Supreme Court, Kings County, September 14, 2018

Craig S. Leeds, New York City, for respondent.

Barbara D. Underwood, Acting Attorney General, New York City (Christopher Laline of counsel), for petitioner.

In this proceeding under article 10 of the Mental Hygiene Law, respondent Victor H. moves for an order seeking the following relief: (1) compelling discovery and inspection of alleged correspondence and recorded telephone calls obtained while respondent was incarcerated; (2) suppressing and precluding the use of alleged correspondence and recorded telephone calls obtained while respondent was incarcerated; (3) precluding the State's expert witnesses from testifying at trial based on their consideration and reliance upon the alleged correspondence and recorded telephone calls obtained while respondent was incarcerated; (4) precluding the State's expert witnesses from testifying as to the ultimate conclusion in this matter; and (5) dismissing the petition. The State opposes the motion in its entirety.

The court has considered respondent's notice of motion and affirmation in support of [*2]the motion with annexed exhibits; the State's affirmation in response to respondent's motion with annexed exhibits; and respondent's reply affirmation. For all of{**61 Misc 3d at 654} the reasons set forth below, the court denies respondent's motion in its entirety.

(1) Motion to Compel Discovery and Inspection

First, respondent argues that various alleged letters written by respondent while incarcerated, as well as telephone conversations between respondent and others recorded while respondent was incarcerated, were not provided to respondent in discovery. These materials were considered and relied upon by the State's psychiatric experts, Dr. Susan Cox and Dr. Ronald Field, in forming their opinion that respondent suffers from a mental abnormality.

In opposition, the State has demonstrated to the court that the materials sought to be compelled were provided to respondent's original counsel prior to the probable cause hearing in this case and were also previously provided to current counsel.^[FN*] Accordingly, respondent's motion to compel discovery is denied.

(2) Motion to Suppress and Preclude Evidence

Next, respondent seeks to suppress and/or preclude the admission at trial of the alleged correspondence and recorded telephone calls obtained while respondent was incarcerated. Respondent argues that there is an expectation of privacy as to his written correspondence while incarcerated and that the correspondence at issue was intercepted and copied by prison authorities without his permission. Respondent further contends that the interception of his mail was not justified because the records intercepted contained no evidence of criminal activity and that prison authorities violated prison regulations. Concerning the recorded telephone calls, respondent argues that such calls were recorded without his consent. Respondent does not suggest that he was unaware that his calls were being recorded.

At the outset, the court notes that the State is not seeking to admit as evidence at trial any of the actual recorded telephone calls or intercepted correspondence. Rather, these letters and calls are significant in that they were considered and relied upon by the State's expert witnesses when conducting a psychiatric evaluation of respondent for the purposes of this article 10 proceeding.{**61 Misc 3d at 655}

[1] Respondent's motion to suppress such evidence is denied for numerous reasons. First, it is well established that where good cause is shown mail may be read without violating inmates' constitutional rights and any intrusion of privacy interests is justified to the extent that it is "reasonably related to legitimate penological interests" (Turner v Safley, 482 US 78, 89 [1987]; Bell v Wolfish, 441 US 520 [1979]). Second, any recordings of respondent's telephone calls while he was in the custody of the New York City Department of Correction, despite his claim of lack of consent, are equally admissible (People v Davis, 149 AD3d 974 [2d Dept 2017]; People v Johnson, 27 NY3d 199 [2016]).

Finally, the court notes that these letters and calls are admissible at trial as statements or admissions that are inconsistent with respondent's current position and are exceptions to the rule against hearsay (People v Ballinger, 176 Misc 2d 803, 805 [Sup Ct, Kings [*3]County 1998]). These statements further meet the requirements of Matter of State of New York v Floyd Y. (22 NY3d 95 [2013]) and People v Goldstein (6 NY3d 119 [2005]) for reliability. For these purposes, there is sufficient evidence that respondent was a party to the telephone calls and that the letters were written and mailed by him to friends and family. For example, the telephone calls can be traced to respondent's inmate identification number and the letters and envelopes have respondent's return address and inmate identification number. Additionally, these documents are admissible as business records of the Department of Corrections and Community Supervision and the New York State Office of Mental Health kept in the ordinary course of business.

All other arguments made by respondent go to the weight of the evidence, not the admissibility.

(3) Motion to Preclude Expert Testimony

[2] Respondent further seeks to preclude Drs. Cox and Field from testifying at trial because, in forming their opinions that respondent suffers from a mental abnormality, they relied upon the letters and recorded telephone conversations described above. However, the Mental Hygiene Law provides expert examiners access to a vast array of records relevant to the determination of mental abnormality. For example, pursuant to Mental Hygiene Law § 10.05 (d), the case review team "shall review and assess relevant medical, clinical, criminal, and institutional records, actuarial risk assessment instruments and other records and reports, including records of parole{**61 Misc 3d at 656} release interviews where applicable, and records and reports provided by the district attorney of the county where the person was convicted." Similarly, a psychiatric examiner chosen by the Attorney General shall have reasonable access to respondent's "relevant medical, clinical, criminal or other records and reports" (Mental Hygiene Law § 10.08 [b]). Further, Mental Hygiene Law § 10.08 (c) provides that

"[n]otwithstanding any other provision of law, the commissioner, the case review panel and the attorney general shall be entitled to request from any agency, office, department or other entity of the state, and such entity shall be authorized to provide upon such request, any and all records and reports relating to the respondent's commission or alleged commission of a sex offense, the institutional adjustment and any treatment received by such respondent, and any medical, clinical or other information relevant to a determination of whether the respondent is a sex offender requiring civil management. Otherwise confidential materials obtained for purposes of proceedings pursuant to this article shall not be further disseminated or otherwise used except for such purposes."

The recorded telephone calls and correspondence that respondent objects to are clearly institutional records and/or information relevant to the determination of whether the respondent is a sex offender requiring civil management as set forth by the statute. Therefore, article 10 clearly permits the State's expert witnesses to consider and rely on these and other discovery items when determining whether respondent suffers from a mental abnormality. As the State correctly asserts, recent cases decided by the Court of Appeals require that psychological experts performing evaluations conduct a "detailed psychological portrait" to determine the level of control a respondent has over his conduct (see e.g. Matter of State of New York v Donald DD., 24 NY3d 174 [2014]). The materials [*4]respondent seeks to suppress or preclude are the type of items experts rely on to form a detailed psychological portrait.

Respondent further argues that if the court denies the motion to preclude such expert testimony, the State's expert witnesses should be precluded from stating the ultimate conclusion in this matter, such that respondent suffers from a mental abnormality. However, the case law is clear that psychiatric{**61 Misc 3d at 657} examiner experts are not precluded from discussing that ultimate conclusion (see e.g. Matter of State of New York v Donald DD., 24 NY3d 174 [2014]).

(4) Motion to Dismiss Petition

Finally, respondent moves to dismiss the petition since it is based upon the report of Dr. Field which he argues improperly relied upon the alleged correspondence and recorded telephone calls in forming his opinion that respondent suffers from a mental abnormality. As discussed above, respondent's argument is without merit.

Respondent's motion is denied in its entirety.