director, Mental Hygiene Legal Service, Rochester (Lisa Paine ofcounsel), for respondent-respondent.
Appeal from an amended order of the Supreme Court, Wayne County (Thomas M. VanStrydonck, J.), entered September 28, 2010 in a proceeding pursuant to Mental Hygiene Lawarticle 10. The amended order directed the release of respondent from custody.
It is hereby ordered that the amended order so appealed from is unanimously reversed on thelaw without costs and a new trial is granted.
Memorandum: Petitioner appeals from an amended order pursuant to Mental Hygiene Lawarticle 10 releasing respondent from custody upon a jury verdict in his favor on the issue ofwhether certain kidnappings he attempted to commit in 1984 (1984 attempted kidnappings) were"sexually motivated" (see Mental Hygiene Law § 10.03 [f], [g] [4]; [p] [4]).Petitioner contends that Supreme Court erred in refusing to instruct the jury that it could considerevidence of kidnappings committed by respondent in 1980 on the issue of respondent's motiveand intent with respect to the 1984 attempted kidnappings. We agree.
Inasmuch as petitioner's burden in the proceeding was to establish by clear and convincingevidence that the 1984 attempted kidnappings were "sexually motivated" (see MentalHygiene Law § 10.03 [s]; § 10.07 [c], [d]), we conclude that the court should haveinstructed the jury that it could consider the evidence of the 1980 kidnappings on the issue ofrespondent's intent in committing the 1984 attempted kidnappings and whether those crimes were"sexually motivated" (see Matter ofState of New York v Shawn X., 69 AD3d 165, 172 [2009], lv denied 14 NY3d702 [2010]). We therefore reverse the amended order and grant a new trial.Present—Scudder, P.J., Smith, Carni and Sconiers, JJ.