| Matter of State of New York v Adkison |
| 2013 NY Slip Op 05118 [108 AD3d 1050] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Respondent, vHerschel Adkison, Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Michael Connolly of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Steuben County (Marianne Furfure,A.J.), entered September 22, 2011 in a proceeding pursuant to Mental Hygiene Lawarticle 10. The order committed respondent to a secure treatment facility.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Respondent appeals from an order pursuant to Mental Hygiene Lawarticle 10 determining, following a jury trial, that he is a detained sex offender who has amental abnormality and determining, after a dispositional hearing, that he is a dangeroussex offender requiring confinement in a secure treatment facility. Respondent contendsthat Supreme Court abused its discretion in denying his application for a mistrial becausethe court improperly curtailed voir dire resulting in the impanelment of juror No. 7, whomade negative comments with respect to respondent during trial, and because thosecomments negatively influenced other jurors. We reject those contentions (see generally People v Matt, 78AD3d 1616, 1617 [2010], lv denied 15 NY3d 954 [2010]). We note at theoutset that, "[a]lthough this Mental Hygiene Law article 10 proceeding is civil in natureand primarily governed by CPLR article 41" (Matter of State of New York v Muench, 85 AD3d 1581,1581 [2011]; see Mental Hygiene Law § 10.07 [b]), the CriminalProcedure Law governs the procedure for voir dire and the discharge of a juror(see Mental Hygiene Law § 10.07 [b]; CPL 270.15, 270.35 [1]). CPL270.35 (1) provides in relevant part that the court must discharge a juror where he or she"has engaged in misconduct of a substantial nature, but not warranting the declaration ofa mistrial." Here, respondent's contention that the court erred in denying his motion for amistrial is based upon his assertion that he was denied a fair trial by the court's impropercurtailment of voir dire and determination to discharge juror No. 7 rather than grant amistrial, i.e., those acts governed by the Criminal Procedure Law. We therefore concludethat, in this case, CPL 280.10 (1) should likewise govern the standard to be used whendetermining whether a mistrial is warranted. That statute provides that the courtmust declare a mistrial if, "upon motion of the [respondent], . . . thereoccurs during the trial an error or legal defect in the proceedings, or conduct inside oroutside the courtroom, which is [*2]prejudicial to the[respondent] and deprives him [or her] of a fair trial" (id.).
With respect to respondent's contention concerning voir dire, we note that the courtis vested with "broad discretion to control and restrict the scope of the [voir dire]examination" (People v Boulware, 29 NY2d 135, 140 [1971], rearg denied29 NY2d 670 [1971], rearg denied 29 NY2d 749 [1971], cert denied405 US 995 [1972]). The record here establishes that the court did not abuse thatdiscretion, and thus the court did not err in denying respondent's motion for a mistrial onthat ground. Respondent's contention that a mistrial was warranted because the jurorsremaining after juror No. 7 was discharged were so tainted by the negative comments ofjuror No. 7 is also without merit (see People v Chatt, 77 AD3d 1285, 1286 [2010], lvdenied 17 NY3d 793 [2011]; People v Bassett, 55 AD3d 1434, 1435 [2008], lvdenied 11 NY3d 922 [2009]). The court questioned each remaining jurorindividually and all of those jurors unequivocally expressed that they could continue tobe fair and impartial. We conclude that the court's procedures were " 'sufficient to protect[respondent's] right to a fair trial' " (Bassett, 55 AD3d at 1435). Additionally, anyfailure on the part of the remaining jurors to "report [the negative statements of juror No.7] did not amount to substantial misconduct" (Chatt, 77 AD3d at 1286).
Respondent's further contention that he was denied due process and a fair trialbecause the court conducted its inquiry and subsequent discharge of juror No. 7 outsideof respondent's presence is without merit. Respondent had no right to be present whilethe court conducted an inquiry of juror No. 7 to determine whether that juror should bedischarged pursuant to CPL 270.35 (see People v Luchey, 221 AD2d 936, 936[1995], lv denied 87 NY2d 1021, reconsideration denied 88 NY2d 988[1996]).
Finally, we reject respondent's contention that petitioner failed to prove by clear andconvincing evidence that he had a mental abnormality and that he was a dangerous sexoffender requiring confinement. The expert testimony submitted at trial by petitionerconstituted clear and convincing evidence that respondent was a "detained sex offenderwho suffers from a mental abnormality" (Mental Hygiene Law § 10.07 [d]).Additionally, the jury's verdict that respondent suffers from a mental abnormality "isentitled to great deference based on the jury's opportunity to evaluate the weight andcredibility of conflicting expert testimony" (Matter of State of New York v Chrisman, 75 AD3d 1057,1058 [2010]). We conclude based upon the record that petitioner also proved by clearand convincing evidence that respondent was a dangerous sex offender requiringconfinement, and the court did not err in crediting petitioner's expert testimony overrespondent's expert testimony (see Matter of State of New York v Harland, 94 AD3d1558, 1559 [2012], lv denied 19 NY3d 810 [2012]). Present—Smith,J.P., Fahey, Carni, Valentino and Whalen, JJ.