Opinion
Index No. 30202-2016
12-05-2022
In the matter of the application of The State of New York, Petitioner, v. Jesus H., Respondent, For Commitment Under Article 10 of the Mental Hygiene Law.
New York State Attorney General Letitia James (Jeffrey Jackson, of counsel) for the State. Mental Hygiene Legal Services First Judicial Department (Jessica Botticelli, of counsel) for the Respondent.
Unpublished Opinion
New York State Attorney General Letitia James (Jeffrey Jackson, of counsel) for the State.
Mental Hygiene Legal Services First Judicial Department (Jessica Botticelli, of counsel) for the Respondent.
Daniel Conviser, A.J.S.C.
The Respondent is the subject of a petition for sex offender civil management pursuant to Article 10 of the Mental Hygiene Law ("Article 10"). This Decision and Order rules on the State's petition seeking a determination that the Respondent is a Dangerous Sex Offender Requiring Confinement (a "DSORC") and revoke the Respondent's release on Strict and Intensive Supervision and Treatment in the Community ("SIST").
Following the conclusion of the State's case, the Respondent moved for a judgment during trial (a directed verdict) pursuant to CPLR 4401. The motion was based on the fact that the State's sole witness at the hearing, Dr. Clare Lagarde, refused to provide any current expert opinion that the Respondent was a DSORC and rather relied exclusively on an opinion she rendered 14 months earlier that the Respondent was a DSORC at that time. The Court reserved decision on the motion and the Respondent then presented the testimony of an expert witness, Dr. John Shields, who opined that the Respondent was not a DSORC. For the reasons outlined here, the Respondent's motion for a directed verdict is granted, the SIST termination petition is dismissed and the State is directed to prepare revised SIST conditions following which the Court will schedule an appearance at which the Respondent may agree to new SIST conditions and again be released to SIST.
History of Prior Proceedings
The Respondent was previously found to suffer from a Mental Abnormality following a bench trial presided over by this Court and found not to be a DSORC. He was released to SIST on May 1, 2019. Mr. H. remained in the community for 9 months and was then taken into custody on a SIST violation warrant based on his use of cannabis and synthetic cannabis and the failure to attend and discharge from his sex offender treatment program. He was then evaluated by OMH psychologist Dr. Jonathan Miljus and subsequently ordered released on new SIST conditions by this Court on April 24, 2020. Mr. H. was then in the community on SIST for about one year and taken into custody pursuant to the instant SIST violation on May 5, 2021. He has been in custody awaiting the outcome of this proceeding since then.
Summary of Mr. H.'s Criminal History
Mr. H. was convicted in 1994 of Attempted Murder in the Second Degree and Sodomy in the First Degree when he was 16 years old. The victim was the Respondent's step-mother and the incident occurred at her house. Mr. H. forcibly sodomized the victim and stabbed her in the neck multiple times. His knife broke after he slit her neck and he then got another knife from the kitchen and continued stabbing and cutting her neck until she appeared unresponsive.
Mr. H. was convicted of a second serious offense while confined in a state correctional facility in 2002. In that case, he brutally assaulted a female corrections officer by punching and kneeing her in the head, dragging her and then pounding her head into a concrete wall. The victim testified during the Article 10 trial that Mr. H. tried to snap her neck and placed his hand over her mouth. The officer lost consciousness a couple of times. The Defendant opened the victim's blouse and put his head into her chest and tried to open her pants. The assault was interrupted when the victim screamed and the Defendant fled when corrections officers appeared. He was convicted of Assault in the Second Degree, a non-sexual offense, for that crime and sentenced to a 7 year determinate term. He was also placed in a Special Housing Unit cell for 10 years.
Mr. H. received a disciplinary infraction for a lewd sexual act in 2004. In that case, a female librarian was facing the Respondent's cell and saw him masturbating from inside his cell while facing her. He received a total of 24 disciplinary infractions during 22 years of incarceration. Mr. H. successfully completed a sex offender treatment program in prison in 2015. He is 46 years old.
Statute Governing SIST Violation Proceedings
A parole officer may take a SIST respondent into custody upon a violation of SIST conditions following which a psychiatric examiner must conduct an evaluation within 5 days to determine if the Respondent is a DSORC. If the State asserts the Respondent is a DSORC then it shall seek to file a petition for the Respondent's confinement within 5 days of the Respondent's custody. MHL § 10.11. A petition shall contain sworn allegations by a parole officer attesting to the SIST violation and "shall be accompanied by any written evaluations or reports by a treating professional indicating that the respondent may be a dangerous sex offender requiring confinement". MHL § 10.11 (d) (4). The Court must then determine whether there is probable cause to believe the Respondent is a DSORC and, if the Court does so find, as it did in this case, the Respondent is held in custody pending the outcome of a DSORC hearing. A DSORC hearing under the statute must be commenced within 30 days of the filing of a petition except that the failure to comply with this rule shall not result in a respondent's release or affect the hearing's validity. MHL § 10.11 (d) (4).
The DSORC psychiatric evaluation resulting in this proceeding was conducted by Dr. Lagarde, who opined that Mr. H. was a DSORC in a written report on July 2, 2021. She refused during her testimony, however, to provide a current opinion on that issue and refused to review any of the limited additional psychiatric records which were generated between her report and the date she testified on September 6, 2022. Dr. Lagarde's refusal to provide a current opinion arose after extensive efforts by the Court to procure her testimony, which are next outlined.
The Effort to Obtain Dr. Lagarde's Testimony
In a June 17, 2022 appearance to schedule the instant hearing, the State first informed the Court that Dr. Lagarde would not be available to testify beginning in "September" although the State said it did not know whether this period would begin on September 1 or September 30. When the Court asked how long that period of unavailability would last, the State said Dr. Lagarde would be out of the country "indefinitely". Transcript, p. 3. That information later proved to be false, an error the State later attributed to inaccurate or unclear information given by Dr. Lagarde. The Court then suggested the State would have to obtain a new expert expeditiously if Dr. Lagarde could not testify given the Respondent's liberty interest.
The State then informed the Court that Dr. Lagarde would be available in July or August, another representation the State later asserted was false and another inaccurate assertion the State later attributed to false information from Dr. Lagarde. The State then said it would either produce Dr. Lagarde in July or August, or, if that was not possible, obtain another expert witness. The case was adjourned to July 12 for the Respondent to provide a completed psychiatric report by its expert witness, Dr. Shields.
On July 12 the State reported, however, that it had contacted Dr. Lagarde and "she's no longer available... she no longer works with OMH" [the New York State Office of Mental Health]. Transcript, p. 4. Dr. Lagarde had left OMH in March of 2022, something Dr. Lagarde and the State had been aware of well before the June 17 appearance when the State said Dr. Lagarde would be available. On August 11, the State reported that after leaving OMH in March of 2022, Dr. Lagarde had initially told the State she would be available to testify but that her position had subsequently changed. August 11, 2022 transcript, p. 10.
The State said that it had arranged for the hearing to commence on July 26, but that a different OMH psychologist who had not evaluated Mr. H. would testify, Dr. Floyd. The State said Dr. Floyd was Dr. Lagarde's supervisor. The Respondent's attorney who was covering for the assigned attorney asked for an adjournment since he had not been aware that Dr. Lagarde would not be testifying and wanted to discuss that with the assigned attorney. When the Court asked how the State could sustain its burden through a psychologist who had not evaluated Mr. H., the State said: "he supervised her report and he's adopting her findings, and he can testify based on that". Transcript, p. 8.
When the Court asked why Dr. Lagarde was not available to testify, the State repeated that she no longer worked at OMH and said it didn't have "further details" regarding her unavailability to testify for a few hours over one day at a virtual hearing. Id. The Court said the fact that Dr. Lagarde no longer worked at OMH did not mean she was unavailable to testify at a virtual hearing and asked the State for an email or affidavit explaining her unavailability.
On July 28, the State again asserted that because Dr. Lagarde no longer worked at OMH and was "working as a psychologist in a completely different capacity... she's not available to testify in this case". Transcript, p. 3. The State also asserted that it was "not allowed" to subpoena Dr. Lagarde to provide an expert opinion. Id. The Respondent asserted that Dr. Lagarde could be required to testify about her previously provided expert opinion contained in her written evaluation report. The State again said it wanted to call Dr. Floyd. The Respondent pointed out that another judge of this Court had previously subpoenaed a witness to recite a previously rendered expert opinion in an Article 10 case.
The State next said it was not permitted to subpoena Dr. Lagarde because she lived "out of state" and said it would not reveal the State she lived in to protect her privacy. The State later indicated Dr. Lagarde worked in New Jersey. The Court said an out-of-state witness could be subpoenaed to testify at a virtual hearing. The Respondent pointed out that it was standard practice for medical professionals who had left their prior employment to testify about medical treatment they had provided in their former positions.
The State recited Dr. Lagarde's work commitments and the Court again said that did not make her unavailable to testify. The Respondent asked that he be released, since the State was not prepared to go forward and "doesn't seem to understand that his [the Respondent's] liberty right and his due process rights should be trumping her [Dr. Lagarde's], you know, two hours of inconvenience". Id. p. 9. The Court denied that release application explaining that it did not believe such a release was authorized under the statute before a hearing determination.
On August 2, Dr. Lagarde provided an affidavit. She reported that she currently had three jobs as a psychologist: two of which required her to work a total of more than 60 hours per week and one of which required her to work more than 15 hours per month. "Due to the demands of my current employment obligations, I am unable to allocate time to former OMH assignments without undue hardship and risk to my current career priorities". Dr. Lagarde also said she was traveling for "personal/family" reasons and would thus not be available for two weeks and then again for nine days in the fall and then again would be traveling in the winter although that final trip had not yet been scheduled.
In an appearance on August 4th, the Court said it could obviously schedule a hearing to not conflict with Dr. Lagarde's travel plans but that it did not believe her affidavit established that she was otherwise unavailable. The State again said it wanted to call Dr. Floyd to testify because "he was her supervisor when she drafted the report" and would "offer the same opinion of confinement and he would corroborate her findings". Transcript, pp. 4-5. The Court said that it did not believe the State could meet its burden at the hearing by substituting the witness who conducted the evaluation which was the basis for the petition and was available to testify [Dr. Lagarde] with a different psychologist who would "say I've read the report [Dr. Lagarde's report] and I agree with her". Id., p. 6. The State also asserted that Dr. Floyd could do more than simply read Dr. Lagarde's report but could also review some of the underlying records she reviewed. The State opined that if Dr. Floyd was "not doing his own evaluation and that he's merely, you know, adopting her findings as her supervisor, frankly there's not much - to me there's not much difference". Id., p. 9.
The Court said that it was not acceptable for the State to refuse to present the testimony of Dr. Lagarde because she was "too busy at work" and that if the State continued to refuse to present Dr. Lagarde's testimony it would consider a motion to dismiss the petition. The Court said it believed the State should subpoena Dr. Lagarde to testify and said it would sign a court-ordered subpoena. The Court then set a motion schedule for a motion by the Respondent to dismiss the petition because of the State's continuing refusal to call Dr. Lagarde.
The State next again argued that it was powerless to compel Dr. Lagarde's testimony because she was an expert witness. The Court responded that Dr. Lagarde would primarily testify as a fact witness and that it believed the State could subpoena her testimony. The State then said it believed it could require Dr. Lagarde to testify but that "[s]he wouldn't give her opinion". August 4 transcript, p. 19. The State then said it would like to have Dr. Floyd prepare a new evaluation of the Respondent acknowledging this was the first time the State had suggested such a new evaluation and that it hadn't talked to Dr. Floyd about it yet.
In an email to the State on August 5, 2022, the Court offered the State the opportunity to supplement Dr. Lagarde's affidavit regarding her assertion that being required to provide virtual testimony through a court-ordered subpoena for a couple of hours would, as she asserted, pose a "risk to my current career priorities". The Court asked whether any of Dr. Lagarde's employers had threatened to take adverse employment actions against her because of her compliance with a subpoena. No response was ever provided.
On August 10 the State then for the first time, by email, asked that the Court authorize OMH to appoint a new psychiatric examiner to evaluate the Respondent who would be able to prepare a report within 45 days, instead of calling Dr. Floyd. On August 11, in response to what it characterized as the State's "constantly evolving position", the Respondent asserted that it had been prepared to go forward with the hearing since July 12, that the 30 day time limit for the commencement of the hearing had now elapsed and again requesting the Respondent's release, a release the State opposed. The Court then conducted another proceeding with the parties the following day, August 11.
Also on August 11 in an email, the Court directed that the case proceed with Dr. Lagarde's testimony through a court-ordered subpoena which the Court subsequently signed. The Court provided 15 separate dates for the hearing for Dr. Lagarde to choose from which would not conflict with her travel plans and Dr. Lagarde did testify pursuant to a court-ordered subpoena on September 6. The Court said that "there's no basis to continue to confine the respondent in a psychiatric facility for you to hire another expert when you have an expert who's perfectly capable of presenting the evidence that you want to present available now." Transcript, p. 11. Explaining its rejection of the State's new request for the appointment of a new psychiatric examiner the Court said:
Your request for a new examiner would result in the Respondent's continued confinement for at least another two months (up to 45 days plus additional periods for the provision of a report, the Respondent's expert's review and scheduling). That assumes, moreover, that apart from this unjustified scheduling delay, Article 10 would allow you to appoint a new examiner when the existing examiner is available to testify and when the report [of that examiner] is the basis for the Respondent's confinement pending the hearing. I don't think that is permissible under the statute in any event. August 11 email from the Court.
During the appearance on August 11, the State then said that if it called Dr. Lagarde, it would also like to call Dr. Floyd. The State cryptically opined at one point that it did not believe Dr. Lagarde alone would meet the State's burden. The State provided no explanation for why this might be, but the reason became evident on the day Dr. Lagarde appeared to testify. The Court again denied the request to call Dr. Floyd, since he had not evaluated Mr. H. The Court said that in its 14 years presiding over Article 10 cases, it had "never heard an application by any party to have an expert testify and then to have another expert testify and say I just read that report, you know what, I think so too." Transcript p. 16.
Testimony of Dr. Clare Lagarde
Dr. Lagarde began her testimony on September 6 with a discussion with the Court about her desire to speak "off-the-record" so as not to "anger anybody". After a further on-the-record discussion revealed that Dr. Lagarde did not understand the meaning of "off-the-record" she revealed the issue she wanted to address: although she had prepared a comprehensive report about the Respondent's condition in July of 2021, she refused to review any of the very limited new psychiatric records which had been generated since then or render any current opinion about the Respondent's condition:
I am prepared to answer questions about my report, but I did not prepare to provide new - I did not prepare to provide a new opinion about the case and that's because I, I understand there are new records, I did not review the new records and the reasoning for that is because I have not been formally engaged by this state as an independent evaluator and so I did not believe that that was my responsibility to, to review those records". Transcript pp.15-18.
After being asked by the Court whether this was a matter of not being paid [something the Court would have ordered if asked] she said it was not an issue of payment but of being "unwilling and unable to take this on". Id. The Court then said:
You have a respondent, Mr. H., who is facing the possibility, as you know, of being confined in a psychiatric facility for the rest of his life and all I'm asking of you is, having done an initial report, to look at some updated records and form a new opinion and you're essentially telling me you're refusing to do that, right? Id. p. 19.
Dr. Lagarde responded that she was "not available" and did "not consent" to reviewing any additional records and providing a current opinion. Id. The State reported that Dr. Lagarde was a "reluctant witness who is not cooperating". Id., pp. 19-21. The State also reported that it had discussed with Dr. Lagarde being paid for her work but "[s]he just wasn't interested". Id., p. 23. Further, according to the State, Dr. Lagarde had told the State, "I'm only going to testify if you make me". Id., p. 110. The Court had no indication that Dr. Lagarde would not provide a current opinion or review updated records prior to her testimony since the State did not disclose this information to the Court prior to the hearing. The State then reported that it had been aware of Dr. Lagarde's position on that issue for some time, however. The Court had earlier authorized the State to provide updated records to Dr. Lagarde to review.
In response to Dr. Lagarde's assertion that she was "not available" the Court said that was a legal determination and that she was available. Id., pp. 21-23. The State opined that it was able to sustain its burden at the hearing without any current opinion by Dr. Lagarde, and so had not believed it necessary to inform the Court that Dr. Lagarde would be relying upon records and an expert opinion which were 14 months old. The State also explained that it had hoped and expected that Dr. Lagarde would relent and review updated records but she refused to do so.
Dr. Lagarde then testified regarding her assessment of the Respondent, based on a record review, noting that Mr. H. had refused to be interviewed by her. Her written report was also received in evidence subject to a few redactions. During her testimony, it was evident that Dr. Lagarde did not recall many of the details in her report although she said she had reviewed it. She said that Mr. H. failed to attend some substance abuse treatment appointments, and used alcohol and cannabis while on SIST and receiving substance abuse treatment. He also failed to meet with his parole officer and had SIST curfew violations.
Dr. Lagarde's report indicated that upon being released to SIST during the second of the two periods he was in the community Mr. H. generally complied with SIST conditions, was reconnecting with his mother and stepfather and was working at a bodega. DOCCS [the New York State Department of Corrections and Community Supervision] expressed concerns, however, about Mr. H. missing a sex offender treatment session and being terminated from his job, with that termination arising both from his status as a sex offender and behavior problems. He had a sexual liaison he did not report and deflected criticism from the SIST team. Mr. H. was generally compliant with sex offender treatment but also missed or was late to appointments and dishonest about sexual activities and substance abuse. He was noted as "marking time" on SIST.
Mr. H.'s parole officer said Mr. H. was at once very open and very guarded. His curfew compliance had improved. He did not participate in substance abuse testing on dates it was scheduled and was not initially forthcoming about his alcohol abuse. Mr. H. had relationships with women who were apparently in distress and living in homeless shelters with children, with the presence of children being a potential risk factor. Treatment providers indicated that while Mr. H. had goals regarding a career and moving out of a shelter, he did not act to advance them.On April 23, 2021 DOCCS was told by the director of a substance abuse treatment program Mr. H. was attending that he had been seen smoking marijuana with another resident. No toxicology tests were conducted to verify this. The most serious allegation concerning Mr. H.'s behavior on SIST arose from a parole incident report alleging threatening conduct towards a woman staff person who worked as a liaison at the homeless shelter Mr. H. had resided in.
According to the incident report, following the discharge of the Respondent from his shelter for misconduct, he approached the liaison, who was pregnant at the time (hereinafter the "complainant") on April 13, 2021 cursing and screaming at her and blaming her and another employee for having him evicted from the shelter and then placed at a different shelter on Wards Island. Mr. H. told the complainant he was drunk. She reported that she attempted to move away from Mr. H. but he moved closer. There is no evidence Mr. H. knew the complainant was pregnant.
This incident followed Mr. H.'s abrupt transfer from the shelter he was residing in to the Wards Island Shelter, where he encountered a resident he previously had an altercation with at the original shelter. Mr. H. reported that this other resident had previously struck Mr. H. On April 10, Mr. H. contacted his parole officer from his mother's apartment and said he would not stay at the Wards Island Shelter. DOCCS was able to monitor Mr. H.'s whereabouts because he was wearing his GPS device. Mr. H. was directed to go back to the Wards Island shelter to see if a transfer could be arranged and returned to the shelter. Mr. H. was angry at the complainant because he believed she had lied to him, telling him his previous assailant would not be at the Wards Island Shelter. Mr. H. also blamed the complainant for his drinking and the fact that his parole officer would see him drunk.
Mr. H. aggressively threw away his wallet and a pack of cigarettes and then retrieved them. The complainant walked across the street and Mr. H. screamed at and followed her and demanded she stop. The complainant reported that she felt threatened and went into a store for safety where store employees then apparently encountered Mr. H. Mr. H. followed her into the store and slammed items from his pocket into the wall. When the police arrived, Mr. H. left although there was no evidence he left because the police had arrived. NYPD and DOCCS declined to arrest Mr. H. He reported that he had blacked out and did not recall the incident.
The incident report relayed two threatening statements Mr. H. allegedly made. The Court precluded evidence of those statements which were alleged to have been made by Mr. H. to an unidentified store employee or employees, then relayed by the store employee or employees to the complainant (who had not heard them), then relayed by the complainant to DOCCS and finally testified to by Dr. Lagarde. The Court found this evidence was insufficiently reliable and inadmissible pursuant to the Court of Appeals holding in State v. Floyd Y. 22 N.Y.3d 95 (2013).
Dr. Lagarde diagnosed Mr. H. with Antisocial Personality Disorder ("ASPD"), Alcohol Use Disorder, Cannabis Use Disorder and a provisional diagnosis of Sexual Sadism Disorder. He blamed members of the treatment team for his alcohol use while on SIST. Mr. H. was also deceitful concerning the scheduling of substance abuse testing. Dr. Lagarde opined that Mr. H. evidenced aggressiveness, inconsistent responsibility and impulsivity. She testified that as of the date of her report on July 2, 2021, Mr. H. was a DSORC. He continued to demonstrate ASPD and an inability to follow rules. He became angry and then fantasized about violence which increased his re-offense risk. Dr. Lagarde acknowledged that she had not considered any information regarding Mr. H. which post-dated her July 2, 2021 report.
In response to repeated questions by the Court about whether her opinion was current, DR. Lagarde repeatedly said her opinion was based on information she understood on July 2, 2021 and "I don't have an opinion [about whether Mr. H. was a DSORC] currently". Id., p. 39. "I mean I can't make an opinion about his current functioning at this time because I have not read records; all I know is from my report.... In terms of an opinion at this time, I cannot have an opinion as I did not review the records". Id., p. 41.
Dr. Lagarde said a provisional diagnosis is made when there is a strong presumption of a diagnosis but not enough evidence for the full diagnosis to be assigned. She said that violence was noted to be associated with both of Mr. H.'s prior sex offenses and that there was evidence this violence was also arousing for Mr. H. She opined that his behavior in threatening the complainant demonstrated impulsivity, anger, the desire for retribution and a disregard for another person which were consistent with his prior offense cycle. Mr. H.'s problems with substance abuse treatment highlighted his inability to control his behavior. Mr. H. abused substances prior to his first sexual offense against his step-mother.
Mr. H.'s total time in the community while under SIST was about 1 year and 9 months during which time he was not arrested for committing a sexual offense. Mr. H. has not had a positive drug test while on SIST although he has not been present on days when drug tests were scheduled. In December of 2020, he had a verbal altercation with another shelter resident and walked away from it, after which the other resident hit Mr. H. on the head. Dr. Lagarde scored Mr. H. with a "4" on the Static 99R risk assessment instrument indicating a 5 year recidivism rate for offenders with the same static risk factors of between 8.4 and 10.1 %. She opined Mr. H. had sexual deviance with respect to her provisional diagnosis of Sexual Sadism Disorder.
Dr. Lagarde said there is not currently evidence Mr. H. has sexual preoccupation or an emotional attachment with children. He is close to his mother and stepfather. He has had a combative relationship with his twin brother and was unable to live with his parents, in part, because his brother lives there. Dr. Lagarde did not recall much regarding Mr. H.'s sex offender treatment except that he had generally not made much progress. He was sent to a detox program and then a residential drug treatment program in April of 2021 but had to leave after two weeks. DOCCS unsuccessfully sought to place him in another program. He was released from this program on May 3 and arrested for the parole violation on May 5, three weeks after the confrontation with the complainant.
Testimony of Dr. John Shields
Dr. Shields testified for the Respondent on November 21, 2022 and opined that Mr. H. was not a DSORC. He issued a report dated July 11, 2022. He reviewed records and interviewed Mr. H. twice by webcam for a total of 8 hours in January and March of 2022. Dr. Shields said that during his interviews, Mr. H. was cooperative and engaged without any obvious impairment. He described Mr. H. as "high energy" and said he was sometimes passionate and indignant and sometimes sullen and somber. Dr. Shields said Mr. H. struck him as "institutionalized" and noted his long prison confinement. He said Mr. H. had a lot of difficulties and challenges and would be a "handful" no matter where he went.
Dr. Shields opined that Mr. H. had a lot of issues and treatment needs and might get into trouble but no diagnosis or behavioral condition which made him likely to commit a sex crime. He said he did not believe Mr. H. had a Mental Abnormality under Article 10. He used three tools in his analysis, the Static 99R, the Psychopathy Checklist Revised (the "PCLR") and the Sexual Sadism Screening Scale. Dr. Shields scored Mr. H. with a "5" on the Static 99R.
Dr. Shields considered the fact that Mr. H. was in the community for a little less than 2 years without the commission of a sex offense, even during periods he was intoxicated. He concluded that Mr. H. did not have a deviant sexual interest which he said was among the most significant of sexual offense risk factors. The initial offense evidenced arousal with sadistic behavior. The 2002 crime against the correction officer was, according to this Court's prior trial decision, a sexually motivated crime. To diagnose Sexual Sadism Disorder, you must look at 11 items under the scale Dr. Shields used. He opined that Mr. H. does not have a full or provisional diagnosis of Sexual Sadism Disorder. 3 of the 11 criteria were met. The 3 factors were that Mr. H. had an early onset of sexual offending, was single and had prior sexual offenses.
Mr. H. had most of the "criminologic" factors Dr. Shields analyzed. He has a lot of antisocial traits and features and many traits criminal offenders share, but Dr. Shields opined he did not have ASPD. He has dynamic risk factors including hostility, impulsivity and a lack of intimate relationships. Mr. H. has high levels of anger and indignation and has violated supervision conditions. It would be preferable if he complied with SIST conditions but Mr. H.'s SIST violation did not implicate sexual offending.
Mr. H. handled the SIST violation incident poorly and said some of the allegations regarding it were not true. He said he had been drinking for 5 days straight and had learned that his parents were ill at the time. Dr. Shields said it was reasonable to conclude that the complainant felt threatened and described the incident as a "confrontation". Mr. H. denied threatening the complainant. Dr. Shields opined that this incident was not informative about whether Mr. H. would commit a sexual offense although it might be probative regarding his risk to commit a new non-sex crime.
Regarding protective factors which tend to reduce risk, the more time spent offense-free in the community the less likely a person is to re-offend. Dr. Shields reviewed updated records following his July, 2022 report from the STARC Oakview OMH facility where Mr. H. has been housed which extended until August of 2022. OMH records during this period showed an "ebb and flow" but indicated Mr. H. had reasonably good or adequate participation in treatment. There was no evidence he sexually offended during this period.
Dr. Shields diagnosed Mr. H. with Post-Traumatic Stress Disorder ("PTSD"), Alcohol Use Disorder and antisocial traits. Mr. H. has said and Dr. Shields agrees that Mr. H. has a substance use disorder, focusing on alcohol abuse. Substance abuse treatment has not been provided to Mr. H. at STARC Oakview. Mr. H. has sought such treatment but been told it was not available. Substance abuse treatment is of critical importance for Mr. H. His substance use problems are particularly significant when he is not in custody. Substance use lessens inhibitions, can increase impulsivity and impacts people differently. Substance use can increase antisociality in persons who have antisocial traits.
Mr. H. has not received adequate substance abuse treatment at STARC Oakview. He is also not receiving appropriate treatment for PTSD and the failure to treat both conditions adequately is problematic. Mr. H. told Dr. Shields that he was an addict and needed treatment. Mr. H. has a severe and complex trauma history which has been grossly underestimated and not been the focus of any intervention. It is not uncommon for persons with PTSD to engage in substance abuse when trauma is triggered. Mr. H.'s trauma history included domestic violence committed by his father against his mother. Mr. H. was also subject to childhood sexual abuse and physical abuse. Later, he was sexually violated repeatedly while in custody as a teenager. The trauma is complex because it is of more than one type and across multiple periods.
Mr. H.'s hostility and antisociality may be the result of PTSD. Dr. Shields does not believe there is evidence Mr. H. had conduct disorder prior to age 15, which is necessary for an ASPD diagnosis. He recommended that Mr. H. receive an intensive in-patient substance abuse treatment program and intensive psychotherapeutic intervention to address his PTSD. These interventions would both benefit Mr. H. and promote public safety. Dr. Shields opined that there was "no evidence" of an inability of Mr. H. to control sexually offending behavior in the community, at least during the past 20 years. Mr. H. has had ample opportunity to sexually offend since that time and there is no evidence he has. Dr. Shields opined that substance abuse was not implicated in either the 1996 or 2002 offenses and that it was unclear whether Mr. H.'s trauma history was implicated in either offense. With respect to the 2002 offense, Mr. H. conceded that there was a sexual encounter but described it as consensual.
The "Individual Service Plan" ("ISP") Reviews
Mr. H. has been confined at the STARC Oakview facility since November 11, 2021 and a 9 page ISP review covering the period from December 17, 2021 until July 29, 2022 was received in evidence. It was noted generally that Mr. H. was making "minimal progress". His attendance in treatment sessions was consistent and he had made "significant progress" in attending sessions but he complained about the facility and was sarcastic, although he adjusted in response to criticism. It was noted that he sought alcohol use treatment but that it wasn't offered and that his comments in group sessions were sometimes positive and sometimes counterproductive.
It was noted that he was making "minimal progress" in addressing his criminogenic needs. He was said to have engaged in a physical altercation [no information was provided about this and there was no indication it resulted in any discipline] and making "moderate progress in Health Education/Management". It was reported that he was making "minimal progress" in "treatment" since he was not participating in recreational or work programs and instead spending his time socializing or watching television or movies. On July 29, 2022, Mr. H. was reported to have said: "I feel I am well enough and stable enough to be in the community moving forward, mentally, physically, and emotionally" (page 9).
CONCLUSIONS OF LAW
The standard which courts must use in determining whether to subject a sex offender found to have a Mental Abnormality to confinement or SIST is provided by MHL § 10.07 (f):
If the court finds by clear and convincing evidence that the respondent has a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility, then the court shall find the respondent to be a dangerous sex offender requiring confinement. In such case, the respondent shall be committed to a secure treatment facility for care, treatment, and control until such time as he or she no longer requires confinement. If the court does not find that the respondent is a dangerous sex offender requiring confinement, then the court shall make a finding of disposition that the respondent is a sex offender requiring strict and intensive supervision, and the respondent shall be subject to a regimen of strict and intensive supervision and treatment in accordance with section 10.11 of this article. In making a finding of disposition, the court shall consider the conditions that would be imposed upon the respondent if subject to a regimen of strict and intensive supervision, and all available information about the prospects for the respondent's possible re-entry into the community" MHL § 10.07 (f).
State v. Michael M.
In State v. Michael M., 24 N.Y.3d 649 (2014) the Court noted that to be a dangerous sex offender requiring confinement, the State had to demonstrate the respondent had "such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined". 24 N.Y.3d at 658 (emphasis in decision). The Court held the statute "clearly envisages a distinction between sex offenders who have difficulty controlling their sexual conduct and those who are unable to control it. The former are to be supervised and treated as "outpatients" and only the latter may be confined." Id. at 659. The evidence in the case, the Court said, indicated the Respondent was struggling with his sexual urges, not that he was "unable to control himself" or "unable to govern his sexual conduct". Id. " But more than this - the inability to control sexual misconduct - would have had to be shown to prove that respondent was a dangerous sex offender requiring confinement." Id.
Basis for the Court's Conclusion
A motion for a directed verdict should be granted when there is "no rational process by which the trier of fact could base a finding in favor of the non-moving party". Boriello v. Loconte, 181 A.D.3d 856 (2nd Dept 2000); Herbold v. LaBarre, 176 A.D.3d 1428 (3rd Dept 2019); Wright v. New York State Office of Mental Health, 134 A.D.3d 1483 (4th Dept 2015) lv denied, 137 A.D.3d 1633 (4th Dept 2016). The evidence on a motion for a directed verdict must be viewed in a light most favorable to the non-movant and the motion must be decided without weighing evidence, judging the credibility of witnesses, or determining facts in dispute. Boriello, 181 A.D.3d at 858. A DSORC hearing is not a trial, but the directed verdict statute allows a judgment on an "issue" and so may be applied to such a hearing. See Wright (reversing directed verdict that Respondent was not a DSORC); Tweedy v. Bonnie Castle Yacht Basin, 73 A.D.3d 1455 (4th Dept 2010); Baker v. Shepard, 276 A.D.2d 873 (3rd Dept 2000) (directed verdict only on liability proper).
A directed verdict was required in this case, in the Court's view, because the State's sole witness provided no evidence about the question at issue during the hearing: whether the Respondent was currently a Dangerous Sex Offender Requiring Confinement. The State bore the burden of proving that designation by clear and convincing evidence. As Dr. Lagarde testified: "I don't have an opinion [concerning whether the Respondent was a DSORC] currently". The Respondent pointed out during argument that Article 10 explicitly contemplates that a Respondent who was found to have a Mental Abnormality and is a DSORC on one date, must be assessed by the Court again a year later to determine if that designation still applies. MHL § 10.09. That statute requires that the State demonstrate that a respondent is "currently" a DSORC to avoid a respondent's release. MHL § 10.09 (h). Thus, implicit in the statute is the obvious proposition that a person's mental condition may change over time. See Groves v. State of New York, 124 A.D.3d 1213 (4th Dept 2015) (Article 10 concerns the question of whether a respondent" currently suffers from a 'Mental Abnormality'") (emphasis added).
The Court of Appeals has repeatedly recognized that Article 10 "essentially envisions a battle of the experts to determine whether the respondent has a mental abnormality". State v. Floyd Y., 22 N.Y.3d 95, 105-106 (2013) (internal quotation omitted); State v. John S., 23 N.Y.3d 326, 345 (2014) (same). In this case, with respect to the State's expert, the battle was not joined.
The United States Supreme Court has held that the civil confinement of dangerous persons not only requires the presentation of facts. It requires expert psychiatric opinions. "Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists". Addington v. Texas 441 U.S. 418, 429 (1979) (emphasis in original). Presuming there might be a case where this command could be violated and a court could reach a psychiatric conclusion that a Respondent had an inability to control sexually offending behavior without any psychiatric evidence such a condition currently existed this is not that case. The only expert opinion regarding Mr. H.'s current condition at the hearing was that he was not a DSORC. As the Court noted during an argument: "I don't think there has ever been a case in the whole history of Article 10 where the State sustained a burden with someone who said that they didn't know anything about what has happened [regarding a respondent] in the last 14 months". Id. p. 109.
The State in this case, in the Court's view, acted in good faith and faced an extraordinarily difficult task in attempting to work with Dr. Lagarde. But the Court also disagreed with the various arguments and actions the State took in an effort to address her recalcitrance. After initially relaying what the State said was inadvertent inaccurate information about Dr. Lagarde's availability, the State made the following arguments: Dr. Lagarde was unavailable to testify for a few hours at a virtual hearing because she no longer worked at OMH and was very busy. Dr. Floyd, an OMH psychologist who had not evaluated Mr. H., could testify in her place. The Court was powerless to subpoena Dr. Lagarde because she was an expert witness. The Court was powerless to subpoena Dr. Lagarde because she lived out-of-state. The Court should confine Mr. H. in a psychiatric facility for additional months while the State obtained a new expert to testify in place of Dr. Lagarde, who was available to testify. Finally, the State argued that it sustained its burden by presenting a witness who had no knowledge or opinion about any aspect of the Respondent's condition currently or for the past 14 months.
As the Court said during an argument, had the State, even in the days prior to the hearing, simply informed the Court that its witness was refusing to provide a current opinion sufficient to meet the State's burden the Court may have granted an application to replace Dr. Lagarde. The State did propose alternatives to Dr. Lagarde's testimony at various times, however, which the Court denied. These issues are next analyzed.
Dr. Lagarde Was Available to Testify
Being busy at work does not make a witness unavailable to testify in a judicial proceeding. That is particularly evident when such testimony is indispensable, the witness is offered the opportunity to testify virtually, the testimony consumes only a few hours, the testimony is scheduled to accommodate the witness's travel schedule and the witness is offered significant hourly compensation for her time. Here, in addition of course, Dr. Lagarde did testify. She was obviously available to do so.
The Court Was Entitled to Subpoena Dr. Lagarde
In arguing that the Court was powerless to compel Dr. Lagarde's testimony the State cited the case of Metropolitan Coordinating Council on Jewish Poverty v. FGP Bush Terminal, 1 A.D.3d 168 (1st Dept 2003). In that case, the Court affirmed the trial court's quashing of a subpoena by a plaintiff for a defendant's expert witness "since involuntary expert opinion testimony may not ordinarily be compelled, and there were no circumstances upon which an exception to this rule might have been premised." That case involved allegations that the plaintiff had suffered property damage from a flood.
The Court of Appeals in Gilly v. City of New York, 69 N.Y.2d 509 (1987), however, in a case cited by the Metropolitan Coordinating Council court articulated a contrary principle under circumstances directly on point to what actually occurred in this case: a subpoena by the plaintiff to a defense expert medical witness in a medical malpractice case who had already examined the plaintiff, written a report on his findings and come to an expert conclusion. The Court held the trial court erred in quashing the plaintiff's subpoena to compel the defendant's expert's testimony, including the expert's opinion. The Court explained that its conclusion in a case like this furthered the truth-seeking function, that the expert was not compelled to provide an opinion, but only to report an opinion he had previously provided (as here) and that the expert had voluntarily involved himself in the case, (as here), so was not being compelled to provide expert opinion evidence in a proceeding he had no connection to. Indeed, since the issue here was not a subpoena to an opposing party's expert but to the State's own expert, the policy rationales outlined in Gilly would appear to be even more compelling.
The Court would further note that Dr. Lagarde has never asserted the argument made by the State: that her testimony could not be compelled; that the vast majority of Dr. Lagarde's testimony was as a fact witness and that her testimony was indispensable, since her opinion was the sole basis on which the State alleged the DSORC determination was made. A court-ordered subpoena for Dr. Lagarde's virtual testimony was also proper even though she lived in an undisclosed other state (and worked in New Jersey). See CPLR 3119; CPL Article 640.
It Was Not Proper to Substitute Dr. Floyd for Dr. Lagarde
Psychiatric evaluations are the heart of Article 10. Such evaluations, along with associated exhibits, are always the most important and often the only evidence presented at trials and hearings. Psychiatric evaluations are necessary as a matter of constitutional due-process under Article 10 because "the severity of the mental abnormality itself must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." Kansas v. Crane, 534 U.S. 407, 413 (2002) (citations omitted): State v. Donald DD. and Kenneth T. 24 N.Y.3d 174 (2014). The Court of Appeals has explained that Article 10 Mental Abnormality determinations are based on a "detailed psychological portrait" of a respondent provided by an expert psychologist or psychiatrist. Id., 24 N.Y.3d at 188.
Psychiatric evaluations offer the State extraordinary license to admit "devastating accusations" of horrific sex crimes through what would otherwise be rank inadmissible hearsay under the guise that such testimony "does not come into evidence for its truth" but only to understand an expert's conclusions. Floyd Y., 22 N.Y.3d at 106, 107. The psychiatric expert's conclusions alone are then considered a legally sufficient basis to subject a previously convicted sex offender who has completed his criminal sentence to potential lifetime confinement, a deprivation of liberty more extreme than occurs in all but the rarest of criminal prosecutions.
The constitutional due-process imperative for psychiatric evaluations, their authority to dispense with bedrock evidentiary rules and the unique coercive power they sanction brook no further shortcuts. These authorities are not transferrable to a psychologist who "supervised" an evaluator, read a report or could "offer the same opinion of confinement". Dr. Lagarde during her hearing testimony and in her 31 page written evaluation did not mention Dr. Floyd once, or volunteer that he played any role in assessing Mr. H. In this Court's view, allowing Dr. Floyd to testify in place of Dr. Lagarde would have violated both the Article 10 statute and the Respondent's due-process rights.
Article 10 cases are civil proceedings and it has been held that the Fifth Amendment right to confront witnesses does not apply under Article 10. Floyd Y., 22 N.Y.3d at 104. Here, the sole witness pursuant to which Mr. H. had now been confined pending this determination for 1 ½ years, however, has been Dr. Lagarde. In the Court's view, Mr. H. was also entitled to confront Dr. Lagarde, if she was available, under the Article 10 statute and as a matter of due-process.
Dr. Lagarde's testimony was also essential for a related reason: Her July 2, 2021 report, along with representations by Mr. H.'s parole officer were the sole bases for State's petition. Without Dr. Lagarde's report the State's pleading would be a nullity. The Article 10 statute clearly envisions that the evidence presented to support a DSORC petition come from the psychiatric professional whose opinion resulted in the petition. MHL § 10.11 (d) (4) (a petition for confinement "shall be accompanied by any written evaluations or reports by a treating professional indicating that the respondent may be a dangerous sex offender requiring confinement.")
It Was Not Proper to Grant the State's Belated Request for a New Psychiatric Evaluation
The State did not take up the Court's offer to have a new examiner conduct a new psychiatric evaluation when that offer was conveyed on June 17, 2022. It asked for that authority two days prior to the expiration of the 30 day period to conduct the hearing, on August 10. Granting that request would then have delayed commencing the hearing for at least two additional months, during which the Respondent would remain confined. Article 10 time deadlines are generally observed in the breach and the long delay in conducting this hearing was primarily caused by the work of the Respondent's expert. There was no basis to substitute a new examiner to conduct a new examination, however, when the existing examiner was continuously available to testify about the evaluation she had already conducted. Finally the State's decision to not inform the Court that Dr. Lagarde intended to refuse to provide a current opinion and to rest after presenting only her testimony required the directed verdict.
New SIST Conditions
The Court is required to release the Respondent with appropriate SIST conditions including "compliance with a specified course of treatment". MHL § 10.11 (a) (2). It seems obvious to this Court, and as Mr. H., his attorney and Dr. Shields have all urged, that Mr. H. should be placed in an in-patient substance abuse treatment program, focusing on alcohol abuse. The Court also agrees with Dr. Shields that Mr. H. appears to need intensive treatment to address his PTSD and agrees with the Respondent's counsel that Mr. H. should be outfitted with a SCRAM alcohol detection device.
The Court directs OMH and DOCCS in preparing revised SIST conditions to review these issues and discuss them with Respondent's counsel. The Court will confer with the parties on Mr. H.'s revised SIST conditions as soon as possible and issue a subsequent order directing Mr. H.'s release. This constitutes the Decision and Order of this Court.