IN RE: STATE of New York

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IN RE: STATE of New York, respondent, v. ROBERT F. (Anonymous), appellant.

Decided: January 15, 2014

PETER B. SKELOS, J.P., PLUMMER E. LOTT, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ. Mental Hygiene Legal Service, Mineola, N.Y. (Lesley DeLia of counsel; Laura Rothschild and Timothy M. Riselvato on the brief), for appellant. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek, Patrick J. Walsh, and Jason Harrow of counsel), for respondent.

In a proceeding pursuant to Mental Hygiene Law article 10 for the civil management of Robert F., a sex offender allegedly requiring civil management, Robert F. appeals from (1) an order of the Supreme Court, Kings County (Garnett, J.), dated June 1, 2012, which, upon a finding, made after a jury trial, that he suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i), and upon a determination, made after a dispositional hearing, that he is a dangerous sex offender requiring civil confinement, in effect, granted the petition and directed that he be committed to a secure treatment facility for care, treatment, and control until such time as he no longer requires confinement, and (2) a resettled order of the same court dated June 11, 2012, granting the same relief.

ORDERED that the appeal from the order dated June 1, 2012, is dismissed, without costs or disbursements, as that order was superseded by the resettled order dated June 11, 2012; and it is further,

ORDERED that the resettled order dated June 11, 2012, is affirmed, without costs or disbursements.

The appellant, born in 1957, is a recidivist sex offender with multiple sexual offenses and related criminal convictions stretching back nearly 40 years. In May 2005, the appellant was sentenced to a five-year term of imprisonment on his latest conviction of sexual abuse in the first degree. The instant proceeding was commenced in May 2009. After a trial, a jury found that the appellant suffers from a mental abnormality (see Mental Hygiene Law § 10.03 [i] ).

The matter proceeded to a dispositional hearing without a jury. At that hearing, the appellant disclosed that the victim of a 1974 rape of which he was convicted had been a stranger. Over the appellant's objection, the State was permitted to recall its expert witness to testify by live video that she would have increased her assessment of the appellant's recidivism risk score by one point had she been aware of that fact concerning the 1974 rape when she performed her analysis. Following the hearing, the appellant was confined to a secure treatment facility.

The appellant does not challenge the jury's finding that he suffers from a mental abnormality. Rather, he argues that the dispositional order should be vacated because the Supreme Court erred in permitting the State to recall its expert witness to offer additional testimony after the appellant presented his defense, and by admitting the expert testimony by live video.

Contrary to the appellant's contention, the hearing court did not improvidently exercise its discretion in permitting the State to present limited additional testimony from its expert at the dispositional hearing (see CPLR 4011; Feldsberg v. Nitschke, 49 N.Y.2d 636, 643–644; Bennett v. Henry, 39 AD3d 575, 576; Atlas Refrigeration–Air Conditioning, Inc. v. Lo Pinto, 33 AD3d 639, 640; Kay Found. v. S & F Towing Serv. of Staten Is., Inc., 31 AD3d 499, 501; Frazier v. Campbell, 246 A.D.2d 509).

Further, in the absence of an explicit prohibition, the trial court has the discretion to utilize live video testimony pursuant to its inherent power to employ innovative procedures where “necessary to carry into effect the powers and jurisdiction possessed by it” (Judiciary Law § 2–b[3]; see People v. Wrotten, 14 NY3d 33, 37–38, cert denied ––– U.S. ––––, 130 S Ct 2520 [2010] ). The limited use of that power in the instant case was not an improvident exercise of discretion. In addition, it did not violate any constitutional right of the defendant (see People v. Beltran, 110 AD3d 153, 161), especially since the proceeding was civil in nature (see Matter of State of New York v. Floyd Y., 22 NY3d 95, 2013 N.Y. Slip Op 07653 [2013] ).

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