Matter of State of New York v C.B.

[*1] Matter of State of New York v C.B. 2009 NY Slip Op 51010(U) [23 Misc 3d 1130(A)] Decided on May 20, 2009 Supreme Court, Bronx County Riviezzo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 20, 2009
Supreme Court, Bronx County

Matter of State of New York, Petitioner,

against

C.B., Respondent.



341104/2008



For petitioner:

Jeffrey Jackson, Esq., Assistant Attorney General

State of New York, Office of the Attorney General

120 Broadway

New York, NY 10271

212 416 6091

For respondent:

Pierre Sussman, Esq.

2197 7th Avenue New York, NY 10027

212-860-8510

Dineen A. Riviezzo, J.

In this Article 10 proceeding, respondent C.B. moves in limine (1) to exclude statements contained in a videotaped confession made by the respondent on October 16, 1997, in connection with his arrest for the underlying offenses, (2) to exclude victim testimony, and (3) to exclude the use of Grand Jury minutes at trial.

Facts and Procedural History

On October 16, 1997, after his arrest on the underlying offense, respondent C.B. made a lengthy videotaped confession to a Bronx Assistant District Attorney and an arresting officer after being informed of his Miranda rights. The confession covered numerous discrete criminal offenses, some of which related to the underlying offenses, and some of which related to crimes for which respondent has never been charged. The events described on the tape consist, generally, of 11 separate occasions on which the respondent unlawfully entered private residences and, in some instances, admitted to masturbating onto his sleeping, female victims. On the tape, respondent admits to being an "exhibitionist," and that he "needs help" because he has a "disease" or a "problem" which causes him to commit these crimes repeatedly.

Respondent's Arguments

Respondent's current attorney initially adopted a written motion made by prior counsel. The written motion raised a number of arguments, including the following:

the victim should be precluded from testifying at the trial, as the testimony would be irrelevant, victim impact is not in issue, the facts of the underlying offense may not be re-litigated, and such testimony would violate public policy;

the videotape is inadmissible because it contains evidence of uncharged crimes;

the videotape is unreliable and prejudicial; and, [*2]

the respondent is not competent to testify as to his own mental state.

On April 9, 2009, at a scheduled hearing on the issue of the admissibility of the tapes, respondent, now represented by his present counsel, raised a number of additional arguments. These are:

the admission of the tape would violate respondent's constitutional right to challenge the voluntariness of the confession, since none of the procedural avenues to challenge the admission of the videotape which are available in a criminal proceeding apply under Article 10;

respondent did not voluntarily waive his due process rights to challenge the voluntariness of the confession, as Article 10 was not enacted at the time that the respondent pleaded guilty;

Grand Jury testimony from the underlying offenses should be precluded as the testimony was not referenced in the charges or the plea allocution, is sealed, and should not be disclosed absent a court order;

Article 10 is silent with respect to the admissibility of Grand Jury testimony.

Discussion

The Videotaped Statements Constitute Admissions

The statements on the tape constitute admissions against interest. As stated in Prince, Richardson on Evidence § 8-201: "As a general rule, any declaration or conduct of a party which is inconsistent with the party's position on trial may be given in evidence against the party as an admission. See FRE 801(d)(2). [A]dmissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever, or to whomsoever made.' Reed v McCord, 160 NY 330, 341, 54 NE 737, 740. People v Chico, 90 NY2d 585, 589, 665 NYS2d 5 (citing Text)." (Emphasis added.)

Even if the respondent was hoping to gain some advantage when he made the statements, such that they might have been considered to be "favorable" at the time of his criminal prosecution (i.e., his "disease" mitigated his criminal intent), the contents of the tape are nevertheless admissions. "An admission must appear to be against the interest of the party at the time of trial, but need not be against interest at the time it was made. People v Swart, 273 AD2d 503, 709 NYS2d 653 (citing Text). While an admission may be a declaration against interest, it is not necessarily so, for at the time it was made it may have been favorable to the declarant's interest." Prince, Richardson on Evidence § 8-203.

The videotaped statements of the respondent are directly relevant as to whether or not he suffers from a mental abnormality. A mental abnormality is defined in Article 10 as "a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct." (MHL 10.03 [I].) [*3]

Each admitted act of misconduct constitutes evidence of respondent's proclivity to commit sexual offenses and therefore is arguably relevant on the issue of "predisposition." Respondent's statements as to what could be characterized as his uncontrollable impulses to commit the above-described sexually-related conduct are directly relevant to the issue of respondent's "serious difficulty in controlling such conduct." The latter element, the so-called volitional element, is an essential legal requirement under Kansas v. Crane (534 U.S. 407 [2002]), and the one element that distinguishes sex offenders requiring civil confinement from those who are "typical recidivist convicted in an ordinary criminal case. 521 U.S., at 357-358; see also Foucha v. Louisiana, 504 U.S. 71, 82-83, 118 L. Ed. 2d 437, 112 S. Ct. 1780 (1992) (rejecting an approach to civil commitment that would permit the indefinite confinement "of any convicted criminal" after completion of a prison term)." (Id at 413.)

The fact that the respondent admitted committing acts which were not the basis of any criminal charges does not make the testimony any less relevant with respect to the issues to be determined at trial. Moreover, the fact that these incidents are "uncharged crimes" does not make them unduly prejudicial. Even in a criminal case, which this is not, evidence of uncharged crimes or prior bad acts can be admissible when relevant to a material issue in the case other than the defendant's propensity to commit criminal acts. (People v. Leeson, 2009 NY LEXIS 766, 2009 NY Slip Op 3590 [2009].) Respondent's commission of sex offenses is at the very core of the issues to be resolved under Article 10, and the statute does not limit consideration only to acts which ultimately resulted in criminal convictions. Rather, the history of respondent's conduct, charged and uncharged, is relevant to a determination as to whether he suffers from a mental abnormality.

Respondent cites case law which holds that a lay person is not competent to testify as to his or her own mental condition. These cases are not germane. Moreover, there is a vast difference between testimony by a person as to his mental condition, and past statements or conduct which may properly provide evidence relevant to the mental condition of that person. Even if the court accepts the accuracy of respondent's position that a person is not competent to testify as to an opinion of his mental condition ( e.g., "I am insane"), the distinction here is between testifying in court as to an opinion, and making statements out-of-court which reflect on the speaker's mental condition. (O'Connell v. Beecher, 21 App. Div. 298 [4th Dept 1897][in dispute over property line, plaintiff not competent to testify at trial that during relevant period due to a fall his "mind was not right"].) However, factual evidence of a person's conduct and declarations are competent evidence on the subject of mental condition. (See Bender's New York Evidence § 6.07.) Respondent's statements are not expert testimony as to his mental condition, but are, instead, evidence which both of the party's experts viewed, and which the jury may consider in evaluating the experts' testimony, and in forming a conclusion as to respondent's present mental condition.

Due Process Arguments

Respondent argues that the use of his statement in this proceeding would violate his constitutional rights, as he was never afforded the right to a Huntley hearing. First, as the plea minutes of the underlying offense indicate, respondent did in fact seek to suppress the statements, but explicitly waived his right to suppress the statement by pleading guilty, as he was so advised [*4]during his plea allocation. No Fifth Amendment right applies in this civil, sex offender commitment proceeding. (Matter of Michael WW, 20 AD3d 609, 798 NYS2d 222 [3d Dept. 2005]; Ughetto v. Acrish, 130 AD2d 12, 518 NYS2d 398 [2d Dept. 1987] [MHL Article 9]; Allen v. Illinois, 478 US 364 [1986] [civil commitment under Illinois Sexually Dangerous Persons Act]; see also, Terpstra v. Niagara Fire Ins. Co., 26 NY2d 70, 256 NE2d 536, 308 NYS2d 378 [1970] [statement taken in violation of right to counsel in criminal proceeding admissible in later civil action]).

The main thrust of respondent's arguments is that he might have challenged the voluntariness of his statements had he known that they might be used against him in this civil proceeding. As noted, respondent waived suppression by pleading guilty. Nor can argument be employed to transport rights which respondent had in the criminal proceeding into this civil proceeding. The fact that respondent might not have pleaded guilty had he been aware that a future civil proceeding might be based on that criminal conviction, does not give rise to a renewed right to seek suppression of the confession.

Nevertheless, as respondent correctly points out, a party in a civil proceeding may deny an admission, or submit evidence concerning the circumstances surrounding an admission. As stated in Terpstra, "If the prior statements were made involuntarily and did not convey the truth, then declarant may attempt so to persuade the jury, just as he might when any other admission is thrown up to him at a time when he is relating to the fact finder a completely different story." (Terpstra v. Niagara Fire Ins. Co., 26 NY2d 70, 74.) The respondent is not in any way prevented from adducing relevant evidence concerning the facts and circumstances surrounding the confession, including the voluntariness of the statements and the fact that the statements were made 12 years ago — a fact that goes to the weight to be accorded to the evidence, and not to its admissibility.

Discretionary Limitation of Trial Testimony

Nevertheless, the court retains the discretion to limit the evidence presented to avoid prejudice and confusion at trial. (See, e.g., Kubista v. Kubista, 11 AD3d 743 [3d Dep't 2004][court clearly acted within its discretion when it limited the number of witnesses each side could present and determined that the proffered testimony of the additional witnesses named by the father would be cumulative and unnecessary].)

In order to avoid confusing the jury with needless repetition of substantial similar evidence (the tape in its entirety is over 1 ½ hours long and contains descriptions of 11 incidents as described above), the court will limit the admission of the videotape, and permit only that portion up to and including the incident of 5/29/97 — permitting 6 of the 11 such incidents to be played to the jury. This is slightly more than 50% of the tape. The court finds that the incidents included in that portion are factually similar to the underlying offenses for which respondent was indicted, and contain sufficient statements regarding what is alleged to be respondent's compulsion to act on his impulses. Playing the remaining portion would be cumulative and potentially confusing and prejudicial.

As respondent admits in his papers, experts for both the petitioner and the respondent have viewed and relied upon this videotape in forming their conclusions. While only the portion previously stated would be played before the jury, both sides are not limited in their direct or [*5]cross examination from inquiry of the experts as to any and all portions of the tape. If necessary, a proper instruction may be given to the jury as to the manner in which they should consider this evidence.

The Victim's Testimony is Not Required At Trial

Respondent seeks to preclude victim testimony at trial. In this regard, petitioner seeks to elicit testimony by one victim as to the physical layout of the premises where the crime occurred, in order to demonstrate that respondent risked discovery by other persons in the house by passing occupied rooms in order to reach the room where the victim was found, and that his willingness to do so indicates the depth of his compulsion to commit sex offenses. Respondent maintains that this testimony would be irrelevant, that victim impact is not is issue, that the facts of the underlying offense may not be re-litigated, and that the testimony would violate public policy.

Petitioner has not articulated a cogent basis for permitting the victim to testify at trial. Even assuming that the physical layout of the premises where the crime occurred is in issue, the court discerns no plausible need to call the victim to establish these facts. Respondent's own admissions in the videotape amply illustrate that he was required to navigate a series of occupied rooms in order to locate his victim. Since the commission of the underlying offense is established for the purpose of Article 10, and may not be re-litigated (MHL § 10.07 [c]), no purpose would be served by calling the victim. Indeed, the prejudicial effect of calling the victim clearly outweighs the small probative value of her testimony as to the physical layout of her dwelling.

Grand Jury Testimony

The petitioner is not seeking to introduce the Grand Jury testimony from the underlying criminal proceedings. Respondent's motion to exclude is, in this regard, academic.

Conclusion

This constitutes the order of the Court.

5-20-09/s/

DateJ.S.C.

For petitioner:

Jeffrey Jackson, Esq., Assistant Attorney General

State of New York, Office of the Attorney General

120 Broadway

New York, NY 10271

212 416 6091

For respondent:

Pierre Sussman, Esq.

2197 7th Avenue

New York, NY 10027 [*6]

212-860-8510