Opinion
565 CA 18-00009
02-07-2020
In the Matter of STATE of New York, Petitioner–Respondent, v. DANIEL J., Respondent–Appellant. (Appeal No. 1.)
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT–APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR PETITIONER–RESPONDENT.
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT–APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR PETITIONER–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal No. 1, respondent appeals from an order pursuant to Mental Hygiene Law article 10 in which Supreme Court determined, upon respondent's admission, that he has a mental abnormality that predisposes him to commit sex offenses (see § 10.03[i] ) and, after a dispositional hearing, directed that he be committed to a secure treatment facility. In appeal No. 2, respondent appeals from an order of the same court that denied his pro se motion pursuant to CPLR 4404 and 5015 for judgment as a matter of law.
Initially, we note that the appeal from the final order in appeal No. 1 brings up for review the propriety of the order in appeal No. 2 insofar as it denied that part of respondent's motion pursuant to CPLR 4404 (see CPLR 5501[a] ; see generally Matter of White v. Byrd–McGuire , 163 A.D.3d 1413, 1413–1414, 81 N.Y.S.3d 692 [4th Dept. 2018] ). We further note that, inasmuch as respondent has not raised on appeal any issues with respect to the denial of that part of his motion pursuant to CPLR 5015, he has abandoned any contentions with respect thereto. We therefore dismiss the appeal from the order in appeal No. 2 (see generally CPLR 5501[a] ; White , 163 A.D.3d at 1413–1414, 81 N.Y.S.3d 692 ; Abasciano v. Dandrea , 83 A.D.3d 1542, 1545, 924 N.Y.S.2d 696 [4th Dept. 2011] ).
Respondent's contention regarding the sufficiency of the evidence presented at the probable cause hearing is not properly before us because no appeal lies from the order finding probable cause (see Matter of State of New York v. Stein , 85 A.D.3d 1646, 1648, 924 N.Y.S.2d 231 [4th Dept. 2011], affd 20 N.Y.3d 99, 956 N.Y.S.2d 462, 980 N.E.2d 510 [2012], cert denied 568 U.S. 1216, 133 S.Ct. 1500, 185 L.Ed.2d 556 [2013] ). Additionally, respondent waived his contention that a delay in holding the probable cause hearing violated his due process rights; respondent consented to that delay, which arose from his request for a change of venue (see Mental Hygiene Law § 10.06[g] ).
Respondent failed to preserve for our review his contention that he was denied due process because a jury trial was not held within 60 days of the probable cause hearing (see Matter of State of New York v. Trombley , 98 A.D.3d 1300, 1302, 951 N.Y.S.2d 782 [4th Dept. 2012], lv denied 20 N.Y.3d 856, 2013 WL 105649 [2013] ).
We also reject respondent's contention that the court erred in denying his request to withdraw his waiver of the right to a jury trial on the issue whether he suffered from a mental abnormality as defined by Mental Hygiene Law article 10 (see Matter of State of New York v. Clyde J. , 141 A.D.3d 723, 723, 35 N.Y.S.3d 708 [2d Dept. 2016], lv denied 28 N.Y.3d 907, 2016 WL 6790639 [2016] ). The record establishes that the court conducted an on-the-record colloquy with respondent to determine that respondent, after an opportunity to consult with his attorney, was knowingly and voluntarily waiving his right to a jury trial (see Matter of State of New York v. Leslie L. , 174 A.D.3d 1326, 1328, 101 N.Y.S.3d 806 [4th Dept. 2019], lv denied 34 N.Y.3d 903, 2019 WL 5558964 [2019] ; Clyde J. , 141 A.D.3d at 723–724, 35 N.Y.S.3d 708 ). Contrary to respondent's contention, the court's colloquy did not suggest that there was a predetermined outcome on the issue of mental abnormality, and indeed the court explained respondent's right to challenge that issue before a jury. We reject respondent's further contention that the court improperly induced him to waive his right to a jury trial and admit to a mental abnormality by denying his request for an adjournment for the purpose of obtaining an evaluation by a second expert. Although the Mental Hygiene Law allows a respondent to be examined by a psychiatric examiner of his or her choice, the statute does not contemplate serial examinations (see § 10.06[e] ) and, in any event, the court did not abuse its discretion in denying respondent's request for an adjournment on the eve of trial to secure an additional opinion (see generally People v. Maynard , 30 A.D.3d 317, 318, 818 N.Y.S.2d 56 [1st Dept. 2006], lv denied 7 N.Y.3d 815, 822 N.Y.S.2d 490, 855 N.E.2d 806 [2006] ; People v. Palmer , 278 A.D.2d 821, 822, 719 N.Y.S.2d 432 [4th Dept. 2000], lv denied 96 N.Y.2d 786, 725 N.Y.S.2d 651, 749 N.E.2d 220 [2001] ). We also reject respondent's contention that the court failed to conduct a sufficient inquiry into his alleged issues with counsel prior to accepting his waiver of the right to a jury trial. Under the circumstances presented here, respondent's assertions that he and his attorney disagreed on strategy and that his attorney had not spoken to him often enough were "insufficient to require any inquiry by the court" ( People v. Barnes, 156 A.D.3d 1417, 1418, 67 N.Y.S.3d 373 [4th Dept. 2017], lv denied 31 N.Y.3d 1078, 79 N.Y.S.3d 99, 103 N.E.3d 1246 [2018] ). We likewise reject respondent's contention that the court improperly denied his request to withdraw his waiver based on the allegedly ineffective assistance provided by counsel in connection with the waiver and admission to a mental abnormality. The record does not support respondent's contention that counsel was unprepared; rather, counsel properly presented multiple arguments through pretrial motions, and respondent failed to "demonstrate the absence of strategic or other legitimate explanations" for counsel's decision not to present additional pretrial motions ( Matter of State of New York v. Carter , 100 A.D.3d 1438, 1439, 953 N.Y.S.2d 794 [4th Dept. 2012] [internal quotation marks omitted] ).
We agree with respondent that the court erred in admitting in evidence during the dispositional hearing certain hearsay testimony regarding uncharged conduct with respect to which respondent did not admit his guilt (see Matter of State of New York v. John S., 23 N.Y.3d 326, 343, 991 N.Y.S.2d 532, 15 N.E.3d 287 [2014], rearg. denied 24 N.Y.3d 933, 993 N.Y.S.2d 544, 17 N.E.3d 1141 [2014] ; Matter of State of New York v. Floyd Y. , 22 N.Y.3d 95, 109, 979 N.Y.S.2d 240, 2 N.E.3d 204 [2013] ) .Nonetheless, we conclude that the error was harmless because "[t]he State's case against respondent rested primarily on admissible evidence; particularly, expert basis testimony about [crimes for which respondent was convicted or to which he admitted] ..., and his refusal to participate in sex offender treatment while in prison" ( John S. , 23 N.Y.3d at 348, 991 N.Y.S.2d 532, 15 N.E.3d 287 ; see Matter of State of New York v. Charada T. , 23 N.Y.3d 355, 362, 991 N.Y.S.2d 9, 14 N.E.3d 362 [2014] ; Matter of State of New York v. Fox , 79 A.D.3d 1782, 1784, 914 N.Y.S.2d 550 [4th Dept. 2010] ).
We reject respondent's further contention that petitioner failed to prove by clear and convincing evidence that he is a dangerous sex offender requiring confinement. The court's determination following the dispositional phase of the proceedings is supported by the written opinions and testimony of two experts (see Matter of State of New York v. Pierce , 79 A.D.3d 1779, 1781–1782, 914 N.Y.S.2d 547 [4th Dept. 2010], lv denied 16 N.Y.3d 712, 2011 WL 1643556 [2011] ).
For the reasons stated above with respect to respondent's challenge to the propriety of his admission to a mental abnormality, we likewise reject respondent's contention that the court erred in denying that part of his motion pursuant to CPLR 4404.