Opinion
250306-11.
Decided June 7, 2011.
Kimberly Tate-Brown, Esq., Mental Hygiene Legal Service, Marvin Bernstein, Director, New York, New York.
Shelley Forde, Esq., Eric T. Schneiderman, Attorney General of the State of New York, White Plains, New York.
On January 14, 2011, the New York State Attorney General filed a petition contending that Enrique T. is a detained sex offender requiring civil management pursuant to Article 10 of the Mental Hygiene Law. On May 26, 2011, this Court held a probable cause hearing in the matter pursuant to MHL § 10.06.
At the hearing, Dr. Katrina Colistra testified in support of the State's contention that Respondent now suffers from a mental abnormality, as that term is defined, such that he should be subject to the civil management provisions of Article 10. The Respondent did not present any witnesses.
For the reasons set forth below, the Court finds that there is probable cause to believe that Respondent is a detained sex offender requiring civil management.
With respect to the issue of detention pending trial, the Court also finds that Respondent is dangerous. However, in light of the recent injunction barring the Attorney General from seeking enforcement of the mandatory detention provisions of Section 10.06(k), in Mental Hygiene Legal Service v. Cuomo, 2011 WL 1344522, *15 (S.D.N.Y, March 29, 2011), the Court will reopen the hearing on the issue of whether Respondent may be civilly confined pending the outcome of the Article 10 proceeding.
In MHLS v. Cuomo, the Southern District permanently enjoined the Attorney General from enforcing Section 10.06(k) of the Mental Hygiene Law, a provision which requires the mandatory confinement of sex offenders pending the outcome of an Article 10 proceeding, upon a finding of probable cause to believe they have a mental abnormality. The injunction preceded the probable cause hearing in this matter.
I. PROCEDURAL HISTORY
On January 31, 2001, Respondent pleaded guilty to Sexual Abuse in the First Degree (Contact by Forcible Compulsion), PL § 130.65(2), and, on March 2, 2001, was sentenced to a determinate term of incarceration of five years incarceration in state prison, with five years post release supervision. The two female victims in that case were seven and eleven years old. Respondent's sexual abuse of the 7 year old included anal rape and sodomy; Respondent's abuse of the 11 year old included fondling of the child's breasts and genital area.
Respondent was released from incarceration to parole supervision on June 17, 2005. In 2006, the Division of Parole ("DOP") found Respondent had violated a condition of his parole, in that he left the State of New York, without permission of the DOP, and absconded to Florida. As a result of this violation, Respondent's parole was revoked and he was returned to prison for the remainder of the period constituting the post-release supervision.
Respondent was due to be released from incarceration on or about January 23, 2011.
On January 14, 2011, the State filed an Order to Show Cause and Verified Petition in Greene County claiming that Respondent is a detained sex offender in need of civil management and seeking an order directing that Respondent be detained pending a determination of the matter. Pursuant to the terms of that Order to Show Cause, Respondent has been held in custody pending the completion of this probable cause hearing.
At the time the petition was filed, Respondent was incarcerated at Coxsackie Correctional Facility in Greene County.
On January 20, 2011, Respondent sought to have the matter removed to Bronx County, where the underlying sex offense occurred; Hon. George J. Pulver, Jr., Acting Supreme Court Justice, granted the motion.
Thereafter, on May 26, 2011, this Court held the probable cause hearing. At the end of the May 26 proceeding, the Court issued an interim order finding probable cause and directing that Respondent continue to be detained. The Court informed the parties at that time that it would issue a written decision on the matter.
II. THE STATUTORY BACKGROUND OF ARTICLE 10
In 2007, the New York State Legislature passed The Sex Offender Management and Treatment Act ("SOMTA"), which, among other things, includes Article 10 of the Mental Hygiene Law of New York State, with the stated goal of addressing the danger to society posed by recidivist sex offenders. MHL § 10.01(a). The act was signed into law by then-Governor Eliot Spitzer on March 14, 2007, and became effective April 13, 2007.
Determining that some sex offenders have mental abnormalities that predispose them to engage in repeated sex offenses, the Legislature enacted SOMTA which provides that a person who is determined to be a detained sex offender with a mental abnormality, as those terms are defined in § 10.03(g) and (i) of Article 10, would be subject to civil management after that person had served his or her criminal sentence. MHL § 10.01(b)-(g). In order to be subject to civil management as set forth in MHL § 10.01, et seq., the person must have been convicted of a sex offense, as defined in Article 10. MHL § 10.03(p). Civil management may take the form of either civil confinement in a secure treatment facility or strict and intensive supervision ("SIST"). MHL §§ 10.01 (b), (c), (d) and 10.07(f).
"Mental abnormality" is defined as a congenital or acquired condition, disease or disorder which affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and results in that person having serious difficulty in controlling such conduct. MHL § 10.03.
SOMTA provides that, within a specified time frame, either a Supreme or County Court judge shall hold a probable cause hearing to determine whether there is probable cause to believe that the respondent is a detained sex offender requiring civil management. MHL § 10.06(g)-(k).
If the court determines that such probable cause exists, Article 10 mandates that the respondent be committed to a secure treatment facility for care, treatment and control until the Article 10 proceeding is completed. MHL § 10.06(k).
A respondent also may consent to remain in the custody of DOCS pending the outcome of the proceedings. MHL 10.06(k).
The matter is then tried before a twelve person jury, or a judge if the respondent in that case waives a trial by jury. MHL § 10.07(b). The petitioner (the State of New York through the office of the Attorney General) carries the burden of proving that the respondent in the matter is a detained sex offender who has a mental abnormality by clear and convincing evidence. MHL § 10.06(a) and (b).
If the outcome of the trial is a determination that a respondent is a sex offender requiring civil management, such civil management may either take the form of civil confinement in a secure treatment facility or outpatient treatment and supervision. The form of civil management is determined by the court, based upon a finding of dangerousness. MHL § 10.07(f).
III. THE PROBABLE CAUSE HEARING
As noted above, Dr. Colistra was the State's sole witness at the probable cause hearing.
Dr. Colistra testified on May 26, 2011, that she is a licensed psychologist employed as a psychiatric examiner with the New York State Office of Mental Health since October 2008. Dr. Colistra testified that her duties as a psychiatric examiner include evaluations of sex offenders at various stages in the Article 10 process, including the initial evaluation for the probable cause and trial phase, annual review evaluations of those who are confined in secure treatment facilities, and evaluations of those who violate the terms of SIST. Transcript of May 26, 2011 Hearing (hereafter "Tr.") at 4-5.Dr. Colistra testified that she has performed approximately 60 to 65 such evaluations since she received her psychiatric examiner license in New York in October 2008. Tr. at 6.
Upon hearing Dr. Colistra's qualifications and experience, at the State's request, the Court qualified Dr. Colistra as an expert in the field of psychology, without objection by Respondent, and credits Dr. Colistra's testimony.
Dr. Colistra testified that she received a Master's Degree in Psychology from Northeastern University in 2000 and her Doctorate from the Massachusetts School of Professional Psychology in 2007, and that she is a member of the American Psychological Association, the American Psychology and Law Society, the National Association for the Treatment of Sex Offenders, and the New York Association for the Treatment of Sex Offenders. Tr. at 4-5. Dr. Colistra testified that she has been qualified as an expert in the field of Psychology in New York courts 21 times, and that she has had field experience treating sex offenders and evaluating sex offenders, and has attended, as a licensed psychologist employed by the Office of Mental Health, 25 to 30 training programs regarding the Article 10 process and the evaluation of sex offenders. Tr. at 6-7.
Dr. Colistra testified that she evaluated Respondent pursuant to Article 10 of the Mental Hygiene Law. Tr. at 8. She testified that, as part of her evaluation, she reviewed numerous records related to Respondent, including his rap sheet, Bronx County Department of Probation pre-sentence investigation reports, computerized documents from the Department of Corrections ("DOCS"), DOCS sex offender program records, and New York State Office of Mental Health records. Tr. at 8. Dr. Colistra testified that she also spoke with Kay Jackson, a treatment provider whom Respondent saw while he was on parole in 2005 and 2006 and that, on December 29, 2010, she interviewed Respondent for approximately four and a half hours at Coxsackie Correctional Facility. Tr. at 8-9.
Dr. Colistra credibly testified that, based upon her evaluation of Respondent, including her review of his records, it is her opinion that Respondent now suffers from both pedophilia and antisocial personality disorder. Tr. at 30-32.
Dr. Colistra testified that the criteria for a diagnosis of pedophilia include the following factors: that, over a period of at least six months, the individual have intense sexually-arousing fantasies, urges or behaviors involving sexual activity with prepubescent children age 13 and under; that the individual be at least 16 years old and that there be at least a five year gap between the individual and the victim; and that the condition or the thoughts and behaviors cause impairment or distress to the individual. Tr. at 30.
Dr. Colistra testified that she based her opinion that Respondent suffers from pedophilia on the fact that he engaged in the sexual abuse of a 4 year old when he was 14 years old, then, at age twenty five, abused a 7 year old and an 11 year old; that these incidents led to impairment in that Respondent was removed from his home due to incarceration each time; and that Respondent reported distress with his condition, stating that he would rather see himself in prison again than engage in this behavior. Tr. at 30-31.
Dr. Colistra testified that, although this sexual abuse, which included the anal and vaginal rape of a 4 year old child, did not itself fall within the criteria for pedophilia, as Respondent was not 16 years old at the time of occurrence, the fact that he then engaged in subsequent similar behavior at age 25 evidenced the continuing, chronic nature of his pedophilia. Tr. at 39-40.
Dr. Colistra credibly testified that pedophilia is a chronic condition, and that Respondent's behavior shows that he has retained a deviant sexual arousal to young girls. Id. at 31.
With respect to the criteria for a diagnosis of antisocial personality disorder, Dr. Colistra testified that an individual must be at least 18 years old and must meet at least 3 of 7 specified criteria, which include: a pervasive and chronic disregard for the rights of others in social norms or the law with evidence of such behavior by age 15; irritability; aggressiveness; impulsivity and failure to plan ahead; irresponsibility; lack of remorse; and deceitfulness. Tr. at 31-32. Dr. Colistra also testified that, in order to make a diagnosis of antisocial personality disorder, the individual must not be suffering from a manic, schizophrenic episode or psychotic attack. Tr. at 32.
Dr. Colistra credibly testified that her opinion that Respondent suffers from antisocial personality disorder is based upon Respondent's arrest at age 14, and evidence of conduct problems prior to that age; that Respondent reported selling weapons as a teenager for the thrill of it; that despite Respondent's history of offending behavior, he repeated his offenses; and that Respondent exhibited an inability to plan ahead or to think things through, as evidenced by his parole violations. Tr. at 32. Dr. Colistra also noted that there is no evidence of Respondent having a schizophrenic or manic episode. Tr. at 32.
Dr. Colistra credibly testified that she is familiar with the definition of mental abnormality in the Mental Hygiene Law and that it is her opinion that Respondent suffers from a mental abnormality. Tr. at 33. According to Dr. Colistra, Respondent's conditions of pedophilia and antisocial personality disorder predispose him to commit sex offenses. Id. Dr. Colistra also credibly testified that Respondent has evidenced his serious difficulty in controlling his predisposition to commit sex offenses — by re-committing sex offenses at age 25, despite the sanctions which resulted from his first sex offense at age 14, and despite knowing that the behavior would have negative consequences. Id. Dr. Colistra also credibly testified that Respondent's willingness to risk his personal, familial relationships to satisfy his sexual urges further evidences his difficulty controlling the behavior. Tr. at 33.
IV. CONCLUSIONS OF LAW
Based on the credible evidence at the hearing, the Court finds there is probable cause to believe that Respondent is a detained sex offender requiring civil management. MHL § 10.06(k).
A finding of probable cause in an Article 10 case requires evidence that establishes that there is "reasonable cause to believe" that the person is a detained sex offender requiring civil management. State v. Pedraza, 18 Misc 3d 261, 266 (Sup. Ct., Suffolk Co. 2007); Matter of New York v. C.B., 2008 NY Slip Op 50488U, *4-5; 19 Misc 3d 1103A (Sup. Ct., Bronx Co. 2008); State v. J.J., Jr., 19 Misc 3d 196, 201 (Sup. Ct., Nassau Co. 2008).
Pursuant to MHL § 10.03(q), a "sex offender requiring civil management" means a detained sex offender who suffers from a mental abnormality, as that term is defined in the statute. MHL § 10.03(i).
A)Probable Cause Exists to Believe
Respondent is a Detained Sex Offender
As an initial matter, the Court finds there is probable cause to believe that Respondent is a detained sex offender. MHL § 10.03(g) provides, in relevant part, that:
a "detained sex offender" is a person who is in the care, custody, control, or supervision of an agency with jurisdiction, with respect to a sex offense or designated felony, in that the person stands convicted of a sex offense as defined in subdivision (p) of this section, and is currently serving a sentence for, or subject to supervision by the division of parole, whether on parole or on post-release supervision, for such offense or for a related offense. . . .
Here, Respondent was convicted of a qualifying crime — Sexual Abuse in the First Degree, a felony sex offense — and, at the time the petition was filed, he was serving a sentence for that offense. Accordingly, Respondent meets the definition of a detained sex offender pursuant to MHL § 10.03(g)(i). State of New York v. P.H. , 22 Misc 3d 689 , 705 (Sup. Ct., New York Co. 2008) (respondent was convicted of defined sex offense; therefore Article 10 petition valid).
B)Probable Cause Exists to Believe Respondent
Suffers from a Mental Abnormality
The Court also finds that there is probable cause to believe that Respondent suffers from a mental abnormality as that term is defined: "A congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct." MHL § 10.03(i).
Dr. Colistra's credibly testified that Respondent suffers from pedophilia and antisocial personality disorder, and that these conditions predispose him to commit sex offenses. Tr. at 33. Dr Colistra also credibly testified that Respondent's two disorders affect his emotional, cognitive, or volitional capacity in such a manner as to predispose him to commit sex offenses against young girls. Tr. at 33. Dr. Colistra's credible opinion is based upon her extensive analysis of Respondent, including his criminal history of sex and non-sex offenses, his history of sex offender treatment, his Office of Mental Health records, his DOCS records, and her interview with Respondent.
The Court also finds credible Dr. Colistra's opinion that, as a result of Respondent's pedophilia and antisocial personality disorder, he has serious difficulty in controlling his sexually deviant conduct. Tr. at 33. Dr. Colistra's conclusion was based upon Respondent's repeated sex offenses, his expressed admission of concern that he may re-offend, and his willingness to risk his personal relationships to engage in the offending behavior.
Based upon the credible testimony at the hearing, this Court finds probable cause to believe that Respondent now suffers from a mental abnormality, as that term is defined. Pedraza, 18 Misc 3d at 266-67 (probable cause established by State's expert, who relied upon record of offender's past behavior, pre-sentence investigative reports, interview with offender and standardized statistical analysis); State v. J.J., Jr., 19 Misc 3d at 201-02 (totality of evidence presented at hearing was of such collective weight and persuasiveness that the court finds probable cause).
C. Probable Cause Exists to Believe that
Respondent is Dangerous to the Community
The Court also finds that there is probable cause to believe that Respondent would be a danger to society if he were to be released pending trial without supervision. See People v. Sanchez, 2009 NY Slip Op. 50256U, *2, 22 Misc 3d 1123A (Sup. Ct., Richmond Co. 2009) (probable cause standard applies to the issue of dangerous at the probable cause hearing).
Section 10.06(k) does not require a finding of dangerousness to be made before the Court orders pre-trial commitment. Nonetheless, perhaps recognizing the constitutional issues created by the language of the statute, numerous other New York courts have determined that a finding of dangerousness is a pre-requisite to any pre-trial commitment order. See e.g., State v. P.H., 22 Misc 3d at 711-12 (respondent cannot be detained absent finding of dangerousness); Matter of New York v. C.B., 2008 NY Slip Op 50488U, *4-5 (court finds dangerousness); State of New York v. J.J., Jr., 19 Misc 3d at 204 (applying Rules of Construction court finds that legislature intended § 10.06(k) to implicitly require finding of dangerousness).
Dr. Colistra credibly testified that, it is her opinion, in light of Respondent's history of violating his parole, his serious difficulty controlling his behavior, and the chronic nature of his deviant sexual interests, that Respondent is dangerous. Tr. at 35-36.
The Court finds that, based on the credible testimony, without supervision, Respondent would be dangerous to the community. The Court notes that Article 10 contains no provision allowing for interim supervision of a person awaiting an Article 10 trial, nor is any agency statutorily authorized to conduct such supervision. In this case, the Court finds Respondent to be dangerous, in part because there is no existing mechanism to supervise Respondent in the community pending trial.
Mental Hygiene Law requires that, once a court has found probable cause to believe that a person is a sex offender requiring civil management, the court must order the person committed to a secure treatment facility pending the outcome of the Article 10 proceeding. MHL § 10.06(k). Recently, however, the United States District Court for the Southern District of New York determined that § 10.06(k) is unconstitutional on its face in that it requires automatic detention of all individuals subject to civil management upon a finding of probable cause. Mental Hygiene Legal Services v. Cuomo, 2011 WL 1344522, *15. The Southern District noted that § 10.06(k) encompasses both those individuals who may be subject to SIST after trial as well as those who may be subject to civil confinement after trial, without distinction or provision for a court to make such a distinction. Id. at *15. The Southern District permanently enjoined the Attorney General from enforcing this mandatory confinement provision. MHLS v. Cuomo at *15 (Section 10.06(k) automatic detention of all individuals after probable cause finding that they are detained sex offenders requiring civil management violates the United States Constitution and Attorney General is permanently enjoined from enforcing such provision).
At the hearing, the Attorney General did not address the injunction imposed by the federal court or the Attorney General's reasons for seeking civil confinement of Respondent in this case pending trial despite the injunction.
In the instant matter, the Court has found Respondent to be dangerous, in part because Article 10 contains no provision for interim supervision in the community pending the trial. However, a finding of dangerousness does not appear to obviate the unconstitutional nature of § 10.06(k) for the very reason that, in a case such as this one, a lesser restrictive mode of supervision might eliminate the danger, yet this alternative is not available under the statute. See McKinney's Statutes § 150 (in rare cases involving life and liberty where invalidity is apparent on the face of the statute, it must be set aside as unconstitutional); see also J.J., Jr., 19 Misc 3d at 204 (no finding under § 10.06(k) where lesser conditions of supervision would suffice).
Although the court in State of New York v. J.J., Jr., 19 Misc 3d at 204, applied a rule of statutory construction interpreting Section 10.06(k) to implicitly require a finding of dangerousness, such construction does not rehabilitate the facial unconstitutionality of the provision found by the Southern District. Moreover, although the court in J.J., Jr. recognized that continued confinement requires a finding of probable cause to believe that a respondent is a sex offender and is dangerous "and there is no viable alternative to incarceration pending the outcome of the trial," ( id.), the statute does not allow a respondent to be released under any circumstances after a finding of probable cause.
For the reasons set forth above, the Court has reopened the hearing on the issue of any pre-trial commitment of Respondent. V. CONCLUSION
For all the reasons set forth above, the Court finds that probable cause exists to believe that Respondent is a detained sex offender who suffers from a mental abnormality, as that term is defined, requiring civil management pursuant to MHL § 10.03(q).
The Court also finds that Respondent is a danger to society, if released without supervision. The continued hearing on the issue of pre-trial commitment of Respondent is scheduled for June 13, 2011, at 9:30 a.m. in Courtroom 580.