Opinion
341104-2008.
Decided on February 22, 2008.
In this special proceeding under Article 10 of the Mental Hygiene Law, petitioner, the State of New York ("State"), moves for an order directing the respondent C.B. ("respondent") to submit to an evaluation by a psychiatric examiner. Respondent opposes the motion. For the reasons set forth below, the motion is granted.
Factual Background
On January 27, 2000, respondent was convicted, by guilty plea, of Burglary in the Second Degree and Sexual Abuse in the First Degree under Indictment No. 3757/1998 in Bronx County, and was sentenced to a term of imprisonment of eight years. Respondent's prison term was completed on October 11, 2005. See Affirmation of Assistant Attorney General Jeffrey Jackson dated February 4, 2008 ("Jackson Aff.") at ¶ 4. Around the time of respondent's anticipated release in 2005, the State commenced a proceeding under Article 9 of the Mental Hygiene Law against him, resulting in his confinement at the Manhattan Psychiatric Center. See Affirmation of James White, Esq. ("White Aff.") dated February 8, 2008 at ¶ 3. In connection with the Article 9 proceeding, it appears that respondent was evaluated by two psychiatrists, Richard Krueger, M.D. and Lawrence Siegel, M.D., on August 31, 2006 and February 21, 2007, respectively. See Report of Article 10 Evaluation of Samuel J. Langer, M.D. dated June 22, 2007 at 1. Further, it appears that respondent saw a treating psychiatrist, Dr. Allan Wells, during his confinement. See White Aff. at ¶ 6.
Respondent and similarly-confined others challenged their confinement under Article 9. See State of New York ex rel. Harkavy v. Consilvio, 7 NY3d 607 (2006) (" Harkavy I"). In Harkavy I, the Court of Appeals held that in "the absence of specific statutory authority governing the release of felony offenders from prison to a psychiatric hospital," the State should, in the future, commence proceedings utilizing "the procedures set forth in Correction Law § 402, rather than Mental Hygiene Law article 9 . . ." Harkavy I, 7 NY3d at 610. The Court of Appeals did not direct respondent's release, but instead directed that he and the others "be afforded an immediate retention hearing pursuant to article 9 of the Mental Hygiene Law . . ." Id. at 614.
While respondent remained confined pursuant to Article 9, the Legislature passed the Sex Offender Management and Treatment Act in 2007, now codified primarily at Article 10 of the Mental Hygiene Law ("Article 10"). See generally State of New York ex rel. Harkavy v. Consilvio, 8 NY3d 645, 651-53 (2007) (" Harkavy II"). Article 10 was enacted to manage persons convicted of felony sex offenses and authorizes additional court-ordered supervision or further confinement after such persons have completed their prison terms. See New York State Assembly Codes Committee Memorandum at p. 1, annexed to White Aff. as Exhibit B. In Harkavy II, the Court of Appeals adhered to its holding that the State had improperly used Article 9 to civilly confine sex offenders like respondent, and directed those cases to proceed "expeditiously" in accordance with the procedures set forth in Article 10. See Harkavy II, 8 NY3d at 652.
On June 22, 2007, less than three weeks after the Court of Appeals had issued its decision in Harkavy II, but before the State filed a proceeding against respondent under Article 10, respondent was evaluated by another psychiatrist, Dr. Samuel Langer. See Petition at ¶¶ 19-21. Dr. Langer opined that respondent had a mental abnormality and was a sex offender requiring civil management as those terms are defined by Section 10.03. See id. The parties have not advised the Court as to how Dr. Langer came to evaluate respondent, but there is no allegation that this evaluation occurred pursuant to any court mandate under Article 10.
All references to Sections in this Decision and Order refer to sections of Article 10 of the Mental Hygiene Law.
On October 17, 2007, more than four months after Harkavy II was decided, the State filed a petition under Article 10 against respondent in New York County. See White Aff. at Exhibit A at p. 1. Thereafter, in accordance with Section 10.06(b), respondent removed the action from New York County to the Bronx, which was the county where the underlying offense had occurred. The State did not oppose the transfer, and the matter was transferred to Bronx County by Decision and Order of the Court (Bransten, J.) dated November 12, 2007. Upon receipt of the order transferring this matter, the Court immediately held a status conference with the parties on February 4, 2008. At that conference, the State served and filed its motion to have respondent submit to an evaluation by a psychiatric examiner pursuant to Section 10.06(d). The respondent filed an answer to the motion on February 11, 2008, and the State submitted a reply on February 15, 2008.
Analysis and Decision
Section 10.06(d) provides in relevant part:
. . . the attorney general may request the court in which the sex offender civil management petition could be filed, or is pending, to order the respondent to submit to an evaluation by a psychiatric examiner. Upon such a request, the court shall order that the respondent submit to an evaluation by a psychiatric examiner chosen by the attorney general and, if respondent is not represented by counsel, the court shall appoint counsel for the respondent.
(Emphasis added.)
The plain language of Section 10.06(d) appears to mandate that the Court "shall" grant the request of the State. Indeed, when "the plain language of [a] statute is precise and unambiguous, it is determinative." See Washington Post Co. v. New York State Ins. Dept., 61 NY2d 557, 565 (1984) (citations omitted). It is a "well-settled principle of statutory construction: courts normally accord statutes their plain meaning," except when it would lead to an absurd or unreasonable result. People v. Santi, 3 NY3d 234, 242 (2004) (citations omitted).
Nevertheless, respondent opposes the request for several reasons. First, respondent claims to have been evaluated on four earlier occasions, that Section 10.06(d) is not a license to order unlimited evaluations of respondent, and that any further evaluation constitutes impermissible expert-shopping on the part of the State. See White Aff. at ¶¶ 2, 5-7,11. Second, respondent claims that to obtain another evaluation, the State must, at a minimum, demonstrate "good cause," but has not done so. See White Aff. at ¶¶ 5-7. Third, respondent claims that the word "shall" in the statute "is not necessarily mandatory," and that the legislative history of Section 10.06(d) shows it to be a procedural safeguard to ensure the presence of counsel at the evaluation. See White Aff. at ¶¶ 8-10. Finally, respondent opposes the request because of its potential to delay the proceeding, including the probable cause hearing contemplated in Article 10. See White Aff. at ¶¶ 3-4. We address these arguments in turn.
First, as to respondent's claim that he has already been evaluated multiple times, it appears that Article 10 contemplates the possibility of multiple evaluations [ see Sections 10.05(e), 10.06(d) and 10.06(e)]; therefore, respondent's previous evaluations should not bar a court-ordered evaluation under Section 10.06(d). In any event, it appears that respondent has never been evaluated pursuant to a court-order under Section 10.06(d). In this regard, two of respondent's prior evaluations occurred under Article 9. The purpose of an Article 9 evaluation is to prepare the examining psychiatrist to testify at a retention hearing. By contrast, evaluations under Article 10 may be used to assist the case review team to determine whether an Article 10 proceeding should even be commenced. As such, Article 9 and Article 10 evaluations may have different purposes, and should not be considered as equivalents. See People v. Walker, Index No. 2007-C-0031, at 3-6 (Sup.Ct. Onondaga Co. Oct. 23, 2007) (Tormey, J.), citing, Matter of State v. Davis, 17 Misc 3d 433, 435-36 (Sup.Ct. Bronx Co. 2007). Similarly, there is no allegation that respondent's treating psychiatrist, Dr. Wells, ever evaluated him under Article 10.
While Dr. Langer evaluated respondent under Article 10, this evaluation occurred pursuant to Section 10.05(e). It plainly did not occur by court order under Section 10.06(d). Evaluations pursuant to Section 10.05(e) are used to determine whether an Article 10 proceeding should be commenced, while evaluations done pursuant to Section 10.06(d) may be performed at any time prior to trial. See State of New York v. Junco, Index No. 10495, at 3 (Sup.Ct. Washington Co. May 31, 2007) (Krogmann, J.); Walker, supra, at 2-3 (finding respondent entitled to counsel at evaluation under Section 10.06(d) but not at evaluation under Section 10.05(e)). Indeed, the Junco court granted the State's motion to have Junco re-evaluated by a psychiatric examiner pursuant to Section 10.06(d), even though there had been a prior evaluation pursuant to the provisions of Section 10.05.
Next, the Court rejects respondent's claim that a showing of "good cause" must be made before an evaluation can be ordered pursuant to Section 10.06(d). There simply is no "good cause" requirement in the statute, and it would be inappropriate for this Court to create one without legislative authorization. While it might be appropriate for the Court to require the State to show "good cause" if there had been a prior court-ordered evaluation or a showing of some form of harassment, abuse or undue prejudice [ see Strauss v. New York Ethical Culture Soc., 210 AD2d 134 (1st Dept. 1994)], the Court need not reach this issue here.
Also without support in the statutory text is respondent's claim that the word "shall" is not mandatory. Although Section 10.06(d) is concerned, in part, with respondent's right to counsel, both the statutory language and the legislative history provided to the Court show that the purpose of the provision is to allow the State to obtain a court-ordered evaluation. Indeed, the obvious focus of the section is the mandatory nature of the evaluation. Under the statutory scheme, if respondent refuses to submit to a court-ordered evaluation, Section 10.07(c) requires the Court "upon request" to "so instruct the jury." Moreover, when ordering an evaluation in the first place, the Court would be required to appoint counsel if no attorney had yet entered the case for the respondent. Each of these mandatory steps is preceded by the word "shall." The Court simply cannot conclude that the Legislature was enacting an optional procedure when it used the phrase "shall order the respondent to submit to an evaluation," but was instead issuing mandatory directives when it employed the phrases "shall appoint counsel" and "shall instruct the jury," respectively, in Sections 10.06(d) and 10.07(c). See generally People v. Medina, 16 Misc 3d 382, 389 (Sup.Ct. Bronx Co. 2007).
Finally, although respondent has good reason to be concerned about the potential for delay in the event that the State's motion is granted, the Court intends to expedite this proceeding in light of its history. After all, respondent has been held for over two years following the completion of his prison term and more than eight months following the Court of Appeals' direction in Harkavy II that these cases must proceed "expeditiously." This being the case, while the Court must grant the State's motion for an order directing respondent to submit to a psychiatric evaluation, there will be no delay of the probable cause hearing called for by Section 10.06(g) while the evaluation is pending.
For these reasons, the motion is granted. The foregoing constitutes the Decision of this Court. Settle order.Dated:February 22, 2008