Opinion
CA2015-002340
08-01-2019
In the Matter of the Application for Discharge of ALBERT A., Consec. No. 30817, from Central New York Psychiatric Center, Pursuant to MHL § 10.09, Petitioner, v. The STATE of New York, The New York State Office of Mental Health, and the New York State Department of Corrections and Community Supervision, Respondents.
Mental Hygiene Legal Service, Fourth Judicial Department, By: Patrick T. Chamberlain, Esq., Senior Attorney, Attorneys for Petitioner State of New York, Office of the Attorney General, By: Bridget S. Thompson, Esq., Assistant Attorney General, Attorneys for Respondents
Mental Hygiene Legal Service, Fourth Judicial Department, By: Patrick T. Chamberlain, Esq., Senior Attorney, Attorneys for Petitioner
State of New York, Office of the Attorney General, By: Bridget S. Thompson, Esq., Assistant Attorney General, Attorneys for Respondents
Gerard J. Neri, J.
Petitioner, Albert A., was served a notice on or about September 9, 2015 advising him of his right to petition for discharge. Petitioner did not affirmatively waive his right to petition for discharge and submitted a Petition pursuant to Mental Hygiene Law § 10.09 seeking discharge or release to the community under a regimen of strict and intensive supervision and treatment verified April 14, 2016 and filed with the Oneida County Clerk April 18, 2016. The Attorney General responded via Verified Answer dated April 29, 2016. Subsequent to a hearing pursuant to Frye v. United States (293 F 1013[DC Cir. 1923] ), moved for an order of preclusion relating to the use of the diagnosis of "Other Specified Paraphilic Disorder, Non-Consent", which the Court granted on August 20, 2018.
An evidentiary hearing was held July 2, 2019. The State submitted the report of Dr. Kevin Burgoyne and offered his testimony. Petitioner submitted the report of Dr. Virginia Barber Rioja, along with subsequent amendment, and offered her testimony.
The task of the Court is to consider the totality of this evidence and determine whether Albert A. suffers from a "mental abnormality" as that term is defined in Mental Hygiene Law § 10.03(i), and if so, whether he is a "dangerous sex offender requiring confinement", as that term is defined in Mental Hygiene Law § 10.03(e). Although Albert A. filed the petition, the State bears the burden of showing by "clear and convincing evidence" that Albert A. fits within these definitions.
Dr. Burgoyne and Dr. Barber Rioja disagreed on whether Albert A. suffers from a mental abnormality. Both agreed and diagnose Albert A. as suffering from Antisocial Personality Disorder, Cocaine Use Disorder, and Unspecified Neurocognitive Disorder. The examiners disagreed on whether these diagnoses can sustain a finding of mental abnormality under Article 10 of the Mental Health Law.
See Report of Dr. Barber Rioja, p. 11 and Report of Dr. Burgoyne, pp. 16-19 of 23
Dr. Burgoyne
"[Albert A.]'s personality structure has affected his emotional (e.g., lack of empathy), cognitive (e.g., lack of remorse), and volitional (i.e., repeatedly engaging in unlawful sexual behavior) capacity in a manner that predisposes him to the commission of conduct constituting a sex offense and results in him having serious difficulty controlling such conduct. His personality structure has provided a platform from which he consistently disregarded the rights of others and repeatedly committed sexual offenses. [Albert A.]'s personality has continued to interfere with his ability to participate and progress in treatment. This has been seen in his emotional instability, his impulsivity, and his interpersonally aggressive behavior."
See Report of Dr. Burgoyne, p. 22 of 23
Concerning Cocaine Use Disorder, Dr. Burgoyne notes, "[Albert A.]'s substance use has been associated with more than one of his sexual offenses. His most recent substance use problem was with crack cocaine. His substance use has factored into his sexual offending cycle and sexual offense behavior." Dr. Burgoyne further notes, "[Albert A.]'s Unspecified Neurocognitive Disorder appears to function as responsivity factor in that it affects his ability to make the changes that would allow him to safely manage himself in the community." Dr. Burgoyne concludes Albert A. suffers from a mental abnormality.
See Report of Dr. Burgoyne, p. 22 of 23
See Report of Dr. Burgoyne, p. 22 of 23
Dr. Barber Rioja finds Albert A. suffers from the same conditions but does not conclude the disorders constitute a mental abnormality under the statute. Dr. Rioja states "it is my opinion that [Albert A.]'s history of rapes results from his antisocial personality disorder, anger, and substance use." Dr. Barber Rioja goes on to quote previous examiners and their conclusions regarding Albert A.:
See Report of Dr. Barber Rioja, p. 9
"As stated by Dr. Rosenfeld, ‘the weight of available evidence points strongly to a combination of antisocial personality disorder, substance abuse, and longstanding anger as the most likely explanation for his history of sex offenses rather than a sexual disorder per se’. Dr. Fabian also opined that ‘his sexual offending appears to be due to antisocial personality disorder by history’. To this writer's [Dr. Rioja's] knowledge, [Albert A.] has not indicated that he is sexually aroused by the victims' signs of non-consent; instead, he has identified anger, ‘wanting to get his way’ and substance use as the main motivators for his sexual violence."
See Report of Dr. Barber Rioja, pp. 9-10
Dr. Barber Rioja goes on to state:
All of the above provides evidence that [Albert A.'s] sexual violence was motivated by a sense of entitlement, anger, substance use, lack and [sic ] of empathy for his victims, lack of respect for others and opportunistic moments, and not by being specifically aroused by coercion. As a result, I do not believe that [Albert A.] meets criteria for a Paraphilic disorder."
See Report of Dr. Barber Rioja, p. 10
What Petitioner and Dr. Barber Rioja fail to understand is that neither the statute nor the Court of Appeals require a finding of a specific paraphilic disorder, it is the "psychological portrait" which defines the existence of a mental abnormality (see Matter of State of New York v. Donald DD. , 24 NY3d 174, 188 [2014] ).
A mental abnormality is defined as "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) ). "Thus, not only must the State establish by clear and convincing evidence the existence of a predicate condition, disease or disorder, it must also link that condition, disease or disorder to a person's predisposition to commit conduct constituting a sex offense (as defined under Mental Hygiene Law article 10) and to that person's serious difficulty in controlling such conduct" ( Matter of State of New York v. James N. , 171 AD3d 930, 931 [Second Dept., 2019] internal quotes and citations omitted ). To clarify, Matter of State of New York v. Donald DD. "did not engraft upon the ‘condition, disease or disorder’ prong a requirement that the ‘condition, disease or disorder’ must constitute a ‘sexual disorder’ " ( Matter of State of New York v. Dennis K. , 27 NY3d 718, 743 [2016] ). Petitioner was diagnosed by both Dr. Burgoyne and Dr. Barber Rioja as having Antisocial Personality Disorder and a substance abuse disorder. From the testimony and evidence presented, it is clear that these two conditions, when combined and untreated in Petitioner, "predisposes him 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) ). Contrary to Petitioner's position, "one may possess a ‘condition, disease or disorder’ that does not constitute a ‘sexual disorder’ but nonetheless ‘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’ " (Dennis K. at 743). "What is required is a more thorough evaluation of the facts related to a particular respondent's behavior and whether those facts, regardless of a label, equate with the definition of mental abnormality as put forth in MHL § 10.03(i)" (The State of New York, Petitioner v. Ronald S, for Civil Management Pursuant to Article 10 of the Mental Hygiene Law. , 2015 NY Misc. LEXIS 365, at 12[Sup. Ct., Nassau County 2015]). Dr. Barber Rioja has made it very clear that Petitioner's Antisocial Personality Disorder and Cocaine Use Disorder predisposes Petitioner to commit sex offenses and he has serious difficulty controlling such conduct. There is " ‘detailed testimony’ about the manner in which [Petitioner's] multiple psychiatric disorders collectively resulting in his having ‘serious difficulty in controlling’ his sexual conduct" ( Matter of Floyd Y. , 30 NY3d 963, 965 [2017] ).
At the conclusion of the hearing, the Court invited the parties to make additional written submissions. Petitioner submitted a detailed Written Summation and Memorandum of Law as a supplement to his counsel's oral summation. Petitioner notes that this review is de novo and the alleged mental abnormality must be shown to exist currently (see Matter of Groves v. State of New York , 124 AD3d 1213 [4th Dept. 2015] ). Petitioner argues the State has not met its burden in showing that a link between Petitioner's cocaine use disorder and his predisposition to sexually offend. However, as stated above, Dr. Rioja noted that Petitioner admitted "he has identified anger, ‘wanting to get his way’ and substance use as the main motivators for his sexual violence" ( emphasis added ). There can be no clearer proof that Petitioner's diagnoses of Antisocial Personality Disorder, as exemplified by "anger" and "wanting to get his way", and Cocaine Use Disorder, as exemplified by "substance use" "predisposes him to the commission of conduct constituting a sex offense". Every Article 10 proceeding is driven by its own specific set of facts. Petitioner cites, and this Court itself has heard, cases where substance abuse does not contribute to a finding of mental abnormality. However, in this situation, the independent examiner herself has identified that the combination of Petitioner's Antisocial Personality Disorder and Cocaine Use Disorder causes him to be predisposed to the commission of conduct constituting a sex offense.
See Report of Dr. Barber Rioja, pp. 9-10
To reinforce the fact specific nature of Article 10 proceedings, Petitioner takes the quote from In the Matter of Justin C. v. State of New York out of context. Petitioner states: "In Matter of Justin C. v. State of New York , Judge Gigliotti of this Court found that the only diagnoses proven by the State's evidence — ASPD and substance abuse disorders — failed to prove a mental abnormality. The court stated that ‘ASPD with only substance use disorders would not be sufficient to establish ‘mental abnormality’ ". Missing from Petitioner's quote is the qualifier Judge Gigliotti used, "in Justin C.'s case". The Court in Justin C. did not say Antisocial Personality Disorder in concert with a substance abuse disorder can never be sufficient, it merely stated that in Justin C's case it was insufficient to establish mental abnormality.
See Petitioner's Written Summation and Memorandum of Law, para. 22 C, quoting Matter of Justin C. v. State of New York , Sup. Ct., Oneida County, June 30, 2015, Gigliotti, AJSC, Index No. CA2014-001444)
Justin C. at 3
Similarly, a closer look at Matter of State of New York v. Raymundo V. shows a clear distinction with the instant matter. "In their reports, petitioner's experts identified only Antisocial Personality Disorder and other personality traits as basis for their findings of mental abnormality. Neither doctor identified their alcohol related diagnosis as a basis for his or her finding of mental abnormality." Again, the instant matter is contrasted by the fact that the expert connected substance abuse to Petitioner's sexual offending.
Matter of State of New York v. Raymundo V. , 47 Misc 3d 909, 913 [Sup Ct, Monroe County 2015]
In Matter of Kenneth G. , while the Court noted Kenneth G. was diagnosed with Severe Alcohol Use Disorder, there is no indication throughout the opinion that such diagnosis was a contributing factor to Kenneth G.'s sexual offending. The issue in Kenneth G. was whether the petitioner was appropriately diagnosed with pedophilia and the court concluded there was insufficient evidence to support such a diagnosis. Once again, the distinction being that in this instance Petitioner's substance abuse diagnosis was directly connected to his sexual offending. Petitioner's remaining cases are similarly devoid of any connections between substance abuse disorders and sexual offending. To the contrary, two cases specifically cite the patient's successful completion of substance abuse programs, thus eliminating the substance abuse disorder as a current concern.
Matter of Kenneth G. , Sup. Ct., Oneida County, March 24, 2014, Gigliotti, AJSC, Index No. CA2013-000842, at 4
Matter of Kenneth G. at 9
See Matter of Edward B. , County Ct., Oneida County, May 9, 2019, Popeo, J.C.C, Index No. CA2015-002146 at 8, and State of New York v. Jason C. , Sup. Ct., Kings County, May 1, 2017, Riviezzo, J.S.C., Index No. 19136-2013 at 17
The Court credits the diagnoses by Dr. Burgoyne and Dr. Barber Rioja of Albert A. having Antisocial Personality Disorder, Cocaine Use Disorder, and Unspecified Neurocognitive Disorder and finds that the State has met its burden proving by clear and convincing evidence that Albert A. suffers from a mental abnormality.
Turning now to the question of whether Albert A. is a dangerous sex offender requiring confinement, the Court must determine whether the evidence shows he has such a strong predisposition to commit sex offenses and such an inability to control this behavior that he is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility. Dr. Burgoyne administered the Violence Risk Scale-Sex Offender Version (VRS:SO) and scored Albert A. at 58.5. Dr. Burgoyne previously administered the VRS:SO on Albert A. and scored him at 58. Dr. Burgoyne explains the change as follows:
See Report of Dr. Burgoyne, p. 21 of 23
See Report of Dr. Burgoyne, p. 20 of 23
"[Albert A.]'s Dynamic Score has increased by 0.5 point due to a loss of progress in his Treatment Compliance. This score would place [Albert A.] in the High risk [sic] range according to standards from 2014 or the Well [sic] above average range according to standards from 2018. According to recent VRS:SO normative data as described above, offenders with similar pre-treatment and change scores as [Albert A.] are estimated to recidivate at a rate of 56.9% over 5 years".
See Report of Dr. Burgoyne, p. 21 of 23, citations omitted
Dr. Burgoyne further
[Albert A.] has repeatedly committed sexual offenses despite detection, harm to his victims, consequences to himself, and an increased level of monitoring in the community. His lifestyle involved repeatedly placing himself in situations in which he could sexually offend against vulnerable females. This initially started with his stepsister and other neighborhood children. It later progressed to [Albert A.] identifying vulnerable women in public such as a female walking home from college, two females who were hitch hiking, his ex-wife's prepubescent daughter, and two women he has described as drug users who were selling sexual services for money."
See Report of Dr. Burgoyne, p. 22 of 23
Dr. Burgoyne further notes: "[Albert A.] has displayed a history of serious interpersonally aggressive behavior which has continued despite his advancing age," then goes on to note numerous examples as recent as February 2019 where Albert A. "engaged in a verbal altercation with a peer which led to him threatening aggressive behavior." Dr. Burgoyne concludes: "[Albert A.] has not addressed the issues that predispose him to the commission of sexual offense behavior. At this time, a release to the community at this time would be premature and would place the community at risk as [Albert A.] would be in a position in which he would likely sexually reoffend."
See Report of Dr. Burgoyne, p. 11-13 of 23
See Report of Dr. Burgoyne, p. 22 of 23
As Dr. Barber Rioja did not find that Albert A. suffered from a mental abnormality, she concludes that he does not need to be "confined to a secure treatment facility." Which makes her next statement all the more puzzling: "Finally, it is my opinion that [Albert A.'s] risk factors can be managed in the community under intense monitoring, supervision and treatment, which Strict and Intense Supervision and Treatment (SIST) can provide." Dr. Barber Rioja elaborates on this by stating "Monitoring and supervision interventions should include, at a minimum, GPS tracking, regular meetings with his PO, and regular drug toxicologies." Even were the Court inclined to release Albert A. on SIST, such a determination would depend upon a finding of mental abnormality. Further, the conditions Dr. Barber Rioja recommends are directly related to Albert A.'s diagnosed disorders of Antisocial Personality Disorder and Cocaine Use Disorder.
See Report of Dr. Barber Rioja, p. 16
See Report of Dr. Barber Rioja, p. 17
See Report of Dr. Barber Rioja, p. 17
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The Court credits Dr. Burgoyne's report and testimony and Dr. Barber Rioja's diagnosis and finds the State has proven by clear and convincing evidence that the psychological profile of Albert A. concludes he suffers from a mental abnormality and currently has such a strong predisposition to commit sex offenses and such an inability to control his behavior that his is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.
THEREFORE , it is hereby
ORDERED , that Albert A. shall continue to be committed to a secure treatment facility designated by the Commissioner; and it is further
ORDERED , that Albert A. shall continue to receive care and treatment pursuant to Mental Hygiene Law, Article 10, and that pursuant to Mental Hygiene Law § 10.09(b), as amended and effective March 31, 2012, Albert A. shall be provided, at least annually with written notice of the right to petition the Court for discharge, and waiver form, pursuant to Mental Hygiene Law § 10.09, at least annually from the date of this decision; and it is further
ORDERED , that Albert A. shall retain any and all other rights provided by Mental Hygiene Law Article 10, including the right to petition the Court in the future for discharge or release under strict and intensive supervision and treatment; and it is further
ORDERED , that copies of all post-commitment documents for treatment, evaluations, assessments, and raw data associated with Albert A. after a finding of mental abnormality and an order of continued confinement shall be retained at the OMH Secure Treatment Facility which is housing him, and that pursuant to Mental Hygiene Law Article 47 and Section 33.16 as referenced in Article 10 of the Mental Hygiene Law, that Mental Hygiene Legal Service Shall have access to all the aforesaid documents; and it is further
ORDERED , that the Court record of this proceeding shall be sealed by the Oneida County Clerk's Office, and such records shall be available only to the parties to this proceeding or upon further order of this Court, except that any and all Court decisions and orders shall be available for usage in the redacted form, as to Albert A.'s identifying information (i.e., first name and last initial), by the parties and counsel to this proceeding for use in other Mental Hygiene Law Article 10 matters.