Matter of State of New York v Germano
Annotate this CaseDecided on January 27, 2014
Supreme Court, Dutchess County
In the Matter of the Application of State of New York, Petitioner,
against
Dean Germano, Respondent.
7293/12
Petitioner is represented by the Attorney General's Office. Respondent is represented by the Mental Hygiene Legal Service.
Peter M. Forman, J.
In this proceeding pursuant to Article 10 of the Mental Hygiene Law, Petitioner seeks a determination that Respondent is a dangerous sex offender requiring confinement in a secure treatment facility. On November 15, 2013, a mistrial was declared after a jury was unable to reach a unanimous verdict on the issue of "mental abnormality". Jury selection in the re-trial of this [*2]proceeding is scheduled to commence on March 17, 2014.
Prior to the original Article 10 trial, Respondent moved to preclude any evidence or testimony relating to two alleged incidents from 1981 and 1984. Specifically, although Respondent was arrested and charged with sex crimes relating to both of those incidents, those cases were ultimately dismissed and the records sealed pursuant to CPL §160.50. Therefore, Respondent moved to preclude the introduction of any evidence or testimony about those dismissed charges at his Article 10 trial.[FN1]
By Decision and Order dated October 31, 2013, this Court granted Respondent's motion to preclude with respect to the 1981 incident, but denied Respondent's motion with respect to the 1984 incident. That Decision and Order contains a detailed discussion of the information that has been provided by the parties regarding both incidents. That Decision and Order also thoroughly explains the Court's decision to allow expert testimony regarding the 1984 incident, while precluding any testimony or evidence relating to the 1981 incident.
Respondent now moves for leave to renew that portion of his motion which sought to preclude expert testimony regarding the 1984 incident. Respondent seeks this relief based on the Court of Appeals decision in Matter of State of New York v. Floyd Y., 22 NY3d 95 (2013), which was handed down after a mistrial was declared in Respondent's original Article 10 trial.
For the reasons stated herein, Respondent's motion for leave to renew is granted. Upon such renewal, Respondent's motion to preclude expert testimony regarding the 1984 incident is denied.
DISCUSSION
It is well-settled that "Mental Hygiene Law article 10 does not limit the proof to acts that resulted in criminal convictions when considering the issue of mental abnormality." [Matter of State of New York v. Timothy JJ, 70 AD3d 1138, 1143 (3d Dept. 2010). See also Matter of State of New York v. Mark S, 87 AD3d 73, 78 (3d Dept. 2011); Matter of State of New York v. Shawn X, 69 AD3d 165, 1143 (3d Dept. 2010)]. Consistent with this overarching statutory scheme, reviewing courts have permitted the State to introduce evidence regarding "uncharged and unproven acts of sexual abuse" [Matter of State of New York v. Fox, 79 AD3d 1782 (4th Dept. 2010)], as well as charges that were dismissed for reasons other than a lack of evidence. [Matter of State of New York v. Schraenkler, 108 AD3d 1087, 1088 (4th Dept. 2012); Matter of State of New York v. Cerrick FF, 99 AD3d 1066, [*3]1068 (3d Dept. 2012)]. But as noted in this Court's October 31, 2013 Decision and Order [pp. 7-8]: While it is true that evidence of dismissed charges may be admissible at an Article 10 trial under certain circumstances, that broad statutory authority is not unlimited. Specifically, Petitioner must still makesome showing that the allegations underlying thatdismissed charge have sufficient probative value, and that they are not unduly prejudicial.
Applying these principles, this Court concluded that the information that has been provided about the 1981 incident lacks sufficient reliability to permit its introduction at trial through expert testimony. [pp. 8-9]. However, this Court also concluded that the information that has been provided about the 1984 incident does not suffer from these same infirmities, and that it is sufficiently reliable and probative to permit expert testimony about that incident. [pp. 9-10].
Four days after Respondent's Article 10 trial ended in a mistrial, the Court of Appeals decided Matter of State of New York v. Floyd Y., 22 NY3d 95 (2013). That decision squarely addresses the question of "whether, and to what extent, a court may admit hearsay evidence when it serves as the underlying basis for an expert's opinion in an article 10 proceeding." [id. at 98]. Because the Floyd Y. decision clarifies the decisional law regarding the use of hearsay evidence by experts in Article 10 trials, particularly with respect to uncharged crimes and dismissed criminal charges, Respondent's motion for leave to renew his preclusion motion is granted. [Dinallo v. DAL Electric, 60 AD3d 620, 621 (2d Dept. 2009); Eisenstein v. Bd. of Managers of Oaks at La Tourette Condominiums Sections I-IV, 43 AD3d 987, 987-88 (2d Dept. 2007)].
In Floyd Y.,the Court of Appeals acknowledged that an Article 10 respondent is not entitled to the constitutional protections that apply to criminal proceedings under the Fifth and Sixth Amendment. Rather, because an Article 10 proceeding is civil in nature, the use of hearsay evidence by expert witnesses must be analyzed under the substantive and procedural due process protections afforded by the Fifth and Fourteenth Amendments. [Floyd Y. at 103-04].
Applying this constitutional rubric, the Court of Appeals noted that "article 10 provides for a host of procedural protections," including the right to counsel, the right to a jury trial conducted under the rules of evidence, and the requirement that the State satisfy its burden of proof by clear and convincing evidence. [id. at 105]. The Court also observed that "article 10 does not explicitly limit the hearsay testimony of experts even though it essentially envisions a battle of the [*4]experts' to determine whether the respondent has a mental abnormality." [id. at 105-06].
The Court of Appeals concluded that a "requirement that evidence meet a test of reliability and substantial relevance is necessary to protect the important liberty interests at stake in article 10 proceedings." [id. at 106]. However, the Court also recognized that, "in the civil context, reliability can be assured in many ways. The Due Process Clause has no inflexible standard for judging reliability, and substitutes for live confrontation are acceptable even in proceedings that implicate liberty." [id. at 106]. Therefore, the Court of Appeals eschewed an unnecessarily rigid approach that "would undermine the truth-seeking function of an article 10 jury by keeping hidden the foundation for an expert's opinion." [id. at 107]. Specifically, the Court observed [id. at 107-108]: basis hearsay does not come into evidence for its truth, but rather to assist the factfinder with its essential article 10 task of evaluating the expert's opinions. In order to assess an expert's testimony, the factfinder must understand the expert's methodology and the practice in the expert's field... Understanding [the expert's] diagnosis and her treatment of [respondent] requires understanding the information she considered when making her diagnostic and treatment decisions... Factfinders in article 10 trials cannot comprehend or evaluate the testimony of an expert without knowing how and on what basis the expert formed an opinion.To the extent that a factfinder's assessment might turn on its acceptance of basis evidence as true, article 10 provides the respondent with an opportunity to challenge the State's expert by presenting a competing view of the basis evidence through the testimony of the respondent's expert. Moreover, the court can instruct the jury about the proper consideration due the basis evidence.
After reviewing the approach taken in a significant number of jurisdictions, the Court of Appeals concluded that "a flexible approach that allows the admission of hearsay but requires courts to make an independent reliability assessment... protects the substantial liberty interests of respondents." [id. at 108-109]. Therefore, the Court held that expert testimony regarding hearsay evidence will be admissible in Article 10 trials upon a demonstration that: (1) the evidence is reliable; and (2) its probative value in helping the factfinder evaluate the expert's opinion substantially outweighs its prejudicial effect. [id. at [*5]109].
With respect to reliability, the Court of Appeals stated that hearsay evidence of accusations that resulted in an acquittal "cannot provide the basis for reliability... absent some other basis to substantiate them." [id. at 110]. The Court of Appeals also stated that hearsay evidence regarding uncharged crimes is not reliable if the underlying accusations were not supported by extrinsic evidence or otherwise substantiated by law enforcement authorities. [id. at 110]. Finally, the Court of Appeals cautioned that the reliability of "criminal charges that resulted in neither acquittal nor conviction require close scrutiny." [id. at 110].
The expert witness in Floyd Y. testified that respondent had committed acts of sexual abuse against nine individuals. Although respondent's sexual abuse of four of these individuals resulted in convictions, the remaining acts of alleged sexual abuse were the subject of unproven accusations.
The Court of Appeals concluded that three of these unproven accusations were unreliable, and that the State's expert witness should not have been permitted to provide testimony at trial about these accusations.Those accusations included an allegation of sexual abuse involving an 8-year old child that ended in an acquittal. Those accusations also included two alleged instances of sexual abuse involving an 8-year old and a teenager, respectively. Neither of these accusations resulted in the filing of criminal charges, and neither was supported by respondent's admissions or by any extrinsic evidence.
The Court of Appeals deemed the two remaining unproven accusation to be reliable. Specifically, the Court of Appeals deemed an accusation that respondent had engaged in inappropriate telephone conversations with his 17-year-old sister-in-law to be reliable — even though no charges had ever been filed — because respondent had admitted to having those conversations. The Court of Appeals also stated that the trial court could properly conclude that this reliable basis hearsay was substantially more probative than prejudicial based upon the affidavit provided by the 17-year-old victim.
The Court of Appeals also deemed an accusation that respondent had committed acts of sexual abuse against a 15-year-old girl to be reliable — even though the formal charges were dropped — because respondent agreed to stay away from the girl as a condition of the dismissal of those charges. However, unlike the uncharged allegations involving respondent's 17-year-old sister-in-law, there was no sworn statement from the 15-year-old victim to facilitate a determination as to whether the probative value of those accusations substantially outweighed its prejudicial effect. Therefore, in the absence of such a sworn statement, the Court of Appeals stated that the trial court [*6]"should have taken care to ensure that [these allegations] were substantially more probative than prejudicial." Specifically, the Court of Appeals observed that, "in such a case, the better course would have been to require live confrontation of the declarant to ensure the statement's reliability."[FN2]
Applying these principles to Respondent's upcoming Article 10 re-trial, the Court concludes that the proffered basis hearsay regarding the 1984 incident is sufficiently reliable. Specifically, while the 14-year-old complaining witness ("KP") did not initially disclose the details relating to this incident when she was questioned by her mother and by the police in the first few hours after she was raped, her initial reluctance to reveal these graphic details is not surprising. Nor does her hesitation impair the reliability of the information KP provided two days later, which was subsequently corroborated in part by the results of the forensic tests conducted by the State Police lab. In addition, an adequate explanation has been provided for the decision not to conduct a rape kit test at the Saint Francis Hospital emergency room. And KP's desire to avoid testifying at Respondent's criminal trial does not suggest that he did not commit that crime. Rather, as she explained in her notarized written statement, KP and her family made that decision because they were afraid that testifying would cause her to suffer additional trauma.
The Court also concludes that the probative value of this reliable basis hearsay substantially outweighs its prejudicial effect. Allowing Petitioner's expert to testify about the 1984 incident will assist the jury in its essential article 10 task of evaluating the expert's opinion by permitting intelligent consideration of the underlying basis for the expert's opinion. The Court will provide appropriate limiting instructions at trial about the proper consideration that the jury may give to this testimony.
This determination is based upon, inter alia, the sworn written statement that KP provided to police on November 27, 1984, two days after the alleged rape. This determination is also based on KP's October 18, 2013 statement confirming that the information that she provided to the police two days after the incident was truthful, and explaining that she and her family had decided that she would not testify because they believed that she "was likely to be mistreated by the legal system, compounding the trauma that I have already experienced." It is therefore
ORDERED, that Respondent's motion for leave to renew his [*7]motion to preclude expert testimony regarding the 1984 incident is granted; and it is further
ORDERED, that upon such renewal, Respondent's motion to preclude expert testimony regarding the 1984 incident is denied.
The foregoing constitutes the Decision and Order of this
Court.
Dated: January 27, 2014
Poughkeepsie, New York
_____________________________
Hon. Peter M. Forman
Acting Supreme Court Justice
Footnotes
Footnote 1: By Decision and Order dated September 24, 2013, the Court granted Petitioner's motion to unseal law enforcement and court records relating to the 1981 and 1984 incidents.
Footnote 2: The Court of Appeals concluded that the failure to preclude the expert from testifying about unreliable allegations of sexual abuse involving two 8-year-old girls was not harmless error.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
