| Matter of State of New York v Ian I. |
| 2015 NY Slip Op 02771 [127 AD3d 766] |
| April 1, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of State of New York,Respondent, v Ian I., Appellant. |
Mental Hygiene Legal Service, Mineola, N.Y. (Michael D. Neville, Timothy M.Riselvato, and Dennis B. Feld of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Anisha S. Dasgupta andMark H. Shawhan of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law article 10 for the civil managementof Ian I., an alleged sex offender requiring civil management, Ian I. appeals from anorder of the Supreme Court, Dutchess County (Forman, J.), dated October 21, 2013,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,made after a dispositional hearing, that he is currently a dangerous sex offender requiringcivil confinement, in effect, granted the petition and directed that he be committed to asecure treatment facility for care, treatment, and control until such time as he no longerrequires confinement.
Ordered that the order is reversed, on the law, without costs or disbursements, thefinding of mental abnormality is set aside, and the matter is remitted to the SupremeCourt, Dutchess County, for further proceedings, including a new trial on the issue ofmental abnormality, and, if necessary, a new dispositional hearing; and it is further,
Ordered that the appellant shall not be released pending the completion of such trial(see Mental Hygiene Law § 10.06 [k]).
A court may set aside a jury verdict as legally insufficient and enter judgment as amatter of law only where "there is simply no valid line of reasoning and permissibleinferences which could possibly lead rational [people] to the conclusion reached by thejury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45NY2d 493, 499 [1978]; seeMatter of State of New York v David M., 120 AD3d 1423, 1424 [2014]). Averdict that is supported by legally sufficient evidence may nonetheless be set aside ascontrary to the weight of the evidence, and a new trial ordered, if the verdict could nothave been reached on any fair interpretation of the evidence (see Matter of State ofNew York v David M., 120 AD3d at 1424). "Notably, [a] jury's determinations as tothe credibility of the witnesses are entitled to great deference given the jury's opportunityto evaluate the weight and credibility of conflicting expert testimony" (Matter of State of New York vEdison G., 107 AD3d 723, 724 [2013] [internal quotation marks omitted]; see Matter of State of New York vShawn X., 69 AD3d 165, 168 [2009]).
[*2] At trial, the petitioner, State of New York, presentedthe testimony of Dr. Ronald S. Field and Dr. Kostas A. Katsavdakis, both of whomdiagnosed the appellant with bipolar disorder, antisocial personality disorder, andpolysubstance disorder. In addition, Dr. Field diagnosed the appellant with sexualpreoccupation and sexual interest in underage girls. Both experts testified that theappellant's disorders, together with his continuing sexually deviant preference forpost-pubescent girls approximately 14 years of age, predisposed him to committing sexoffenses and caused him to have serious difficulty controlling that behavior. While thediagnoses of sexual preoccupation and sexual interest in underage girls are notrecognized diagnoses in the Diagnostic and Statistical Manual of Mental Disorders, itdoes not necessarily follow that those conditions were not relevant to the determinationof mental abnormality (seeMatter of State of New York v Shannon S., 20 NY3d 99, 106 [2012]). Inconsidering the expert opinions, "the jury was free to make its own credibilitydeterminations and weigh the competing expert testimonies accordingly" (Matter of State of New York vJames Z., 97 AD3d 1046, 1048 [2012] [internal quotation marks omitted]).Here, the evidence upon which the jury made its determination was legally sufficient tosupport the verdict, since there was a valid line of reasoning by which the jury couldconclude that the appellant suffered from a mental abnormality based on the evidencepresented at trial (see Matter ofState of New York v Derrick B., 68 AD3d 1124, 1126-1127 [2009]).
Additionally, the jury's verdict that the appellant here suffered from a mentalabnormality, as defined by Mental Hygiene Law § 10.03 (i), was supportedby a fair interpretation of the evidence (see Mental Hygiene Law§§ 10.03 [i]; 10.07 [a]; Matter of State of New York v Alfredo M., 96 AD3d 1068,1069 [2012]; Matter of State ofNew York v Derrick B., 68 AD3d 1124, 1126 [2009]).
Nevertheless, we agree with the appellant's contention that he was deprived of a fairtrial due to the cumulative prejudicial effect of several trial errors. Contrary to the State'scontention, the Supreme Court erred in denying that branch of the appellant's pretrialmotion which was to conduct a hearing pursuant to Frye v United States (293 F1013 [1923]) concerning the admissibility of the Hare PCL-R Instrument (hereinafter thePCL-R), which measures psychopathy, during the mental abnormality phase of the trial(see Matter of State of NewYork v Rosado, 25 Misc 3d 380 [2009]; see generally Matter of State of New York v Andrew O., 68AD3d 1161, 1163 [2009], revd on other grounds 16 NY3d 841 [2011];People v Morales, 227 AD2d 648, 649 [1996]). While the use of actuarial riskassessment instruments is scientifically accepted as a means to measure the risk ofrecidivism, the use of such instruments to determine the existence of a mentalabnormality is novel, and the State's bare statement to the contrary was insufficient tosatisfy the "general acceptance" test of admissibility (see Matter of State of New Yorkv Rosado, 25 Misc 3d at 386-387). For these same reasons, the court erred inconcluding that the probative value of the PCL-R outweighed any prejudicial effect ofthe terms "psychopath" or "psychopathy." Significantly, the State's expert, Dr.Katsavdakis, testified that the PCL-R is not a "direct assessment of mental abnormality"and was "not designed" to measure "[h]ow much more difficult [it is] for somebody whohas a high psychopathy score to control their behavior [as compared to] somebody whohas a low score" and that "would be [a] misuse of the test." Under the particularcircumstances of this case, it cannot be said that this error was harmless, since there is areasonable possibility that the jury could have reached another verdict had it not heardsuch testimony (see People v Crimmins, 36 NY2d 230, 237 [1975]; Matter of State of New York vWalter R., 118 AD3d 714, 716 [2014]; Matter of State of New York v Adrien S., 114 AD3d 862,864 [2014]).
Moreover, we agree with the appellant that the Supreme Court erred in denying hismotion for a mistrial on the ground that the appellant was unduly prejudiced by Dr.Katsavdakis's testimony that a previous court made a finding of probable cause to believethat he suffers from a mental abnormality (see Matter of State of New York v L.T., 24 Misc 3d1225[A], 2009 NY Slip Op 51615[U], *5 [Sup Ct, NY County 2009]; Matter of State of New York vDavis, 22 Misc 3d 318, 321-322 [2008]). That error was compounded when, inresponse to the appellant's objection, the court asked, "[c]an we stipulate to that?"
We also agree that the Supreme Court erred in permitting testimony concerning theappellant's youthful offender adjudication since the underlying offense—grandlarceny—does not constitute "information relevant to a determination of whether[the appellant] is a sex offender requiring civil management" (Mental Hygiene Law§ 10.08 [c]; seegenerally Matter of State of New [*3]York v John S.,23 NY3d 326, 341 [2014]). The State's contention that the grand larceny offense isrelevant to the issue of whether the appellant has "serious difficulty" in controlling hisconduct is without merit in light of the fact that the statute is only concerned with the"commission of conduct constituting a sex offense" and not criminality in general(Mental Hygiene Law § 10.03 [i]).
In light of our determination, we need not address the appellant's remainingcontentions. Mastro, J.P., Dickerson, Maltese and Barros, JJ., concur.