New York Criminal Law and Procedure

SOMTA is collateral consequence

A plea court is not required to advise a defendant that he may be subject to the Sex Offender Management and Treatment Act (SOMTA), a 2007 law that permits the civil confinement of sex offenders after the completion of their prison terms.  In People v. Harnett (Ct. App. 2/10/2011) (Smith, J.) (5-2), the Court of Appeals concluded that SOMTA is a collateral, rather than a direct, consequence of a guilty plea and, therefore, a defendant need not understand the possibility of SOMTA commitment before he pleads guilty.  Like SORA, which the Court of Appeals held was collateral in People v. Gravino, SOMTA is

is not a penal statute designed to punish a past crime, but a remedial one designed to prevent a future crime (see Gravino, 14 NY3d at 556); with SOMTA, as with SORA, important decisions and recommendations must be made, after the time of the guilty plea, by administrative agencies not under the court's control (see id.); and with SOMTA, even more than with SORA, the consequences of a defendant's plea are far from automatic. Indeed, experience to date indicates that the large majority of people who are "detained sex offenders" as SOMTA defines the term will suffer no consequences from that designation at all.

The court rejected a fairness argument that the defense raised based on a New Jersey case, State v. Bellamy, 835 A.2d 1231 (2003).  But the court noted that Bellamy involved an unusual set of facts.  The defendant pleaded after he had already served most of his sentence.  He was due to be released in two months under the guilty plea.  The state then commenced civil commitment proceedings a week before his release date.  In Bellamy, the appellate court remanded for a motion to withdraw the guilty plea.  The New York Court of Appeals agreed that the facts of Bellamy would probably require a finding of involuntariness, which is why it strongly encouraged trial courts to explain the possible SOMTA consequences of a guilty plea to defendants.  Here, there was no evidence that the defendant's case was like the extreme one of Bellamy.

Judge Ciparick, writing for herself and Judge Jones, dissented.  The dissent drew a distinction between SORA and SOMTA in that the latter requires confinement.  "I believe a defendant cannot be said to knowingly and voluntarily forego his right to trial if he does not know the full extent of confinement that might result from his conviction."  (LC)

EED notice even when defendant is relying on lay testimony

This week, the Court of Appeals unanimously held that the notice requirement of CPL § 250.10 applies even when the defendant intends to rely only on lay testimony to establish the affirmative defense of EED.  This answers a question left open by People v. Smith (Ct. App. 2004).

In People v. Diaz (Ct. App. 6/8/2010) (Graffeo, J.) (7-0), the defendant killed his former girlfriend after she allegedly told him that her child had been fathered by another man.  The defendant was charged with Murder 2º and, just prior to jury selection, informed the court and prosecutor that he intended to assert an EED defense.  The court permitted the late notice in the interest of justice and ordered the defendant to submit to a psychiatric examination by the prosecution's psychiatrist, even though he intended to rely only on his own testimony to establish the defense.

CPL § 250.10 precludes "psychiatric evidence"—a statutory term-of-art that involves any defense based on mental disease or defect, including EED—unless the defendant first serves a timely notice.  In People v. Berk, the court observed, "[I]nasmuch as the notice provision was intended to allow the People an opportunity to obtain any mental health evidence necessary to refute a defense of mental infirmity, it follows that it applies to any mental health evidence to be offered by the defendant in connection with such a defense" (id. at 265 [emphasis in original]).  The reasoning of Berk applies equally to lay testimony.  "The aims of CPL 250.10's notice requirement — preventing unfair surprise and allowing the People an opportunity to obtain evidence from any source, expert or otherwise — are implicated whether a defendant seeks to establish a mental infirmity through expert or lay testimony, whether by the defendant or other persons, such as witnesses to the events related to the crimes charged. Consequently, for purposes of the notice provision, psychiatric evidence, which we have broadly construed to encompass 'any' mental health evidence offered by a defendant, includes lay testimony." (LC)

Field Trips for Insanity Patients?

This week, Washington State's mental health system came under fire after Phillip Arnold Paul, an insanity acquittee -- a person found not guilty by reason of insanity ("mental disease or defect" in New York lingo) -- escaped during an outing to a state fair.  The outing had been arranged by the mental hospital.  He was captured Sunday afternoon.  Paul's escape was apparently motivated by a judge's refusal to grant his request, earlier this month, to be transferred to a residential facility.

Insanity acquittees are not convicted criminals; rather, they are considered patients entitled to rehabilitation and treatment.  In New York, a person acquitted by reason of mental disease or defect is usually first committed to one of two secure facilities run by the state Office of Mental Health.  These facilities look and feel like prisons, complete with barbed wire, metal detectors, and armed guards.  Patients remain in state custody until they are no longer a danger to themselves or society.  Some patients are so ill that they remain in secure custody for the rest of their lives.

A patient who is no longer dangerous, but still requires in-patient treatment, is transferred to one of many non-secure facilities around the state.  Eventually he or she can be released into the community under an order of conditions.  Each level in the step-down process requires judicial consent.  OMH, the patient (represented by Mental Hygiene Legal Service, an arm of the Appellate Division), and the District Attorney are each given an opportunity to present evidence and be heard before a patient is transferred from secure to non-secure custody and from non-secure custody to full release.

Furloughs --- temporary releases from non-secure facilities into the community --- serve a therapeutic purpose.  Many patients begin their reintegration into society with one-on-one trips with their psychiatrist to the bank, grocery store, and the park.  The psychiatrist or other professional is able to observe how the patient handles the stresses of being off-grounds.  Later, OMH may seek furloughs of ratios of several patients to one professional.  Eventually, the patient may go on unsupervised and even overnight furloughs into the community.

CPL § 330.20(10) governs furlough applications, which can only be made by OMH and only if the agency believes "consistent with the public safety and welfare of the community and the defendant, the clinical condition of the defendant warrants a granting of the privileges authorized by a furlough order."  If the court finds public safety and welfare of the community and the defendant would be served by a furlough order, it must grant the application. 

In my view, Phillips Arnold Paul would never have been granted a furlough order in New York.  During recent releases to the residential facility, the patient's mental status deteriorated.  He escaped from a mental hospital in 1990; during his re-apprehension, he injured a deputy sheriff.  His underlying crime was particularly heinous: a strangling and slashing of a 78-year-old who the patient believed was a witch casting spells on him.  Based on these facts, particularly the recent decompensation and a judge's finding earlier this month that he was dangerous, it is tough to say that the public safety would be served by even supervised visits to the community.  (LC)

Appeal Held in Abeyance Pending Report from Trial Court on Defendant's Competency

In an interesting case, People v. Jefferson (2d Dept. 3/31/2009), the Second Department held an appeal in abeyance so that the trial court to hold a hearing and file a report ("with all convenient speed") on whether the defendant was competent before she entered her guilty plea to Assault in the Second Degree.

The Second Department was troubled by an exchange during the lower court's colloquy with the defendant:

Supreme Court inquired of the defendant as to whether she was at that time under the influence of drugs, she responded, "Yeah, I just came from the psychiatric ward." The court failed to follow up on this, but rather immediately asked her whether she fully understood all the questions it had asked, to which she responded, "Yeah." Thereafter, when the court asked the defendant if it was clear to her what was going on, she responded, "I'm confused." When the court further asked her what she was confused about, and she responded, "I don't know. I'm depressed." The court then simply asked the defendant if her depression stopped her from understanding the proceedings, to which she responded, "No." At that point, and without further inquiry of defense counsel as to the defendant's mental state, the court proceeded to accept the defendant's plea of guilty.

Lesson learned?  When a defendant raises a red flag about his or her competency --- by mentioning things like "psychiatric ward," "I'm depressed," or "I'm confused" --- a detailed inquiry must be made.  Here, merely asking the defendant if her depression impeded her understanding was insufficient.  Her one word answer was not adequate to gauge whether, in fact, she understood the nature of the proceedings and was able to assist in her own defense.  At a minimum, the plea court should have inquired about the length of the defendant's stay in the psychiatric facility, what was the diagnosis, what medications she was on, and whether defense counsel thought she was competent to proceed.  (LC)