Matter of State of New York v R.H.

[*1] Matter of State of New York v R.H. 2008 NY Slip Op 52249(U) [21 Misc 3d 1127(A)] Decided on November 5, 2008 Supreme Court, New York County Conviser, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through May 4, 2009; it will not be published in the printed Official Reports.

Decided on November 5, 2008
Supreme Court, New York County

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

against

R.H., Respondent, For Commitment Under Article 10 of the Mental Hygiene Law.



002826-2008

Daniel P. Conviser, J.

The State in this proceeding for sex offender civil management pursuant to Article 10 of the Mental Hygiene Law moves for an order granting the right to videotape a psychiatric examination of the Respondent by a psychiatric examiner designated by the State. That motion is opposed by the Respondent. For the reasons stated below, the State's motion is denied.

In two other cases arising under Article 10 of the Mental Hygiene Law, this Court ruled that the State did not have the right to be present or the right to videotape an examination conducted by a psychiatric examiner designated by the Respondent. See State v. F.Y., Index No. 30061-08 (New York County Supreme Court, July 9, 2008); State v. B.E. Index No. 30049-08 (New York County Supreme Court, July 24, 2008). The issue in this case is distinguishable from the issue addressed in those two unrelated matters because here, rather than seeking the right to videotape or be present at a psychiatric examination conducted by an expert designated by the Respondent, the State seeks the right to videotape (but not the right to be present) at an evaluation by an examiner designated by the State.[FN1]

Trial courts which have considered this issue have reached differing conclusions. Petitioner cites the following trial court decisions in which the right to videotape has been authorized: Matter of James Morrison, Index No. 28701-07 (Supreme Court, Suffolk County June 9, 2008) (Pitts, J.); Matter of Juan Aleman, Index No. 216-2008 (Supreme Court, Bronx County June 13, 2008) (Riviezzo, J.); State v. Soto, 20 Misc 3d 679 (Bronx County 2008); Matter of Luis Pedraza, Index No. 24026-2007 (Supreme Court, Suffolk County January 28, 2008 (Pines, J.); Matter of Michael Decker, Index No. SOMTA CNo.3159 (Supreme Court, Monroe County October 25, 2007) (VanStrydonck, J.); Matter of Craig Bourque, Index No.07-[*2]11743 (Supreme Court, Westchester County October 18, 2007) (Bellatoni, J.); State of New York v. Jose Perez, CA2007-002783, Consec. No.. 151425 (Supreme Court, Kings County April 16, 2008) (Dowling J.); State of New York v. Charles Sims, SC No.25-2008, (Supreme Court, Kings County May 30, 2008) (Dowling, J.); and State of New York v. Andre Lane, SP No. 54-2008 (Supreme Court, Kings County July 25, 2008) (Dowling, J.).[FN2]

Petitioner argues that, even though Article 10 of the Mental Hygiene Law provides no explicit authority to videotape psychiatric examinations, the Court has the authority to order videotaping as part of the general powers it has to make discovery rulings, that preserving a record of the psychiatric examination would help both parties prepare for trial and enhance the truth finding process and that Respondent has not provided any expert opinion on which the Court could base a ruling that a videotape would impair Respondent's participation in a psychiatric examination. Petitioner also argues, correctly in the Court's view, that the weight of trial court authority in this state currently allows videotaping. This is particularly true where such videotaping is proposed for a psychiatric examination conducted by a petitioner's rather than a respondent's examiner.

As the Court noted in its decision in State v. F.Y., supra, Article 10 gives psychiatric examiners significant discretion in the manner in which they conduct examinations. See M.H.L. § 10.08(b). Here, there is no indication that the State's psychiatric examiner has expressed any objection or concern about videotaping. The fact that the instant examination would be conducted by the petitioner's designated expert and that this expert apparently has no objection to that procedure, in the Court's view, also argues in favor of granting Petitioner's motion here.

Respondent opposes Petitioner's motion here, in part, because of an asserted concern that once a videotape is made, it could then be introduced at trial and that the introduction of such evidence would be improper. The Court agrees with the Petitioner that this speculative concern should not be a factor in the Court's decision here. Petitioner here is not seeking to make use of any videotape of the instant examination at trial and if such a motion were ever made in the future, a trial court presiding over an Article 10 trial would obviously be able to make a proper ruling with respect to that issue.

A number of courts have also denied requests to videotape examinations under Article 10. See e.g., State v. J.A., Index No. 543665-07 (Supreme Court, Erie County, January 2, 2008 (Michalski, J.); State v. Ali, Index No. 543665-07 (Supreme Court Erie County, January 2, 2008 (Michalski, J.); State v. K.C., Index No. 6159-07 (Supreme Court, Dutchess County, March 20th, 2008)(Dolan, J.); State v. Rosado, 20 Misc 3d 468 (Bronx County 2008); State v. F.Y. supra; State v. B.E. supra. Courts which have denied videotaping requests have focused on the fact that Article 10 does not authorize such videotaping, have in some decisions noted that the participation of a respondent in a psychiatric examination might be chilled by the presence of video cameras and have questioned whether videotaping is necessary to properly preserve a record of an examination. [*3]

The Court is denying the State's motion here for several reasons. First, as has been often times noted in the case law, Article 10 makes no provision for the videotaping of an examination of the Respondent. Article 10 contains a number of discovery provisions. M.H.L. § 10.06(d) authorizes psychiatric examinations by experts chosen by petitioners and directs that reports based on those examinations be forwarded to the respondent, the Attorney General and the Court but does not explicitly provide the State with the right to be present or the right to videotape such examinations.

It is also noteworthy in this regard that in other contexts in which criminal or civil litigants are entitled to videotape or be present at an examination before a trial, that right is expressly provided by statute. See State v. Rosado, supra, (denying the State the right to videotape or be present at an examination by an expert designated by the Respondent and noting that statutes explicitly authorize district attorneys to be present at psychiatric evaluations of criminal defendants and civil litigants the right to videotape examinations before trial).

Second, the Court does not believe that any compelling rationale exists to videotape Respondent's examination. The expert who examines the Respondent in this case will obviously be able to write a report, take notes and testify concerning all of the aspects of his examination.

Finally, the Court believes that Article 10 examinations should not be videotaped absent legislative authorization because of the effect such videotaping might have on the behavior of respondents being examined. Article 10 psychiatric evaluations are invariably one of the key pieces of evidence relied upon by courts in making probable cause determinations and juries or courts in making the ultimate determination of whether or not a respondent should be subject to civil management—a finding which may result in lifetime confinement. Those evaluations require examiners to make assessments which are based not only on the words a respondent says but on the nuances of how the respondent presents himself. Under those circumstances, any outside influence on the behavior of a respondent has the potential to have a material impact on an Article 10 evaluation and thus an Article 10 disposition.

In the view of this court, it is obvious that the presence of a camera recording the words and actions of a person who is in the midst of a psychiatric examination which is intended to explore the deepest recesses of that person's mind may have a material impact on the behavior of that person during that interview. Respondent, in this case, has submitted a 2007 "Statement on Third Party Observers in Psychological Testing and Assessment: A Framework for Decision Making" prepared by the Committee on Psychological Tests and Assessment of the American Psychological Association. The Statement discusses the complex and significant issues which arise when third party observers or audio-visual recordings are present or used in psychological interviews and discusses how an interviewee's behavior may be modified by the presence of such observers or recordings. For the purposes of this decision, the Court does not credit any of the specific findings of that Statement.

The Statement, however (which is noted to have been more than 7 years in the making) is evidence of what, in this Court's view, is an obvious fact—that the presence of a camera in a probing examination of the inner workings of a person's psyche, an examination which will, in turn, play a key role in determining whether that person will live at liberty or be confined or supervised for an indefinite term is not in any sense an innocuous or neutral occurrence. It is rather an issue which implicates significant policy concerns and, in this Court's view, should [*4]properly be the province of the legislature.

In State v. Rosado, supra, the Court reached a similar conclusion, albeit based on a more significant record than is present here. In Rosado the Respondent submitted an affidavit from the proposed psychiatric examiner in which he opined that a videotaping of the examination would negatively impact on the Respondent's ability to participate in the examination. The Court in Rosado held that the "respondent has demonstrated a genuine risk that the presence of a videographer . . . would adversely affect said evaluation.". 20 Misc 3d at 470.

The policy questions concerning whether or not cameras should be permitted in proceedings conducted in connection with judicial determinations is, obviously, not unique to Article 10 of the Mental Hygiene Law. In connection with judicial determinations, the most significant public and political debate which has arisen involving audio-visual recordings over the past twenty years has concerned the question of whether court proceedings themselves may be videotaped. New York Civil Rights Law § 52 prohibits the videotaping of court proceedings. Beginning in 1987, with the enactment of Judiciary Law § 218, the legislature authorized an experimental program to provide for the audio-visual coverage of court proceedings with a number of specific restrictions and extended that authority on four occasions until the statute was allowed to "sunset" on June 30, 1997, at which time the restrictions of Civil Rights Law § 52 again became fully applicable. At the time of the statute's sunset in 1997, one of the most significant issues before the legislature, as has arisen here, was the question of the extent to which the behavior of participants in trial proceedings including witnesses, jurors and judges, might be affected by audio-visual coverage.[FN3]

In upholding the constitutionality of New York Civil Rights Law § 52, the Court of Appeals observed in 2005 that "[i]n New York State, the decision whether or not to permit cameras in the courtroom is a legislative prerogative. . . . We will not circumscribe the authority constitutionally delegated to the Legislature to determine whether audiovisual coverage of courtroom proceedings is in the best interest of the citizens of this state". Courtroom Television Network LLC v. State of New York 5 NY3d 222, 233 (2005).

The "Cameras in the Courts" question addressed by the Court of Appeals in Courtroom Television Network LLC is obviously distinguishable from the issue here. The basic principle articulated by the Court in that case, however, in the view of this Court, is the same principle which should be applicable here—that the legislature should determine whether Article 10 evaluations may be videotaped. In the absence of any such authorization, in the view of this Court, trial courts are without authority to order the audio-visual recording of Article 10 evaluations. [*5]

This constitutes the decision and order of this Court.

Dated: New York, New York________________________

November 5, 2008Daniel P. Conviser, A.J.S.C. Footnotes

Footnote 1: Under Article 10 of the Mental Hygiene Law, the petitioner has the right to have the respondent evaluated by a psychiatric examiner designated by the petitioner and the respondent has the right to have a respondent examined by a psychiatric examiner designated by the respondent. See M.H.L. §§ 10.06(d) and (e) respectively.

Footnote 2: Petitioner also cites State v. Hall, 17 Misc 3d 1124(A) (Dutchess County 2007) as a case which allowed videotaping of an Article 10 psychiatric examination, although in Hall, unlike the instant matter, Respondent consented to such videotaping.

Footnote 3: See An Open Courtroom Cameras in New York Courts, New York State Committee to Review Audio-Visual Coverage of Court Proceedings", Fordham University Press, 1997. The Committee was created by the legislature to review the statutory authorization for the audio-visual coverage of court proceedings and recommend whether it should be continued at the time of the law's sunset in 1997. The majority of the Committee, in the above-referenced report, recommended continuing such statutory authorization and the majority and a minority report extensively addressed the question of whether there was evidence that audio-visual coverage of court proceedings affected the behavior of trial participants.