State of New York v Hall

[*1] State of New York v Hall 2007 NY Slip Op 52139(U) [17 Misc 3d 1124(A)] Decided on November 7, 2007 Supreme Court, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 7, 2007
Supreme Court, Dutchess County

State of New York, Petitioner,

against

Jason Hall, an inmate in the custody of the New York State Department of Correctional Services, Respondent,



2424/07



LISA GHARTEY, ESQ.

Assistant Attorney General

Attorney for Petitioner

State of New York,

Office of the Attorney General

235 Main Street, 3rd Floor

Poughkeepsie, New York 12601

RACHAEL E. SEEVERS, ESQ.

Mental Hygiene Legal Service

Attorneys for Respondent

170 Old Country Road, Suite 500

Mineola, New York 11501

DAVID T. WARSHAW, ESQ.

Mental Hygiene Legal Service

Attorneys for Respondent

10 Ross Circle

Poughkeepsie, New York 12601

James D. Pagones, J.

The respondent moves for an order dismissing this Article 10 petition and, in the alternative, for an order excluding the examination report of Dr. Baker from submission in any future proceedings. The petitioner moves for an order granting leave to attend a court ordered psychiatric examination of the respondent and to videotape the examination.

MOTION TO DISMISS/PRECLUDE

The petitioner asserts that the psychiatric evaluation performed by Dr. Baker and relied upon by the petitioner at respondent's probable cause hearing "was pursued in violation of respondent's right to counsel." The instant proceeding was instituted by a petition on April 24, 2007. The court conducted a probable cause hearing on June 18, 2007 at which the petitioner presented, inter alia, an evaluation prepared by Vanessa Baker, PsyD. Following the hearing, this Court found probable cause that the respondent is a sex offender requiring civil management pursuant to MHL §10.06(k). The court scheduled a trial of this proceeding within sixty days as required by statute. The parties have repeatedly adjourned the trial on consent. The respondent argues that he was entitled to legal counsel at the pre-hearing psychiatric examination ordered pursuant to MHL §10.05(e) by the case review team. The respondent relies upon the holding in Ughetto v. Acrish, 130 AD2d 12 & lbrac;2d Dept. 1987 & rbrac;. The Ughetto matter involved a proceeding instituted pursuant to Article 9 of the Mental Hygiene Law unlike the instant proceeding which has been instituted pursuant to Article 10.

Additionally, MHL Article 10 makes specific provisions for the assignment of counsel. Specifically, MHL §10.06(c) provides:

"Promptly upon the filing of a sex offender civil management petition...the court shall [*2]appoint counsel in any case where the respondent is financially unable to obtain counsel."

Furthermore, MHL §10.08(g) provides, in pertinent part:

"In preparing for or conducting any hearing or trial pursuant to the provisions of this article, and in preparing any petition under the provisions of this article, the respondent shall have the right to have counsel represent him or her, provided that the respondent shall not be entitled to appointment of counsel prior to the time provided in section 10.06 of this article."

I find that the statute which controls this proceeding does not require the appointment of counsel for respondent for any psychiatric evaluation conducted prior to the filing of the petition. The respondent has failed to submit any controlling authority that such an appointment is required. Therefore, the respondent's motion is denied in its entirety.

COURT ORDERED PSYCHIATRIC EXAMINATION

Pursuant to MHL §10.06(e), the respondent has requested a court ordered independent psychiatric examination by his own expert. The petitioner moves for an order permitting its attendance at the examination and for leave to videotape the examination. The respondent's counsel avers that "respondent does not oppose the videotaping of the subject examination." The petitioner asserts a right to be present during the psychiatric examination. MHL Article 10 makes no provision for petitioner's attendance at a court ordered psychiatric examination pursuant to MHL §10.06. The petitioner has cited no controlling authority which would permit such an intrusion. The videotaped record of the examination, to which respondent consents, provides an adequate safeguard for any concern about the procedure which the petitioner may have. As the petitioner's counsel accurately notes, the videotape of the examination "will give both parties, as well as the Court, a sufficient, accurate portrayal, and record of the psychiatric examination." Therefore, it is ordered that the petitioner's application to be present during the psychiatric examination is denied. It is further ordered that the petitioner's application to videotape the proceedings, on consent of respondent, is granted. The court directs that the videotape procedure shall preclude the presence of any camera operator in the examination room and must employ a stationary videotape device as well as any accessory audio equipment. It is further ordered that the parties shall share equally in the cost of creating a post-examination stenographic record of the videotaped examination.

The Court read and considered the following documents upon these applications:

PAGES NUMBERED

1.Notice of Motion.........................1-2

Affirmation-Seevers.................1-6

Exhibits............................A-B

Memorandum of Law...................1-18

2.Memorandum of Law in Opposition..........1-14

3.Reply Memorandum of Law..................1-15

Exhibits............................A-D [*3]

4.Notice of Motion.........................1-2

Affirmation-Ghartey.................1-6

5.Affirmation in Opposition-Darrow.........1-7

Exhibit.............................A

The parties' attorneys are directed to appear on November 19, 2007 at 2 p.m. for a pretrial conference for the specific purpose of rescheduling the trial of this petition. No adjournments shall be granted without leave of the court.

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

November 7, 2007

ENTER

HON. JAMES D. PAGONES, A.J.S.C.

TO:

110507 decision & order