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Three appeals are before the court for resolution,

Three appeals are before the court for resolution, viz.: People v. Leisen, People v. Bailey and People v. McCraw. The primordial issue presented by these three appeals is whether the defendants, who were sentenced to one day to life for various sex offenses, were entitled to a hearing prior to the imposition of sentence. The resolution of this issue depends in turn upon the applicability of the Supreme Court decision in the case of Specht v. Patterson. There, the court held that the sentencing procedure outlined in the statutes of the State of Colorado was constitutionally defective in failing to provide a defendant with an opportunity to be heard and be confronted with evidence prior to the imposition of an indeterminate sentence of one day to life.

Under the Colorado statutes, like the New York statutes, the imposition of the one-day-to-life sentence is authorized as an alternative to the ordinary sentence prescribed for various sex offenses. The court is authorized to impose sentence after guilt of an underlying sex crime is established if the court is of the opinion that the defendant, if at large, constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill. Prior to the imposition of the sentence the statute requires that the defendant be given a complete psychiatric examination and that a complete written report be submitted to the sentencing Judge, containing all facts and findings, together with recommendations with regard to whether the defendant is treatable under the provisions of the sex offender statute or whether he should be civilly committed. The court is not, however, bound by the findings in the psychiatric report and can base its conclusion on the entire record.

In holding that the Fourteenth Amendment requires a hearing, the Supreme Court’s basis was that, under the Colorado procedure, the mere commission of the underlying sex crime was by itself insufficient to justify the one-day-to-life sentence but rather an additional finding was mandated, namely, that the defendant constitutes a threat of bodily harm to the public, or is an habitual offender or mentally ill. The defendant, the Supreme Court held, was entitled to a hearing on this new finding of fact that was not an ingredient of the offense charged. In other words, the applicability of the case of Specht v. Patterson to the New York sex offender statute is dependent on whether the sentencing Judge has absolute discretion to sentence a sex offender to the alternative one-day-to-life sentence or whether, like the procedure under the Colorado statute, the Judge’s discretion to sentence in such a manner is limited to those cases in which the record supports a new finding of fact that was not an ingredient of the offense charged.

According to the People and as accepted by the Appellate Division, the sentencing court has complete discretion to sentence for one day to life. A literal reading of the New York statutory scheme might lend support to this argument. An examination of the statutory purpose as well as the weight of judicial authority indicate that the discretion of the sentencing Judge to mete out a one-day-to-life sentence is limited to those cases in which the record indicates some basis for a finding that the defendant is a danger to society or is capable of being benefitted by the confinement envisaged under the statutory scheme. Absent such a basis, the sentence cannot stand.

In the case of People v. Jackson, which is the earliest and possibly the leading case in this area, the defendant was convicted of a specified sex crime and received an indeterminate one-day-to-life sentence. There, after serving 11 years the defendant succeeded in having the sentence vacated; upon remand, the defendant received a one-day-to-life sentence and it was the imposition of this sentence which the defendant appealed; and the record indicated that, during the 11 years of his confinement, the defendant had not received any psychiatric care and there was nothing in the record to justify a finding that the defendant was a danger to society if released. In that case, the Presiding Justice of the Appellate Division of the Third Department first proceeded to examine the history and purpose of the statute. Apparently, the statutory scheme dealing with criminal sex offenders was based upon a comprehensive study which envisioning a flexible form of sentencing which would provide the prisoner with rehabilitative treatment and permit the Parole Board to release him when it believed that he was no longer a danger to society. The court then held that it was envisioned, as the title of the statute itself suggests, that treatment was an integral and essential part of a program to be followed in the penal system; and where the criminal offender could be treated with some reasonable chance of improvement, it was contemplated that under a sentence so flexible, that it might last for his natural life, he would be able to receive adequate treatment and would be discharged if improved to the extent it would be safe to release him. As a necessary concomitant of this public policy, of course it was realized that some offenders would not yield to any treatment and that when such cases were clearly identified and professionally evaluated, it would be expected that the dangerous offenders be held until the situation changed. Sometimes this would be for their whole lives. The reason for this was not because life imprisonment was believed a just treatment, but because no other reasonably safe alternative could be found. It was not contemplated that a criminal offender be held for many years without treatment and without some sound professional basis for believing that during all of this period it would be unsafe to release him. Subsequently, after ordering a psychiatric report, the Appellate Division held that a one-day-to-life sentence would be improper because the report indicated that the defendant would not be benefited by such a sentence and that he was not a danger to society. The reasoning in this case has been followed in several subsequent cases.

In addition, courts have been scrupulous in requiring compliance with section 2189-a of the former Penal Law, Consol. Laws. That statute provides, as the Colorado statute did, that no person shall receive an indeterminate sentence for one day until a psychiatric examination shall have been made of the person convicted and a complete written report thereof shall have been submitted to the court.

In the case of Lawson v. Denno, the court held that such a report must be current and pertinent to the statutory purpose. This means, as the several departments of the Appellate Divisions have held, that the report should discuss and analyze the defendant’s sexual problem and whether such condition was of a type which would yield to treatment. The report is inadequate if it does not state the risk to society involved in the defendant’s immediate release, with or without treatment, and defendant’s potential for responding to treatment. While the court have, in effect, held that the sentencing Judge is not bound by the findings contained in the psychiatric report, provided that there is other evidence in the record to sustain a finding that the sentence conforms to the purpose of the sex offender statute, the court have never held, nor to its knowledge has any appellate court in the State held, that a person may receive a one-day-to-life sentence where the record is barren of any evidence to support a conclusion that he is a danger to society or is capable of being benefited by special treatment envisioned under the statutory scheme. This requirement that, in addition to the proof of the underlying sex crime or sex offense, there must be an additional finding of fact independent of the question of guilt before the indeterminate sentence can be imposed clearly brings the case within the ambit of the Specht holding and entitles those sentenced under the statute to a hearing.

Requiring a hearing is based on the most basic concepts of justice and fairness which necessitate that the defendant be given an opportunity to participate in a fact-finding process which could result in his imprisonment for life as opposed to a relatively shorter sentence which would be warranted if the particular facts were not established. The unfairness, implicit in the procedure under which these men were sentenced, results in a continuing violation of their constitutional rights which can be rectified only by vacating their sentence and giving them a hearing. To this extent the case is distinguishable from those cases in which exclusionary rules designed to deter future police conduct were formulated or in which the changes did not affect the integrity or fairness of the fact-finding process. Moreover, since those sentenced under the statute should be receiving psychiatric care and are required to receive a thorough psychiatric examination once every two years and since only resentencing is necessary, compliance with the Specht case will not impose the kind of burden or give rise to the type of prejudice which would result if this was the kind of case where adherence to the new rule required a retrial.

According to the People, since the defendant had notice that the Judge was considering the imposition of a one-day-to-life sentence, a hearing is not required at the time where none was requested prior to sentence. However, the rule is that where a particular change in Federal constitutional law is to be applied retroactively, a State may not, through the use of procedural device, such as the requirement for an exception, deprive a defendant of the benefit of the change. This is especially so when an exception or in this type of case a request for a hearing would have in all likelihood been rejected.

Now, turning to the cases at bar:

In the case of People v. Leisen, the defendant was not afforded a Specht v. Patterson hearing. Thus, the judgment appealed from should be reversed and the defendant remanded for resentencing.

In the cases of People v. Bailey and People v. McCraw, the court need not reach the hearing question, although a reversal would be required on this ground since in both cases the psychiatric reports did not comply with the standards which have been set down under the provisions of section 2189–a of the former Penal Law.

In the case of People v. Bailey, the psychiatric report merely stated that the defendant had a sociopathic personality without a favorable prognosis; the report did not contain any discussion of the defendant’s sexual problems or for that matter did not even state that he had such a problem; nor did the report indicate whether the defendant was likely to engage in any violent sexual misconduct. Clearly, by no standard could this report be said to be pertinent to the statutory purpose of section 2189–a as outlined earlier. Thus, the judgment appealed from should be reversed and the defendant remanded for resentencing.

In the case of People v. McCra, the psychiatric report was likewise defective; the report stated that both the examining psychiatrists opined that the man was suffering from a chronic psychopathic personality disturbance with no insight; there was no indication that he has changed his personality makeup or that he was willing to change his personality makeup; he tried to excuse his past acts or tried to deny them without facing his own faults and misdeeds himself; it is highly improbable that he will change his behavior in facing further circumstances; from this present examination, it can only be determined that he has not and probably will not benefit from experience; he will not benefit from psychiatric treatment since he has had such in the past and has shown no improvement; he has shown behavior dangerous to others in the community in the past; he has shown an inability to resist the use of alcohol and drugs and has shown that when under the influence of alcohol and drugs he commits acts which must be considered both immoral and illegal; thus, he will require a controlled environment in the future for an indeterminate period. Evidently, though not quite as serious as those in the Bailey case, the report suffers from the same defects. Thus, the judgment appealed from should be reversed and the defendant remanded for resentencing.
Accordingly, in People v. Bailey, judgment was reversed and the case was remitted to the Supreme Court of Kings County for resentencing; in People v. Leisen and People v. McCraw, judgments were reversed and the cases were remitted to the Nassau County Court for resentencing.

Free consultations with Nassau County Criminal Defense Lawyers, among others, are now available at Stephen Bilkis & Associates. Contact our office now through our number or visit us at any of our offices. Our Nassau County Sex Crime Attorneys, Nassau County Sex Offender Attorneys, and the like, are at your service.

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