| Matter of State of New York v Robert F. |
| 2014 NY Slip Op 00231 [113 AD3d 691] |
| January 15, 2014 |
| Appellate Division, Second Department |
| In the Matter of State of New York,Respondent, v Robert F., Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek,Patrick J. Walsh, and Jason Harrow of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law article 10 for the civil managementof Robert F., a sex offender allegedly requiring civil management, Robert F. appealsfrom (1) an order of the Supreme Court, Kings County (Garnett, J.), dated June 1, 2012,which, upon a finding, made after a jury trial, that he suffers from a mental abnormalityas defined in Mental Hygiene Law § 10.03 (i), and upon a determination, madeafter a dispositional hearing, that he is a dangerous sex offender requiring civilconfinement, in effect, granted the petition and directed that he be committed to a securetreatment facility for care, treatment, and control until such time as he no longer requiresconfinement, and (2) a resettled order of the same court dated June 11, 2012, granting thesame relief.
Ordered that the appeal from the order dated June 1, 2012, is dismissed, withoutcosts or disbursements, as that order was superseded by the resettled order dated June 11,2012; and it is further,
Ordered that the resettled order dated June 11, 2012, is affirmed, without costs ordisbursements.
The appellant, born in 1957, is a recidivist sex offender with multiple sexual offensesand related criminal convictions stretching back nearly 40 years. In May 2005, theappellant was sentenced to a five-year term of imprisonment on his latest conviction ofsexual abuse in the first degree. The instant proceeding was commenced in May 2009.After a trial, a jury found that the appellant suffers from a mental abnormality (seeMental Hygiene Law § 10.03 [i]).
The matter proceeded to a dispositional hearing without a jury. At that hearing, theappellant disclosed that the victim of a 1974 rape of which he was convicted had been astranger. Over the appellant's objection, the State was permitted to recall its expertwitness to testify by live video that she would have increased her assessment of theappellant's recidivism risk score by one [*2]point had shebeen aware of that fact concerning the 1974 rape when she performed her analysis.Following the hearing, the appellant was confined to a secure treatment facility.
The appellant does not challenge the jury's finding that he suffers from a mentalabnormality. Rather, he argues that the dispositional order should be vacated because theSupreme Court erred in permitting the State to recall its expert witness to offer additionaltestimony after the appellant presented his defense, and by admitting the expert testimonyby live video.
Contrary to the appellant's contention, the hearing court did not improvidentlyexercise its discretion in permitting the State to present limited additional testimony fromits expert at the dispositional hearing (see CPLR 4011; Feldsberg vNitschke, 49 NY2d 636, 643-644 [1980]; Bennett v Henry, 39 AD3d 575, 576 [2007]; Atlas Refrigeration-AirConditioning, Inc. v Lo Pinto, 33 AD3d 639, 640 [2006]; Kay Found. v S & F Towing Serv.of Staten Is., Inc., 31 AD3d 499, 501 [2006]; Frazier v Campbell, 246AD2d 509 [1998]).
Further, in the absence of an explicit prohibition, the trial court has the discretion toutilize live video testimony pursuant to its inherent power to employ innovativeprocedures where "necessary to carry into effect the powers and jurisdiction possessed byit" (Judiciary Law § 2-b [3]; see People v Wrotten, 14 NY3d 33, 37-38 [2009], certdenied 560 US 959 [2010]). The limited use of that power in the instant case was not an improvidentexercise of discretion. In addition, it did not violate any constitutional right of thedefendant (see People vBeltran, 110 AD3d 153, 161 [2013]), especially since the proceeding was civilin nature (see Matter of State ofNew York v Floyd Y., 22 NY3d 95 [2013]). Skelos, J.P., Lott, Cohen andHinds-Radix, JJ., concur.