Genkin of counsel , for respondent. Cuomo, Attorney General Risa S. Sugarman of counsel , for petitioner. A proceeding under article 10 of the Mental Hygiene Law is currently pending before this court in the above-referenced matter. Counsel for the respondent from Mental Hygiene Legal Service filed a motion in limine to preclude testimony or other evidence involving statements made by the respondent to Dr.
Vanessa Baker, a licensed psychologist, on May 2, , on the ground that the examination was conducted in violation of the respondent's statutory and constitutional right to counsel. Respondent compares Mental Hygiene Law article 10 cases to article 9 cases where courts have held that an attorney's presence at a prehearing examination was essential as a matter of constitutional due process to protect the individual's right to a fair hearing.
Therefore, it is impossible to discern how many of the statements in Dr. Baker's report were the result of her "leading questions or other unreliable questioning techniques" and counsel should have been present at the examination. Respondent submits a copy of Dr. Baker's report highlighting the portions respondent seeks to be redacted. A copy of the memorandum sent to the respondent is annexed to petitioner's opposition papers.
Baker conducted her examination of the respondent on May 2, wherein she reviewed numerous records that detailed the respondent's criminal, psychiatric and social history. On or about May 10, , the case review team notified the respondent of their determination that he is a sex offender requiring civil management and the resulting referral to the Attorney General.
Petitioner argues that the cases cited by the respondent are inapplicable and that the Ughetto v Acrish supra case involved prehearing examinations which were not related to treatment but which were conducted solely for the purpose of preparing the examining psychiatrist for his testimony at the hearing. Petitioner asserts that the examination of the respondent by the psychiatrist was conducted to assist the case review team and was not conducted solely for the purpose of identifying a person against whom judicial proceedings will be initiated.
Therefore, respondent was not entitled to an attorney pursuant to article 10 or the holdings in the cases cited by the respondent. Respondent's motion to preclude the testimony or evidence including statements made by the respondent to Dr. The cases cited by the respondent are not persuasive. In article 9 proceedings, as in the Ughetto v Acrish supra case, an involuntarily committed mental patient undergoes a psychiatric examination solely for the purpose of preparing the examining psychiatrist for his or her testimony at the retention hearing.
However, in an article 10 proceeding, once the respondent is identified as a possible detained sex offender, he is referred to a case review team for evaluation.
The case review team may then refer the respondent for a psychiatric evaluation to assist the case review team in determining whether or not the respondent requires civil management. After the psychiatrist's examination, the case review team could determine that the respondent is not in need of civil management.
The purpose of the examination in an article 10 proceeding is not to prepare the examining psychiatrist for testimony at the probable cause hearing but is used as an aid for the case review team to determine if the respondent requires civil management.
Moreover, article 10 clearly indicates when a respondent has a right to the appointment of counsel. Since the psychiatric examination is not conducted for the purpose of identifying individuals against whom judicial proceedings will be initiated, this court finds that respondent was not entitled to have counsel present at the psychiatric examination. Accordingly, respondent's motion is denied in its entirety.