Matter of State of New York v L.T.

[*1] Matter of State of New York v L.T. 2009 NY Slip Op 51615(U) [24 Misc 3d 1225(A)] Decided on July 22, 2009 Supreme Court, New York County Conviser, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 22, 2009
Supreme Court, New York County

In the matter of the application of The State of New York, Petitioner,

against

L.T., Respondent,



30104-2008

Daniel P. Conviser, J.

The Respondent in this proceeding for sex offender civil management pursuant to Article 10 of the Mental Hygiene Law moves for an order pursuant to Civil Practice Law and Rules § 3212 granting summary judgment and dismissal of the petition. In order for a sex offender to be subject to civil management under Article 10, it must be found that the offender is a "Detained Sex Offender" who suffers from a "Mental Abnormality". Respondent here does not dispute that he is a Detained Sex Offender. He alleges, however, that there is no merit to the contention that he suffers from a Mental Abnormality and that the petition must be dismissed as a matter of law on that basis. Under the statute a Mental Abnormality is defined 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 have serious difficulty in controlling such conduct. Mental Hygiene Law §10.03 (i).

Respondent's motion is based upon the psychiatric evaluations which have been conducted in this case. Both the psychiatric evaluator designated by the Respondent in this case (Dr. Joe Scroppo) and the psychiatric evaluator designated by the State (Dr. Lawrence Siegel) have opined that there is insufficient evidence to demonstrate that the Respondent suffers from a Mental Abnormality. Dr. Christine Rackley, however, who examined the Respondent on behalf of the "Case Review Team" which evaluated whether a petition should be filed against the Respondent in this case, has opined and according to the State would continue to opine at trial, that the Respondent does suffer from a Mental Abnormality.

Respondent makes two arguments as to why Dr. Rackley's testimony would not create a genuine issue of material fact which would have to be resolved at trial. First, he argues that because Dr. Rackley's evaluation was conducted for the Case Review Team rather than as a psychiatric examiner designated by one of the two parties, her testimony as to Respondent's alleged Mental Abnormality would not be admissible at trial. Second, he alleges that Dr. [*2]Rackley has never considered or explicitly found that the Respondent has "serious difficulty in controlling" his sexually offending behavior, a necessary element of the definition of a Mental Abnormality. For the reasons stated below, Respondent's motion is denied.

FINDINGS OF FACT

The Respondent, L.T. was convicted by plea of guilty of the crime of Rape in the First Degree and was sentenced to a ten year determinate prison sentence on October 21, 1998. Respondent's 1998 conviction followed an extensive criminal history which dated back to 1993. That history includes, according to Dr. Rackley's report, two additional arrests for Rape; one in 1996 and an additional charge in 1998.

When an offender who may be a candidate for civil management nears release from prison, parole or post-release supervision, notice of that fact is given to the State Office of Mental Health (OMH). Mental Hygiene Law § 10.05 (b). OMH does a preliminary evaluation of whether the Respondent should be referred to a "Case Review Team" for further review. Mental Hygiene Law § 10.05 (d). The Case Review Team is a group of 15 persons designated by OMH, any three of which may review individual cases. Mental Hygiene Law § 10.05 (a). The Case Review Team "may arrange for a psychiatric examination of the respondent". Mental Hygiene Law § 10.05 (e). Here, Respondent's case was referred to the Case Review Team for an evaluation on April 2, 2008. On April 14, 2008, Dr. Christine Rackley, a licensed psychologist employed by OMH, prepared a report for the Case Review Team. Dr. Rackley concluded that: As stated above, this psychiatric examiner came to the opinion, to a reasonable degree of professional certainty that the Respondent suffers from a mental abnormality that affects his emotional, cognitive, or volitional capacity in a manner that predisposes him to the commission of conduct constituting criminal behavior. He has had four arrests related to sexual offenses and he remains at risk for offending in a sexual manner in the future. Though he denies it at the present time, it is likely that Mr. [L.T.] is sexually preoccupied. He was arrested three times for rape and once for Support from Prostitute's earnings and Contributing to the Delinquency of a Minor. Additionally, he was involved in the pornography industry and received a disciplinary ticket while incarcerated for Lewd Conduct. See Exhibit "C" to Respondent's motion for summary judgment, May 22, 2009 (hereafter "Respondent's Motion").

The State filed a petition for sex offender civil management against the Respondent on April 17, 2008. When such a petition is filed, a hearing must then be conducted to determine whether there is probable cause to believe the Respondent is a sex offender requiring civil management. Mental Hygiene Law § 10.06 (g). Such a probable cause hearing was conducted before Supreme Court Justice Charles Tejada on June 26 and July 3, 2008. Justice Tejada, in a written Decision and Order dated July 28, 2008, found that the Respondent was a sex offender requiring civil management. Justice Tejada's decision was based on written records received in evidence, the testimony of Respondent's mother and the testimony of Dr. Rackley. Justice Tejada also determined that the Respondent should be confined rather than released pending trial.

Article 10 provides that the Attorney General may request an order prior to trial to have the Court appoint a psychiatric examiner to examine the Respondent and report the examiner's [*3]findings to the parties and the Court. In this case, the Court appointed Dr. Lawrence Siegel, M.D. as the State's examiner. Dr. Siegel issued a written report on April 12, 2009. Dr. Siegel concluded that: The respondent has characteristics that, in studies of released sex offenders, were associated with a high risk for sex offense recidivism. He has a demonstrated propensity to commit sexual offenses. While he has a serious personality disorder that will likely negatively impact his behavior in the future, it is unclear if this equates with a mental abnormality under New York State law. See Respondent's Motion, Exhibit "A" at 1.

Dr. Siegel went on to explain that: In my opinion, when he was committing his sexual offenses, it was not so much that he had serious problems controlling his behavior, as it was that he was insufficiently motivated to refrain from acting as he wanted to act. Id. at 11.

Dr. Siegel then went on to quote language from the United States Supreme Court's decision in Kansas v. Crane, 534 US 407 (2002), the second of two seminal United States Supreme Court cases outlining the constitutional requirements states must meet in enacting and administering sex offender civil confinement statutes. See also, Kansas v. Hendricks, 521 US 346 (1996). As Dr. Siegel noted, in Crane the Court held that civil confinement laws must require a showing of "serious difficulty in controlling behavior" on the part of a respondent, sufficient to distinguish civil committees from "the dangerous but typical recidivist convicted in an ordinary criminal case". Dr. Siegel went on to note that while the Kansas statute at issue in Crane allowed for only one possible disposition for an offender found to be in need of civil management — confinement, New York law provided a second option of strict and intensive supervision and treatment for offenders found to suffer from a mental abnormality. Dr. Siegel thus speculated that the constitutional standard articulated in Crane might be different under New York law because New York law did not require confinement for every offender found to have a mental abnormality. He went on to conclude, however, that "[i]f the standard for mental abnormality in New York is the same as it is in Kansas as required by the Federal Constitution, then it would be my opinion that Mr. Torres does not have a mental abnormality." Id. at 12.

Under Article 10, just as the State is authorized to have a psychiatric examiner appointed to examine a Respondent, the Respondent is likewise authorized to request the appointment of a psychiatric examiner. The authorization for respondents to request such evaluations mirrors the language allowing the State to request such appointments. Mental Hygiene Law § 10.06 (e). Here, the Court appointed Dr. Joe Scroppo, a licensed psychologist, to evaluate the Respondent. Dr. Scroppo completed his report on April 2, 2009.

Dr. Scroppo first concluded that L.T. does not suffer from a "congenital or acquired condition, disease or disorder that affects his emotional, cognitive or volitional capacity". He opined that the Respondent did not meet the criteria for Anti-Social Personality Disorder. Rather, he diagnosed the Respondent with "Adult Anti-Social Behavior", which, he said, was not due to a mental disorder. Given this opinion, Dr. Scroppo noted, the other components of the [*4]Mental Abnormality definition would be irrelevant. However, he further opined, assuming L.T. did have a mental disorder, that the Respondent was not predisposed to commit sexual offenses. Rather, Dr. Scroppo concluded, Respondent's criminal sexual behavior was one facet of his overall criminality and stemmed from his work with prostitutes, his desire to make money, his selfishness and his lack of regard for other people. Dr. Scroppo also noted that there was no evidence that the Respondent had exhibited any serious difficulty in controlling his sexual behavior. See Respondent's Motion, Exhibit "B". On May 22, 2009, Respondent brought the instant motion for summary judgment, asking for the petition against the Respondent to be dismissed. That motion, as noted supra, is opposed by the State.

CONCLUSIONS OF LAW

Pursuant to CPLR 3212 (b) the party moving for summary judgment must submit an affidavit.

The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party...[T]he motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact...

Respondent's initial argument for summary judgment is that Dr. Rackley should not be permitted to testify at trial. Respondent makes a number of closely related arguments in this regard and cites the decision of the Court in State v. Davis, 22 Misc 3d 318 (Queens County 2008). In Davis, as in the instant matter, the psychiatric examiner who conducted the Case Review Team examination initially opined that the Respondent suffered from a Mental Abnormality. But, as in the instant matter, both the State's and the Respondent's appointed experts opined that the Respondent did not suffer from a Mental Abnormality. Unlike the instant matter, however, after initially reaching the conclusion that the Respondent suffered from a Mental Abnormality, the Case Review Team examiner informed the State's counsel that were she to testify at trial, she would no longer be able to conclude that the Respondent suffered from a Mental Abnormality. The Court granted summary judgment to the Respondent, first, because all three of the experts who could be expected to testify at trial were expected to testify that the Respondent did not suffer from a Mental Abnormality. Here, in contrast, one of the three examiners (Dr. Rackley) would be expected to testify at trial that the Respondent suffers from a Mental Abnormality.

The Court also granted Respondent's motion, however, because it held that the Case Review Team evaluator's testimony at trial would be "prohibited". The Court based this conclusion on its review of the Pattern Jury Instructions for sex offender civil management proceedings. Those pattern instructions provide that the jury should not be told of various determinations made in civil management cases before trial, including the determination of a Case Review Team that a Respondent is a sex offender in need of civil management. Davis, 22 Misc 3d at 321 citing NY PJI § 8.8.

This Court has no disagreement that, under the facts recounted in Davis, summary judgment was proper in that case and has no disagreement with the provisions of the Pattern Jury [*5]Instructions cited in Davis. The Court does, however, respectfully disagree with the conclusion reached by the Davis Court that an expert who evaluates a Respondent for the Case Review Team is prohibited from testifying at trial.[FN1]

The provisions of the Pattern Jury Instructions (which are not derived from the Article 10 statute) reflect the sound notion that the jury, as the fact-finder, should not be told about previous determinations made by a Court or a state agency about whether the respondent suffers from a mental abnormality. This rule prevents a jury from being prejudiced by these prior findings and allows them to focus only on the evidence which is presented to them. Thus, just as a jury in a criminal case is not normally informed that the Court, in a hearing before trial, concluded that there was probable cause to arrest a defendant, the jury in an Article 10 case will not be told that the Court, before an Article 10 trial, determined that there was probable cause to believe the respondent suffered from a Mental Abnormality.

But there is no comparable justification or statutory admonition in the Article 10 statute which provides that the evidence underlying any of these prior determinations should be kept from the jury. When a police officer testifies in a criminal case at a probable cause hearing before trial, he is not then prohibited, by virtue of this hearing testimony, from providing the same evidence, (assuming it is admissible) at a trial. Under the Pattern Jury Instructions, and the policy rationale behind them, it is the findings of pre-trial Article 10 proceedings which should be kept from the jury, not the testimony or other evidence underlying them. Indeed were the rule otherwise, many psychiatric examiners appointed by both petitioners and respondents to testify at Article 10 trials would be prohibited from doing so, since such examiners also often testify at probable cause hearings before trial. Moreover, here, the State has indicated that the jury will be asked to find that L.T. suffers from a Mental Abnormality because Dr. Rackley currently believes that to be the case, not because she formerly held that opinion.

Respondent next argues that the Article 10 statute contemplates a balanced presentation of evidence, in which each side is permitted to retain only one expert to testify at trial. This argument is essentially one of statutory construction. The statute, however, does not, in the Court's view support this view. Article 10 contains a number of detailed evidentiary rules which govern Article 10 proceedings. The legislature could have easily constructed a rule, obviously, which prohibited any expert witness, other than the two expert witnesses appointed as examiners after a petition had been filed, from testifying at trial. But the statute contains no such provision.

The statute uses the defined term "psychiatric examiners" in discussing the various evidentiary rules applicable to psychiatric expert witnesses who testify at trial. See e.g. Mental Hygiene Law §10.08 (g). The term is defined as "a qualified psychiatrist or licensed psychologist who has been designated to examine a person pursuant to this article; such designee may, but need not, be an employee of the office of mental health or the office of mental retardation and developmental disabilities". Mental Hygiene Law §10.03 (j). Psychiatrists and psychologists [*6]who are appointed by the court upon the request of petitioners and respondents are classified as "psychiatric examiners". See Mental Hygiene Law §§ 10.06 (d) & (e), discussed supra. But the statute also provides that the Case Review Team may arrange for a "psychiatric examination" of the Respondent (the disputed examination here). See Mental Hygiene Law § 10.05 (e) discussed supra. Under the literal terms of the statute, a psychiatrist or psychologist who conducts a Case Review Team examination is a psychiatric examiner regardless of whether they are later designated as such by one of the parties. Dr. Rackley's testimony and expert opinion would obviously be probative at trial. In the absence of any clear rule or clear indication in the statute that the testimony of such an expert witness was intended by the legislature to be precluded at trial, the Court does not believe it has the authority to fashion such a rule.

Respondent next argues that summary judgment is appropriate because Dr. Rackley's report does not explicitly state that the Respondent has "serious difficulty" in controlling his sexually offending behavior. On this point, Respondent first argues that this is an essential element of a Mental Abnormality finding under both the plain language of Article 10 and as a matter of federal constitutional law. The Court agrees with the Respondent on this point.

Dr. Rackley, in her report, explicitly opined that the Respondent suffered from a Mental Abnormality. A finding of a Mental Abnormality under the statute necessarily includes a finding that a respondent has serious difficulty in controlling his sexually offending behavior, since, as noted supra, such a lack of control is one of the elements of the definition . Respondent's claim here is that Dr. Rackley in her report did not explicitly state this discrete element of the definition or explicitly indicate why she felt the "serious difficulty" element had been made out. Dr. Rackley's conclusions also could be read to indicate that she did not fully appreciate the significance of this requirement.

Summary judgment is a drastic remedy and should not be granted where triable issues of fact are raised. It cannot be resolved based on competing affidavits. Mason v. Dupont Direct Financial Holdings, Inc., 302 AD2d 260 (1st Dept 2003). If the facts presented permit for conflicting inferences to be drawn summary judgment must be denied. Morris v. Lenox Hill Hospital, 232 AD2d 184 (1st Dept 1996), affd, 90 NY2d 953 (1997).Summary judgment focuses on issue-finding and not issue-determination (Brunetti v. Musallam, 11 AD3d 208 [1st Dept 2004], affd as mod, 59 AD3d 220 [1st Dept 2009]; Dauman Displays, Inc. v. Masturzo, 168 AD2d 204 [1st Dept 1990], app dismissed, 77 NY2d 939 [1991]) and should not be granted where there is any doubt as to the existence of a triable issue or where the existence of an issue is arguable. American Home Assurance Co. v. Amerford International Corp., 200 AD2d 472 [1st Dept 1994]). If the moving party fails to establish that no material issue of fact exists, the motion for summary judgment must be denied regardless of the sufficiency of the opposing counsel's papers. Silverman v. Perlbinder, 307 AD2d 230 (1st Dept 2003).

However, the party opposing a motion for summary judgment must assert genuine, not feigned, factual issues and when such party relies on an expert the expert cannot assume material facts that are unsupported by evidence to sustain his or her conclusions. Cillo v. Resjefal Corp., 16 AD3d 339 (1st Dept 2005). Presenting the "shadowy semblance of an issue" will not defeat the motion. MRI Broadway Rental, Inc. v. United States Mineral Products Co., 242 AD2d 440 (1st Dept 1997), affd, 92 NY2d 421 (1998).

Dr. Rackley would clearly be qualified to testify as an expert psychiatric witness at trial. [*7]Her report and its conclusions were based on an extended interview of the Respondent, on collateral phone contacts and extensive criminal justice records. The evidence Dr. Rackley has considered, in the Court's view, clearly provides a sufficient basis on which she would be able to opine that the Respondent suffers from a Mental Abnormality. She did also opine, in fact, in her initial report and at Respondent's probable cause hearing that the Respondent suffered from a Mental Abnormality. Her testimony was the basis for Justice Tejada's probable cause finding in this case. The State avers that Dr. Rackley would likewise testify at trial that the Respondent suffers from a Mental Abnormality.

In her report, Dr. Rackley used language which did not clearly indicate whether she had adequately considered whether the Respondent had serious difficulty in controlling his sexually offending behavior. As noted supra, she opined that he "suffers from a mental abnormality". But she then went on to say only that his condition "affects his emotional, cognitive, or volitional capacity in a manner that predisposes him to the commission of conduct constituting criminal behavior", a finding which would clearly not constitute an adequate basis for finding a Mental Abnormality. Moreover, in her report, she did not outline how or why she might believe the Respondent had serious difficulty in controlling his behavior. Dr. Scoppo and Dr. Siegel, in the Court's view, correctly identified the relevant inquiry in this regard and offered an opinion on it. They correctly noted that the issue here is whether L.T. has serious difficulty in controlling his behavior or, alternatively, is perfectly capable of controlling that behavior but simply chooses not to. Dr. Rackley did not discuss this critical issue or explicitly offer an opinion about it.

Given her detailed report, her assertion that the Respondent has a Mental Abnormality, the State's assertion that she would testify to that effect at trial and the underlying facts which would serve to support that conclusion, in the Court's view, the Respondent has not met its burden of demonstrating that there are no issues of material fact for a finder of fact to consider in this case.

It is clear to the Court that the State might face a difficult burden in seeking to convince a finder of fact at trial that there was clear and convincing evidence that the Respondent suffered from a Mental Abnormality. This would arise both from the fact that the experts retained by both the State and the Respondent have reached a different conclusion and from the deficiencies in Dr. Rackley's report outlined by the Respondent. It might be particularly difficult, in the Court's view, based on the anticipated testimony at trial, to demonstrate that the Respondent had serious difficulty in controlling his sexually offending behavior. Based on the evidence here, however, the Court does not believe that the challenges the State would face in proving its case at trial rise to the level of allowing a current determination that there are no genuine issues of material fact to be resolved at trial. Respondent's motion is therefore denied.

Dated: New York, New York________________________

July 22, 2009Daniel P. Conviser, A.J.S.C. Footnotes

Footnote 1: Respondent concedes that there would be a circumstance which, even in his judgment, would allow such a Case Review Team psychiatric examiner to testify at an Article 10 trial. That would be in a case where the Case Review Team examiner was later appointed as the petitioner's or respondent's expert pursuant to Mental Hygiene Law §§ 10.06 (c) or (d). That circumstance is not present here.