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Defendant Claims Court Abused its Discretion


Appeals from two orders of the Supreme Court were made. The proceedings found the accused man to be a dangerous sex offender and confined him to a secure treatment facility.

A New York Criminal Lawyer said the accused man has an extensive psychiatric and criminal history that includes convictions for two rapes and forcible touching involving three different female victims. At age 23, he was charged with rape in the third degree, sodomy in the third degree and endangering the welfare of a child for having sexual relations with a girl under the age of 17 who was living with him.

According to the victim, they initially had a consensual (but illegal) sexual relationship, but the accused man thereafter repeatedly forced her to have sexual contact with him against her will. The accused man claimed that it was consensual and that he believed she was 17 years old, although he admitted having been advised that she was younger. He entered a guilty plea in satisfaction of all charges, and was sentenced to five months in jail and 10 years of probation. While on probation, the accused was charged with forcible touching for forcibly grabbing the private body parts of an 18-year-old employee of his drywall business. He later entered an Alford plea to that charge and was sentenced to a two-month jail term. After a hearing, New York Criminal Lawyer said the accused man was classified as a risk level III sex offender under the Sex Offender Registration Act. That same month while still on probation, the accused was charged with first-degree rape for an incident in which he went with a friend to a female acquaintance’s apartment and forcibly held her down and raped her in her bedroom where he had lured her by deceiving her into believing that they needed to speak privately. He again was permitted to enter an Alford plea to the proceedings. Although he was released on parole supervision, the accused man’s parole was revoked months later when he was charged with numerous instances of violating the conditions of his release, including having prohibited contact with women and viewing erotic images of women, and admitted to one parole violation charge of exchanging electronic messages with a woman.

Prior to the man’s release from prison, he commenced the Mental Hygiene Law proceeding where he was incarcerated. After a hearing, the court determined that there was probable cause to believe that he is a sex offender requiring civil management and ordered his confinement in a secure treatment facility upon his release from prison, pending a trial. The proceedings were thereafter removed to Clinton County, where the man waived a jury trial and, at the conclusion of a bench trial, the court determined that he suffers from a mental abnormality as defined under Mental Hygiene Law.

At the mental abnormality trial, the man called to testify the authors of the 2004 and 2005 presentence reports prepared prior to his sentencing on the rape convictions. A licensed clinical psychologist and psychiatric examiner with the Office of Mental Health, was also called and testified that he had personally examined the accused man and reviewed all of his psychiatric and social services records dating back to childhood. As well, he reviewed the man’s entire criminal history and all available information, including police reports, reports of uncharged crimes and victim statements, all of which he testified are customarily relied upon in his profession in forming an opinion on mental abnormality. With regard to man’s 2004 past conviction, the psychologist looked beyond the plea terms and considered the details of the underlying offense, including the victim’s account — contained in a supporting deposition — that the man forcibly sexually assaulted her and aware he was causing her pain due to a medical condition. He also considered the man’s account and that of an eyewitness. He explained that while non-convictions are given lesser weight, the details of offenses such as these yield important information about the accused man that is relevant to his diagnosis, predisposition to commit sex offenses and impulsivity. The psychologist diagnosed the man with a depressive disorder and alcohol abuse, as well as an antisocial personality disorder and borderline personality disorder, and he explained how the nature of the man’s sex offenses demonstrated the latter two disorders. A New York Drug Crime Lawyer said he opined that the disorders severely diminish the man’s ability to control impulses and predispose him to commit sex offenses, as exhibited by his commission of sexual abuse while on probation and his escalation in the use of force, all pointing toward his appetite specifically for sexual abuse with non-consenting females. The psychologist concluded that the man suffers from a mental abnormality as defined in Mental Hygiene Law and, at the dispositional hearing, that he is a dangerous sex offender requiring confinement.

The man presented the testimony of a second psychologist who evaluated him and likewise reviewed all of his psychiatric, social services and criminal history records. He concluded that the man does not suffer from a mental abnormality and disagreed with the first psychologist’s diagnoses and conclusions that the diagnoses are predictive of the man’s risk of re-offense and predispose him to reoffend. The second psychologist testified that, while he considered the victims’ accounts of the sex crimes, he limited his opinion only to the convictions of record because he believed it is not his role to resolve conflicting accounts of crimes. He also opined, at the dispositional hearing, that the man is not a dangerous sex offender requiring confinement, based largely on the fact that, while detained at the secure treatment facility, he had not acted out sexually, believing that strict and intensive supervision would adequately address his risk of re-offense.

After a dispositional hearing, Supreme Court determined that the man is a dangerous sex offender requiring confinement in a secure treatment facility in that he suffers from mental abnormalities involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that he is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.

A New York Sex Crimes Lawyer said that on appeal, the man argues that Supreme Court abused its discretion when it allowed into evidence, over his objections, certain documents regarding his criminal history containing inadmissible hearsay, which both psychiatric experts testified they reviewed in forming their opinions regarding his mental abnormality. Specifically, while the man consented to the admission of his Department of Correctional Services records and the records of the secure facility where he was being detained, he objected to the receipt in evidence of the 2004 and 2005 presentence reports that contained the victims’ sworn supporting affidavits, and to his Sex Offender Registration Act (SORA) records and parole revocation records. The testimony and evidence were properly admitted.

Initially, expert testimony based upon hearsay is ordinarily admissible under the professional reliability rule for the limited purpose of informing the fact finder of the basis of the expert’s opinions and not for the truth of the matters related. The court properly admitted the testimony for the limited purpose of aiding its evaluation of the experts’ psychiatric opinions. While the court — in its decision in finding that the man suffers from a mental abnormality — concluded that there was relevant and adequate evidence in the record demonstrating that there was a nonconsensual element to the man’s rapes, recounting facts contained in the victims’ supporting depositions, the court reached the conclusion for the narrow permissible purpose of concluding that the depositions were properly considered in the formulation of professional opinions.

Woman and children are often the victims of crimes. Sometimes, even in their own homes, they don’t feel safe. If you need the assistance of New York Sex Crime Lawyers together with the NYC Criminal Attorneys to fight for the rights of children and women, call the office of Stephen Bilkis and Associates.

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