| Matter of State of New York v Todd L. |
| 2014 NY Slip Op 04205 [118 AD3d 805] |
| June 11, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of State of New York,Respondent, v Todd L., Appellant. |
Mental Hygiene Legal Service, Mineola, N.Y. (Timothy M. Riselvato and Dennis B.Feld of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu andClaude S. Platton of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law article 10 for the civil managementof Todd L., an alleged sex offender requiring civil management, Todd L. appeals from anorder of the Supreme Court, Queens County (Aloise, J.), entered April 17, 2013, which,upon findings, made after a jury trial, that he committed a sexually motivated designatedfelony offense and that he was a detained sex offender suffering from a mentalabnormality as defined in Mental Hygiene Law § 10.03 (i), and adetermination, made after a dispositional hearing, that he currently is a dangerous sexoffender requiring civil confinement, granted the petition and directed that he becommitted to a secure treatment facility for care, treatment, and control until such time ashe no longer requires confinement.
Ordered that the order is reversed, on the law and in the exercise of discretion, thefinding that the appellant committed a sexually motivated designated felony offense isvacated, and the matter is remitted to the Supreme Court, Queens County, for a new trialon the issue of whether the appellant committed a sexually motivated felony offense, and,if necessary, a new dispositional hearing.
The appellant was incarcerated pursuant to a sentence imposed upon his convictionof, inter alia, promoting prostitution in the second degree (Penal Law§ 230.30 [1]), promoting prostitution in the third degree (Penal Law§ 230.25), and assault in the second degree (Penal Law§ 120.05 [2]). Shortly before his release from prison, the State of New Yorkfiled a petition pursuant to Mental Hygiene Law article 10, also known as the SexOffender Management and Treatment Act, seeking the appellant's civil management(see Mental Hygiene Law § 10.06 [a]). The State alleged, inter alia,that the appellant's convictions of promoting prostitution in the second degree and assaultin the second degree qualified him as a sex offender in that he was convicted of twodesignated felonies that were sexually motivated and committed prior to the effectivedate of Mental Hygiene Law article 10 (see Mental Hygiene Law§ 10.03 [f], [p], [s]).
A jury trial was conducted to determine whether the appellant was a detained sexoffender who suffered from a mental abnormality (see Mental Hygiene Law§ 10.07 [a]). A crime [*2]is a "sex offense"under Mental Hygiene Law article 10 if it is listed as a "designated felony" under MentalHygiene Law § 10.03 (f), and was "sexually motivated" (Mental HygieneLaw § 10.03 [p]). A "sexually motivated" felony "means that the act or actsconstituting a designated felony were committed in whole or in substantial part for thepurpose of direct sexual gratification of the actor" (Mental Hygiene Law§ 10.03 [s]). Designated felonies under Mental Hygiene Law§ 10.03 (f) include promoting prostitution in the second degree and assaultin the second degree (see Penal Law §§ 230.30, 120.05).Promoting prostitution in the third degree is not a designated felony under MentalHygiene Law § 10.03 (f). However, at the jury trial, the first question on theverdict sheet asked: "Does the [appellant's] commission of assault in the second degreeor promoting prostitution in the second degree or promoting prostitutionin the third degree constitute a sexually motivated offense?" (emphasis added).
The appellant argues that the crime of promoting prostitution in the third degree isnot a "designated felony" under Mental Hygiene Law § 10.03 (f) and,therefore, does not constitute a sex offense that could subject him to civil confinement,even if the jury concluded that the offense was sexually motivated. The State contendsthat the appellant did not preserve this argument for appellate review and that, in anyevent, any error was harmless.
Generally, where no objection to an alleged error is advanced at trial, the objection isunpreserved for appellate review (see People v Becoats, 17 NY3d 643, 650 [2011]; People v Hawkins, 11 NY3d484, 490 [2008]; People v Gray, 86 NY2d 10, 19 [1995]). However, theinclusion on the verdict sheet of a crime that was not a designated felony within themeaning of Mental Hygiene Law § 10.03 (f) presents such a fundamentalerror that the appellant's failure to object does not bar our review of the issue in theexercise of discretion (seeGallagher v Samples, 6 AD3d 659, 660 [2004]; Decker v Rassaert, 131AD2d 626, 627 [1987]; DiGrazia v Castronova, 48 AD2d 249, 252 [1975]). Attrial, the State was required to establish by clear and convincing evidence that theappellant was a detained sex offender who suffered from a mental abnormality(see Mental Hygiene Law § 10.07 [d]). "It is an established rule ofSupreme Court jurisprudence that a general verdict of guilt must be set aside where thejurors in reaching their verdict may have relied on an illegal ground or on an alternativelegal ground and there is no way of knowing which ground they chose" (People vMartinez, 83 NY2d 26, 32 [1993], citing Griffin v United States, 502 US 46[1991]; see Yates v United States, 354 US 298, 311-312 [1957]; Stromberg vCalifornia, 283 US 359, 367-368 [1931]; see also People v Becoats, 17NY3d at 654). "Thus, the Supreme Court has consistently vacated general verdicts whereone of the choices afforded to the jury was to find guilt on an unconstitutional theory. Ithas rejected the contention that the verdict should be upheld because the fact finderpresumably based it on an alternative constitutional ground" (People v Martinez,83 NY2d at 32).
Contrary to the appellant's contentions, to the extent that the jury found that hiscommission of either assault in the second degree or promoting prostitution in the seconddegree was sexually motivated, the evidence was legally sufficient to support thosefindings, as there was a valid line of reasoning to support them, and, moreover, they werenot against the weight of the evidence, as they were supported by a fair interpretation ofthe evidence (see generallyMatter of State of New York v Anonymous, 82 AD3d 1250, 1251 [2011]; Matter of State of New York vDerrick B., 68 AD3d 1124, 1126 [2009]). However, the inclusion, on the verdictsheet, of a crime that was not a "designated felony" under Mental Hygiene Law§ 10.03 (f) presented the jury with a flawed legal theory. It is uncertain as towhether the jury found that the appellant's commission of assault in the second degree,promoting prostitution in the second degree, or promoting prostitution in the third degreewas sexually motivated. Such ambiguity in the jury's finding requires a new trial on thatissue (see People v Becoats, 17 NY3d at 654; People v Martinez, 83NY2d at 32-33).
Contrary to the appellant's further contention, there was a valid line of reasoning bywhich the jury could find, as it did, that he suffers from a "mental abnormality," as thatterm is defined in Mental Hygiene Law § 10.03 (i) (see Matter of Stateof New York v Anonymous, 82 AD3d at 1251; Matter of State of New York vDerrick B., 68 AD3d at 1126). Moreover, that finding was [*3]supported by a fair interpretation of the evidence and, thus,was not contrary to the weight of the evidence (see Matter of State of New York vAnonymous, 82 AD3d at 1251; Matter of State of New York v Andre L., 84 AD3d 1248,1249-1250 [2011]).
In light of our determination, we need not reach the appellant's remainingcontentions. Rivera, J.P., Sgroi, Hinds-Radix and Maltese, JJ., concur.