        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

191
CA 15-00186
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


IN THE MATTER OF STATE OF NEW YORK,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

PAUL VANDERPOOL, RESPONDENT-RESPONDENT.
(APPEAL NO. 1.)


ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE
OF COUNSEL), FOR PETITIONER-APPELLANT.

EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, BUFFALO
(DIANE S. GASTLE OF COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered October 10, 2014 in a proceeding pursuant to
Mental Hygiene Law article 10. The order granted respondent’s motion
to conduct a written deposition.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the motion is
denied.

     Memorandum: In this proceeding pursuant to Mental Hygiene Law
article 10, petitioner appeals in appeal No. 1 from an order that
granted respondent’s motion to conduct a limited deposition upon
written questions of the victim of the qualifying offense. We agree
with petitioner that Supreme Court erred in granting the motion.
Respondent’s motion papers make clear that his intent in seeking to
depose the victim is to relitigate the issue of his use of force in
the commission of the qualifying offense. That is specifically
prohibited by Mental Hygiene Law § 10.07 (c) inasmuch as respondent
has been convicted of the qualifying offense (see Matter of State of
New York v Geoffrey P., 100 AD3d 911, 912, lv denied 20 NY3d 862).
Indeed, we note that respondent’s conviction of the qualifying offense
was based on his voluntary plea of guilty to attempted rape in the
first degree “[b]y forcible compulsion” (Penal Law § 130.35 [1]; see
§ 110.00).

     Respondent has also failed to demonstrate good cause for the
issuance of a judicial subpoena upon the victim (see Mental Hygiene
Law § 10.08 [g]). Although respondent contends that he demonstrated
such good cause because petitioner’s experts allegedly relied upon the
victim’s hearsay statements concerning the circumstances of the
                                 -2-                           191
                                                         CA 15-00186

qualifying offense, and they will testify about those hearsay
statements at trial, we conclude that the experts’ reliance on such
hearsay is not improper inasmuch as “the evidence of reliability [of
that hearsay] was the criminal justice adjudication unfavorable to
[respondent]” (Matter of State of New York v Floyd Y., 22 NY3d 95,
109).

     Finally, in light of our determination in appeal No. 1, we
dismiss as moot petitioner’s appeal from the order in appeal No. 2
denying its subsequent motion for leave to renew and reargue.




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
