88 A.D.3d 599
N.Y. App. Div.
2011

In the Matter of STATE OF NEW YORK, Respondent, v C.B., Appellant.

Supreme Court, Appellate Division, First Department, New York

2011

931 N.Y.S.2d 300

Tom, J.P., Saxe, Moskowitz, DeGrasse and Abdus-Salaam, JJ.

The court properly denied appellant‘s application for a pretrial hearing on the voluntariness of a confession that was ultimately admitted at trial. Sex offender management proceedings under article 10 of the Mental Hygiene Law are civil rather than criminal (People v Harnett, 16 NY3d 200, 206 [2011]; see also Smith v Doe, 538 US 84, 92 [2003]; Kansas v Hendricks, 521 US 346, 361 [1997]). Therefore, the requirement of a judicial determination of voluntariness (see People v Huntley, 15 NY2d 72 [1965]) does not apply to such proceedings. Instead, appellant‘s confession was admissible as a party admission under the principles applicable to civil litigation. Appellant‘s other evidentiary claims are without merit.

Appellant received effective assistance of counsel, even under the state and federal standards applicable to criminal cases (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). Appellant claims his trial counsel should have sought to preclude, as unreliable, any testimony regarding the STATIC-99 actuarial risk assessment instrument (see Matter of State of New York v Rosado, 25 Misc 3d 380, 388-394 [Sup Ct, Bronx County 2009] [discussion of STATIC-99]). Instead, it was appellant‘s counsel who brought the STATIC-99 into the case on cross-examination of the State‘s expert. This was a strategy designed to discredit the expert by showing that, in forming his opinion, he placed excessive emphasis on statistics rather than appellant‘s personal attributes. The strategy was objectively reasonable, and in any event it did not cause appellant any prejudice.

Finally, there is no merit to appellant‘s argument that he is entitled to release on the ground that his initial confinement under article 9 of the Mental Hygiene Law had been illegal (see People ex rel. Joseph II. v Superintendent of Southport Correctional Facility, 15 NY3d 126 [2010]).

Concur—Tom, J.P., Saxe, Moskowitz, DeGrasse and Abdus-Salaam, JJ.