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A sex offender who waives his right to counsel at a civil confinement hearing must do so in a way that is “unequivocal, voluntary and intelligent,” a unanimous appellate court has upheld in establishing a new standard for proceedings brought under the Sex Offender Management and Treatment Act (SOMTA).

The Appellate Division, Second Department, said that while a sex offender hearing is civil rather than criminal, and that the Sixth Amendment right to counsel does not apply, the liberty interest is so great that judges must use a high standard before allowing a respondent to waive his or her statutory right to an attorney.

In Matter of Raul L., 2012-09303, the justices unanimously agreed that Supreme Court Justice Catherine Bartlett neglected to perform the type of “searching inquiry” that a criminal case would require. The court afforded Raul L. a new hearing even after finding sufficient evidence to support civil commitment.

Raul, according to the decision, was 15 years old when he broke into a woman’s home, beat her over the head with a baseball bat and then sodomized her while she was bloodied and unconscious. He was convicted in 2005 of several counts of assault and sentenced to state prison.

When Raul was nearing release in 2011, the state brought a civil management action under Sex Offender Management and Treatment Act (Article 10 of the Mental Hygiene Law). Under it, sex offenders who have completed their prison sentence but suffer from a “mental abnormality” that predisposes them to commit sex crimes can be committed to a secure mental institution.

At the nonjury trial, Raul’s court-appointed attorney with Mental Hygiene Legal Services asked to withdraw because of a disagreement with his client. Bartlett explained to Raul that if his appointed counsel were relieved, a new attorney would need several months to prepare for trial.

Raul told the court that he did not want to wait and preferred to represent himself. Bartlett granted his wish, “despite repeated requests by the assistant attorney general” that the court first conduct a “searching inquiry” to ensure that the respondent fully understood the risk of proceeding pro se, according to the Second Department.

“Notwithstanding the concerns voiced by the assistant attorney general, the Supreme Court erroneously insisted that it had fulfilled its obligations by merely placing on the record that the appellant did not want an attorney, that he understood he would represent himself, and that he could read and write,” Justice John Leventhal (See Profile) wrote for the court.

Evidence at the trial established to the satisfaction of Bartlett and the Second Department that Raul is a sadistic sex offender in need of civil management. But the Second Department still reversed and established that judges must conduct the same extensive inquiry in a civil confinement proceeding as in a criminal matter.

In a criminal case, a judge must make certain that the accused understands the perils of proceeding without a lawyer. In Raul, the Second Department extended that rule, which had already been applied to some Family Court matters where a respondent faced a potential loss of liberty or other significant rights, to sex offender commitment cases.

“A respondent in a SOMTA proceeding arguably faces an even more severe threat to his or her liberty than that faced by a criminal defendant,” Leventhal wrote in an opinion shared by justices William Mastro (See Profile), Ruth Balkin (See Profile) and Plummer Lott (See Profile). “When successfully litigated by the state, such a proceeding can result in civil confinement, after a respondent is released from prison, which is involuntary and indefinite and can last the remainder of a respondent’s life.”

The court held that “a respondent in a SOMTA proceeding can effectively waive his or her statutory right to counsel only after the court conducts a searching inquiry to ensure that the waiver is unequivocal, voluntary, and intelligent.”

On the appeal, Raul was represented by Steven Feldman of Feldman & Feldman in Uniondale. Deputy Solicitor General Steven Wu and Assistant Solicitor General Won Shin appeared for the state, arguing that the requirement to conduct a searching inquiry applies only in criminal proceedings and noting that assigned counsel was appointed to stand by Raul and offer any needed assistance throughout the proceeding.

Feldman said the ruling is a natural extension of a U.S. Supreme Court precedent, Faretta v. California, 422 U.S. 806 (1975), that said the right to counsel carries a concomitant right to refuse counsel, and Matter of Kathleen K. 17 NY3d 380 (2011). In Kathleen K., which Feldman argued, the Court of Appeals said a Family Court judge had appropriately refused to allow the respondent in a child neglect proceeding to represent himself because his request was less than “unequivocal.”

Feldman said the Second Department’s opinion in Raul marked the first time an appellate court in New York has held that the criminal standard for waiving counsel applies in the context of an Article 10 proceeding.

The Attorney General’s office declined comment.