State v. Hunter , 953 N.Y.S.2d 795 ( 2012 )

Appeal from an order of the Supreme Court, Monroe County (Ann Marie Taddeo, J.), entered June 30, 2011 in a proceeding pursuant to Mental Hygiene Law article 10. The order, among other things, determined that respondent is a dangerous sex offender requiring confinement and committed him to a secure treatment facility.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Respondent appeals from an order entered following a jury trial that, inter alia, determined that he is a dangerous sex offender requiring confinement pursuant to Mental Hygiene Law article 10 and committed him to a secure treatment facility. Respondent contends that Supreme Court erred in denying that part of his pretrial motion requesting that the report of a court-appointed psychiatric examiner be provided to the court and the Attorney General only in the event that respondent decided to call the examiner as a witness at trial. According to respondent, such a disclosure would violate his right to due process and equal protection. We reject that contention. Mental Hygiene Law § 10.06 (e) provides that, any time after the filing of a sex offender civil management petition and prior to trial, the court shall order an evaluation of the respondent by a psychiatric examiner upon the respondent’s request. The statute further provides that, “[Hollowing the evaluation, such psychiatric examiner shall report his or her findings in writing to the respondent or counsel for the respondent, to the attorney general, and to the court” {id. [emphasis added]). We conclude that respondent did not meet his burden of establishing that the statute is unconstitutional beyond a reasonable doubt (see generally Dalton v Pataki, 5 NY3d 243, 255 [2005], rearg denied 5 NY3d 783 [2005], cert denied 546 US 1032 [2005]). Indeed, the statute goes beyond the due process required in a civil confinement proceeding inasmuch as a respondent is entitled to the appointment of a psychiatric examiner simply upon request and without a showing of necessity (cf. Goetz v Crosson, 967 F2d 29, 36-37 [1992]). Respondent failed to preserve for our review his further contention that his privilege against self-incrimination was violated and, in any event, that contention is without merit (see § 10.08 [a]).

We reject respondent’s contention that the admission in evidence of testimony from his criminal trial at this civil proceeding violated his right of confrontation. Mental Hygiene Law § 10.08 (g) specifically allows the admission of such evidence, and the right of confrontation applicable in criminal cases does not apply to this civil proceeding (see Matter of State of New York v Wilkes [appeal No. 2], 77 AD3d 1451, 1451-1452 [2010]). Finally, contrary to respondent’s contention, petitioner established by clear and convincing evidence that respondent has an inability to control his behavior such that he “is likely to be a danger to others and to commit sex offenses if not confined” (§ 10.07 [f]). Present — Centra, J.E, Peradotto, Lindley, Sconiers and Martoche, JJ.