| Matter of State of New York v Williams |
| 2016 NY Slip Op 03625 [139 AD3d 1375] |
| May 6, 2016 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of State of New York,Respondent, v Nushawn Williams, Also Known as Shyteek Johnson, Appellant.(Appeal No. 1.) |
Davison Law Office PLLC, Canandaigua (Mark C. Davison of counsel), forrespondent-appellant.
Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), forpetitioner-respondent.
Clifford Chance Us LLP, New York City (Evelyn Kachaje of counsel) and MayoSchreiber, Jr., Deputy Director, the Center for Hiv Law and Policy, for the AmericanAcademy of Hiv Medicine, Dr. Jeffrey Birnbaum/health Education Alternatives forTeens, Dr. Alwyn Cohall/project Stay, the Center for Hiv Law and Policy, the NationalAlliance of State and Territorial Aids Directors, Dr. Neal Rzepkowski and the TreatmentAction Group, Amici Curiae.
Appeal from an order of the Supreme Court, Chautauqua County (John L. Michalski,A.J.), entered March 3, 2014 in a proceeding pursuant to Mental Hygiene Law article 10.The order, among other things, directed that respondent be committed to a securetreatment facility designated by the Office of Mental Health.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: In appeal No. 1, respondent appeals from an order determining thathe is a dangerous sex offender requiring confinement pursuant to Mental Hygiene Law§ 10.07 (f). In appeal No. 2, he appeals from an order denying his motionpursuant to CPLR 5015 (a) seeking to vacate the order in appeal No. 1. Respondent wasconvicted in Chautauqua County in 1999 of two counts of rape in the second degree(Penal Law § 130.30) and one count of reckless endangerment in the firstdegree (§ 120.25) and, in Bronx County, of one count of recklessendangerment in the first degree (id.). The reckless endangerment convictionsstem from respondent's respective pleas of guilty that he had unprotected sexual relationsknowing that he was HIV-positive and that he did not inform his sexual partners that hewas HIV-positive.
We address first respondent's contentions in appeal No. 1. As we did in a priorappeal in this case (Matter ofState of New York v Williams, 92 AD3d 1274, 1275-1276 [2012]), we rejectrespondent's contention that he was not a detained sex offender when petitioner filed thepetition for civil management. Contrary to respondent's contention, the determination inPeople v Williams (24NY3d 1129, 1132 [2015]) does not compel a different result.
We reject respondent's further contention that Supreme Court erred in denying hismotion to change the venue from Chautauqua County to Bronx County on the groundthat he could not receive a fair trial in Chautauqua County because of the notorietyassociated with his criminal prosecution in 1999. As we explained in a prior appeal,"[c]onclusory statements unsupported by [*2]facts areinsufficient to warrant a change of venue . . . [,] [and] respondent failed tomake any factual or evidentiary showing that he would be unable to obtain a fair trial inChautauqua County or that a transfer was necessary for the convenience of the parties orwitnesses" (Matter of State ofNew York v Williams, 92 AD3d 1271, 1271-1272 [2012]).
Contrary to respondent's contention, we conclude that, viewing the evidence in thelight most favorable to the petitioner (see Matter of State of New York v John S., 23 NY3d 326,348-349 [2014], rearg denied 24 NY3d 933 [2014]), the evidence is legallysufficient to support the verdict that he has a mental abnormality that predisposes him tothe commission of conduct constituting a sex offense and that results in him havingserious difficulty controlling that conduct (see Mental Hygiene Law§ 10.03 [i]). Petitioner's two experts and respondent's expert agreed on thediagnosis of respondent with antisocial personality disorder (ASPD). Petitioner's expertsalso diagnosed respondent with psychopathy, which they described as a conditionwherein respondent has the traits of ASPD to an extreme degree. Respondent's experttestified that, although he did a psychopathy assessment, and his score was the same asone of petitioner's experts and higher than the other, he did not diagnose respondent withpsychopathy because it is not a diagnosis contained in the American PsychiatricAssociation's Diagnostic and Statistical Manual of Mental Disorders. Petitioner's expertseach diagnosed respondent with sexual preoccupation which, although not sufficient byitself to satisfy the criteria for mental abnormality (see Matter of State of New York v Kenneth W., 131 AD3d872, 873 [2015]), may nevertheless be part of a " 'detailed psychologicalportrait' " that can be used to establish mental abnormality (Matter of State of New York vRichard TT., 132 AD3d 72, 78 [2015], appeal dismissed 26 NY3d 994[2015]). Finally, each of petitioner's experts provided an additional diagnosis that theother did not: one expert diagnosed respondent with polysubstance abuse, and the otherexpert diagnosed him with sexual sadism. The latter expert had considered the diagnosisof sexual sadism when he prepared his report two years prior to the trial, but did notactually make the diagnosis until he reviewed the trial testimony of a victim regardingrespondent's violent and degrading treatment of her during an attempted rape when shewas 13 years old. The evidence also established that, in 1996, after he was advised thathe was HIV-positive, respondent, using charm and/or force, engaged in sexual relationswith 42 females, both adult women as well as girls under the age of 14 years old, 13 ofwhom contracted the virus. Two inmates and two correction officers testified that, interalia, respondent stated that he intended to continue that behavior upon his release,specifically referencing underage girls. Furthermore, respondent failed to complete sexoffender treatment and had a poor prison disciplinary record prior to 2006.
Even assuming, arguendo, that the diagnosis of sexual sadism is not supported bylegally sufficient evidence, as respondent contends, we nevertheless conclude that thediagnoses of ASPD, psychopathy, sexual preoccupation, and polysubstance abuse,together with respondent's failure to complete sex offender treatment, his poor prisondisciplinary record, his pattern of sexual misconduct, both with respect to the use of forceand targeting underage girls, and his stated intention to commit further sex offensescreate a " 'detailed psychological portrait' " of respondent that is legallysufficient to support the verdict (Richard TT., 132 AD3d at 78; see JohnS., 23 NY3d at 348-349; Matter of Wright v State of New York, 134 AD3d 1483,1485-1486 [2015]; cf. Matter ofState of New York v Donald DD., 24 NY3d 174, 190-191 [2014]). Indeed, weconclude that respondent is not simply a "dangerous but typical recidivist convicted in anordinary criminal case" (Wright, 134 AD3d at 1487 [internal quotation marksomitted]; see Donald DD., 24 NY3d at 189).
We reject respondent's contention that the court abused its discretion in denying hismotions seeking a mistrial based upon the testimony of a witness regarding respondent'sviolent attempted rape of her when she was 13 years old. Respondent alleged in his firstmotion that he was prejudiced by the undue surprise of the testimony of that witness. Wereject that contention inasmuch as the name of the witness appeared on the witness listand, although petitioner had not provided an offer of proof with respect to the witnesspursuant to the court's determination of respondent's motion in limine, respondent did notobject to the testimony until the court called a recess. Thus, we conclude that thetestimony of the witness did not constitute unfair surprise warranting a mistrial (cf. People v Shaulov, 25 NY3d30, 35-36 [2015]; Hannon v Dunkirk Motor Inn, 167 AD2d 834, 834-835[1990]). We conclude that the court did not abuse its discretion in denying respondent'ssubsequent motion seeking a mistrial on the ground that his defense was discreditedbecause respondent's counsel stated in his opening statement that there would be noevidence that respondent used force when engaging in sexual activity. The expert's reportsupporting the [*3]petition referenced respondent's use offorce with respect to other women, and thus respondent did not rely on assurances frompetitioner that there would be no evidence that respondent had used such force (cf.Shaulov, 25 NY3d at 35-36).
We reject respondent's contention that he was denied a fair trial by the improperadmission of hearsay evidence through the testimony of one of the petitioner's experts.We note initially that, although respondent made a motion in limine seeking to prohibitany testimony based on hearsay evidence, the court determined that it would have tomake determinations as such testimony was sought to be admitted, and respondent failedto object to the testimony at trial (see generally Matter of State of New York v Nervina, 120AD3d 941, 942 [2014], lv granted 24 NY3d 1065 [2014]). The experttestified that, in determining respondent's diagnoses, he considered a presentenceinvestigation, which included information that respondent was charged with a felonyoffense when he was 17 or 18 years old, and he also considered materials from a policeinvestigation, which included information regarding one of the women whom respondentallegedly forced to have sex. We conclude that the evidence based on hearsay met theminimum requirements of reliability and relevance (see Matter of State of New York v Floyd Y., 22 NY3d 95,109 [2013]). We also reject respondent's contention that he was denied a fair trial bymisconduct during summation by petitioner's counsel. Respondent failed to object to themajority of the alleged instances of misconduct, and thus failed to preserve for ourreview his contention with respect to those instances (see Matter of State of New York v Gierszewski, 81 AD3d1473, 1474 [2011], lv denied 17 NY3d 702 [2011]). Although we agree withrespondent that the attorney made some inappropriate remarks, we conclude that "noneof those remarks was 'so egregious or prejudicial as to deny respondent his right to a fairtrial' " (id.).
Contrary to respondent's contention, we conclude that he was not denied meaningfulrepresentation, as assessed by the standards that are applicable to counsel in criminalproceedings (see Matter of Stateof New York v Campany, 77 AD3d 92, 98-99 [2010], lv denied 15NY3d 713 [2010]). Respondent contends that there was no strategic or legitimateexplanation for his counsel to challenge the validity of respondent's HIV-positivediagnosis or to present evidence regarding the limited risk of transmission of that virusby respondent to others based upon the medical advances since respondent's convictionin 1999. We reject that contention and conclude that respondent's attorney may havedecided, legitimately, to avail himself of those approaches in light of the report of one ofpetitioner's experts, submitted in support of the petition, who referenced respondent'scondition as a "highly infectious disease." The record establishes that respondent'sattorney provided zealous representation both before and during the trial, and wetherefore conclude that he received the meaningful representation to which he wasentitled (see Matter of State ofNew York v Carter, 100 AD3d 1438, 1439 [2012]; Campany, 77 AD3dat 99-100).
We reject the contention of respondent in appeal No. 2 that the court erred in denyinghis motion pursuant to CPLR 5015 (a) seeking to vacate the order determining that he isa dangerous sex offender requiring confinement. Contrary to respondent's contention, thedecision of the Court of Appeals in Donald DD. (24 NY3d 174 [2014]) does notcompel the conclusion that he does not have a mental abnormality as defined by MentalHygiene Law § 10.03 (i). Present—Centra, J.P., Carni, DeJoseph,Curran and Scudder, JJ.