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Court DIscusses Article 19 of NY Mental Hygiene Law

A New York Criminal Lawyer said that this is a proceeding that transpired in January 2010 wherein the court presided over a jury trial conducted under Article 10 of the Mental Hygiene Law to determine whether respondent currently has a mental abnormality as defined by MHL§10.03(i).

On 13 January 2010, the jury returned a verdict that respondent did not have a mental abnormality.

On 14 January 2010, petitioner made an oral application for a motion schedule to set aside the jury’s verdict.

On 16 February 2010, petitioner filed a motion pursuant to CPLR § 4404(a) to set aside the verdict arguing it was against the weight of the evidence, and a new trial should be granted.
On 1 March 2010, respondent filed a response in opposition.

A New York Criminal Lawyer said that the court finds that the jury verdict was against the weight of the evidence. However, for the reasons set forth below, the Court lacks the authority under MHL Article 10 to set aside the verdict pursuant to CPLR § 4404(a).

A Queens Criminal Lawyer said that in 1986, respondent was convicted of Attempted Sexual Abuse in the First Degree for an incident in which he exposed himself to a group of young boys and also tried to disrobe two of them. Respondent was sentenced to five years probation.

During this probation period, respondent was arrested for sexually abusing boys to whom he taught karate. In 1991, respondent pleaded guilty to four counts of Sodomy in the First Degree and was sentenced to an indeterminate term of imprisonment of 8¼ to 16½ years. Although the investigation revealed that respondent had sexually abused as many as ten boys, the prosecution was based on the abuse of a 10-year-old boy forced to perform repeated acts of oral sex on respondent during breaks in karate lessons.

A Nassau County Criminal Lawyer said that while in prison, respondent had disciplinary infractions for possession of publications containing depictions of naked children as well as materials and photographs from an organization created to promote sexual activity between adults and young boys.

Shortly before respondent completed his term of imprisonment, petitioner filed a petition for civil management under MHL Article 10. In January 2010, the court conducted a jury trial pursuant to Article 10 to determine whether respondent currently has a mental abnormality as defined in MHL § 10.03(i).

On 13 January 2010, the jury returned a verdict that respondent did not have a mental abnormality. Petitioner now moves for an order, pursuant to CPLR§ 4404(a), setting aside the verdict and granting a new trial on the ground that the verdict was contrary to the weight of the evidence.

Pursuant to CPLR § 4404(a), petitioner moves for an order setting aside the jury’s verdict and granting a new trial on the ground that the verdict is contrary to the weight of the evidence. Petitioner argues that the evidence presented at trial, overwhelmingly established that respondent has a mental abnormality, pedophelia, within the meaning of MHL § 10.03(i) and that respondent’s pedophelia results in his having serious difficulty controlling his unlawful conduct. Furthermore, although the jury found to the contrary, the court should exercise its authority to set aside that finding and order a new trial.

Relying on Nicastro v. Park, petitioner argues that the Court has the inherent power to set aside a jury verdict and order a new trial when the Court concludes that the verdict is against the weight of the evidence. Petitioner argues that if the Court, after considering the totality of the evidence, concludes that the evidence supports more than one conclusion but overwhelmingly favors the conclusion rejected by the jury, the Court should order a new trial.
Petitioner relies on several Mental Hygiene Law Article 9 and 15 cases where courts have granted CPLR 4404(a) motions as in Matter of Daniel XX and Anonymous v. Carmichael involving liberty interests equivalent to those asserted by respondent.

First, the respondent argues that Article 10 does not authorize this Court to utilize CPLR § 4404(a) to set aside a jury’s verdict of no mental abnormality. Furthermore, even if a CPLR§ 4404(a) motion were authorized in these circumstances, the State’s motion should be denied because the jury’s verdict was not against the weight of the evidence. Respondent argues that this case required the jury to evaluate the credibility of two expert witnesses in deciding if respondent had serious difficulty controlling his unlawful conduct and that determination should not be disturbed.

Respondent points out that none of the cases relied on by petitioner involved an Article 10 trial. Further, no one presented expert testimony on behalf of a respondent. In those cases, the juries found in favor of the patients despite the complete absence of supporting medical testimony. Respondent’s case was instead, a question of competing experts.

Dr. DG was a highly credentialed expert witness with more than ten years experience in evaluating and treating sex offenders. The jury was entitled to credit Dr. DG’s opinion that respondent did not have a mental abnormality over the contrary opinion of Dr. KC. Respondent relied on Cioffi v. Lenox Hill Hospital wherein it was held that verdict may not be set aside as against weight of evidence where fair interpretation of evidence supported jury verdict.
This Court finds that the jury’s verdict was against the weight of the evidence. However, Article 10 does not empower this Court to set aside a jury’s verdict pursuant to CPLR§ 4404(a) and order a new trial.

The evidence at trial clearly established that respondent has a mental disorder, pedophelia, and that he has serious difficulty controlling his unlawful conduct. After considering the totality of the evidence, the court concludes that the verdict was not supported by the evidence.

Dr. KC’s testimony regarding respondent’s long history of sex offenses against children, coupled with respondent’s limited exposure to sex offender treatment, the elaborate schemes he employed to engage boys in sexual contact, his continued reoffending while on probation for earlier sexual crimes against children, his cognitive distortions, and his lack of insight into his sexual urges and the difficulty he will face in controlling them are some of the factors that compel the court to conclude that petitioner has demonstrated by clear and convincing evidence that respondent has serious difficulty controlling his behavior.

Both Dr. KC and Dr. DG were in total agreement that pedophelia is a chronic condition. Further, they shared the opinion that sex offender treatment programs can teach offenders to develop the skills and tools they need to control such behavior. However, Dr. KC testified about the extremely limited sex offender treatment respondent received while in prison. Respondent declined several opportunities for treatment while in prison. When respondent finally agreed to participate in a program, he was removed from the program when he was discovered to possess materials from NAMBLA depicting naked children.

Respondent pleaded guilty in 1991 and went to prison, but did not complete even an initial offender program until fourteen years later in 2005. Furthermore, Dr. KC testified that he was familiar with the specific program and believed that it did not adequately meet respondent’s treatment needs as a high risk sex offender. Dr. KC also testified that he felt that the benefit respondent derived from the treatment program he completed was marginal, and that respondent has not progressed beyond the orientation phase.

Dr. DG testified that he believed that respondent had acquired sufficient tools through sex offender treatment, together with maturity from aging, to control his impulses against children. Dr. DG reached this conclusion despite acknowledging that respondent was in treatment for nine months of a prison sentence which lasted nearly two decades. Dr. DG described the program as nine months of what’s considered cognitive behavioral treatment that involves relapse prevention being at the center of it designed to change an offender’s beliefs, attitudes, and behavior that increase the likelihood of sexual offending.

Dr. DG also testified that before this treatment he would have concluded that respondent suffered from a mental abnormality within the meaning of Article 10, and had serious difficulty controlling his unlawful sexual conduct. He concluded that this nine month program equipped respondent with sufficient personal skills and resources to overcome the chronic impulses of his pedophelia that had dictated his entire adult life.

The court finds respondent’s testimony self-deluding, troubling and insincere. Respondent simplifies and grossly understates this chronic nature of his mental disorder by his assertion that he was going to control his sexual behavior merely by “deciding” not to reoffend. Respondent went on to say that he learned what might be a trigger and would just turn himself off.

The court notes that respondent claimed that after his 1991 conviction, he decided he would change his behavior because he finally realized the harm he was causing his victims. This was before respondent entered into any sex offender treatment program. When respondent first began to serve his prison sentence, he refused to participate in any sex offender treatment program. Five years later, in 1996, respondent again declined an opportunity to obtain treatment stating that he “didn’t need it.” Respondent eventually agreed to participate in a treatment program in prison but was subsequently removed from the program when he was found in possession of materials from NAMBLA depicting naked children. Respondent also admitted being deceitful in his sex offender treatment to make himself seem more remorseful to his counselors. Respondent entered and completed sex offender treatment only in 2005.
The court finds the totality of the trial evidence overwhelmingly established that respondent has a mental abnormality in that he suffers from pedophelia and has serious difficulty controlling his unlawful sexual conduct.

Pursuant to CPLR § 4404(a), petitioner moves to set aside the jury’s verdict on the ground that the verdict is contrary to the weight of the evidence. CPLR § 4404 (a) states that upon the motion of any party, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial where the verdict is contrary to the weight of the evidence.

The court notes that MHL Article 10 is silent with respect to whether a party may move to move to set aside a verdict or whether the court has the authority to grant such a motion pursuant to CPLR § 4404(a). The Legislature did not expressly provide for such a mechanism when drafting Article 10. While the drafters failed to incorporate CPLR § 4404 within MHL Article 10, they did incorporate numerous other provisions of the Civil Practice Law and Rules, as well as the Criminal Procedure Law, into Article 10.

The drafters of Article 10 also incorporated the CPLR when addressing the right to an appeal pursuant to Article 10. MHL§10.13(b) expressly states that the provisions of Article 55, 56 and 57 of the CPLR shall govern appeals taken from orders entered pursuant to Article 10. MHL§10.13(b) further states that both the respondent and the Attorney General “may appeal any final order” entered pursuant to Article 10.

Based on the Legislature’s specific incorporation of various CPLR provisions throughout MHL Article 10, the court observes that its omission with respect to CPLR §4404 strongly suggests the intent not to incorporate it into the framework of the statute. Indeed, the Legislature specifically provided a mechanism by which the Attorney General could challenge an improper verdict he deemed unjust.

MHL§10.13(b) expressly provides that the Attorney General may appeal a final order dismissing a petition following a jury verdict in favor of respondent. Furthermore, the Attorney General may also seek a stay of an order ordering the release of respondent while appealing to the Appellate Division pursuant to Article 10.13(a). Thus, upon its enactment of MHL§10.13(b), the legislature specifically provided for a remedy by which the Attorney General may challenge a verdict. Since CPLR § 4404 was not specifically incorporated within Article 10 unlike Articles 55, 56 and 57 of the CPLR which deal with the appellate process, it must be concluded that, based on its omission, Article 10 does not authorize this Court to set aside a jury verdict pursuant to CPLR § 4404(a).

The court complies with the express language contained in MHL §10.07(e) and dismisses the petition upon the jury’s unanimous verdict in favor of respondent. In the absence of an explicit provision permitting a new trial, this Court must construe the statute in favor of respondent. Since respondent’s liberty interests are at stake.

Based on the foregoing, the court finds that although the jury’s verdict was against the weight of the evidence, it does not have the power under Article 10 to grant a motion pursuant to CPLR § 4404(a).

The court orders that respondent’s Article 10 petition is dismissed.

New York Criminal Lawyers like New York Sodomy Attorneys and New York Sexual Abuse Attorneys at Stephen Bilkis & Associates will gladly entertain questions regarding the case mentioned above. You may contact us at our toll free number or visit us at our office near you. We are at your service.

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