Opinion
250368-09.
Decided July 19, 2011.
Charles J. Hargreaves, Esq., Kimberly Tate-Brown, Esq., Mental Hygiene Legal Service, Marvin Bernstein, Director, Bronx, New York.
Elaine K. Yacyshyn, Esq., Eric T. Schneiderman, Attorney General of the State of New York, White Plains, New York.
On April 10, 2008, the New York State Attorney General filed a petition, pursuant to Article 10 of the Mental Hygiene Law ("MHL"), contending that Respondent Frank V. is a detained sex offender requiring civil management.
A jury trial in this matter began on May 9, 2011, and was continued on May 10-11, 13,16-20, 2011, and concluded on May 20, 2011.
At the trial, Roger M. Harris, M.D., a psychiatrist, who was qualified by the Court as an expert in the fields of forensic psychiatry and the diagnostic assessment and evaluation of sex offenders, testified on behalf of Petitioner.
Dr. Naftali Garcia Berrill, a psychologist who was qualified by the Court as an expert in the field of forensic psychology, as well as the Respondent himself, testified on behalf of Respondent.
On May 20, 2011, the jury rendered a unanimous verdict that Respondent is a detained sex offender who now suffers from a mental abnormality in that he has a congenital or acquired condition, disease or disorder that affects his emotional, cognitive or volitional capacity in a manner that predisposes him to commit a sex offense and results in his having serious difficulty in controlling such conduct.
As a result of the jury verdict, pursuant to MHL § 10.07(f), the Court provided the parties an opportunity to present additional evidence with respect to the Court's determination as to whether respondent is a dangerous sex offender requiring confinement or a sex offender requiring strict and intensive supervision. That proceeding (the "Dispositional Hearing") began on June 23, 2011, and was completed on July 12, 2011.
At the Dispositional Hearing, Dr. Harris testified again on behalf of Petitioner. Respondent did not present any evidence. Dr. Harris credibly testified that, in his opinion, Respondent was a dangerous sex offender requiring confinement.
Dr. Harris credibly testified that he based his determination that Respondent was a dangerous sex offender requiring confinement upon numerous factors, including certain "dynamic" factors (which are specific to the individual) and Respondent's score of 8 on the Static-99R actuarial risk assessment instrument. Transcript of Dispositional Hearing ("Tr.") at 33-34.
Dr. Harris testified that there were numerous dynamic factors specific to Respondent which increase Respondent's likelihood of re-offending. Tr. at 33-34. First, Dr. Harris testified that he had diagnosed that Respondent suffers from antisocial personality disorder, which disorder also would increase Respondent's likelihood of sexually re-offending (Tr. at 34-35).
Additionally, Dr. Harris testified that Respondent's "profound" inability to control his behavior even while in prison (Tr. at 55), where he committed numerous sexual assaults as well as non-sexual assaults (Tr. at 47, 49, 50, 52, 55), and Respondent's history of non-cooperation with supervision, as evidenced by Respondent's having violated the terms of his conditional release from prison in 2006, by using drugs, increased Respondent's likelihood of sexually re-offending. Tr. at 41-42. Also, Dr. Harris testified that Respondent's "cognitive distortions" that cause him to rationalize his criminal behavior, i. e. Respondent's insistence to parole boards for years that he did not commit the crimes for which he was incarcerated, increase Respondent's risk of re-offending. Tr. at 49. Dr. Harris also noted that Respondent's limited participation in sex offender treatment (Respondent is only at Phase I of five phases of sex offender treatment) increases his risk to re-offend. Tr. at 43-44.
In addition to these dynamic factors, Dr. Harris testified that he had conducted a risk assessment of Respondent using an actuarial risk assessment instrument called the Static-99R, which looks at static historical factors. Tr. at 14, 19. The Static-99R compares Respondent to a category of previously convicted sex offenders with whom Respondent shares characteristics. Tr. at 14-15. That Static-99R identifies the rates at which those men with whom Respondent shares characteristics re-offended. Tr. at 15.
According to Dr. Harris, the Static-99 is the most widely used instrument in the profession to estimate the risk for sexual re-offending in men who have committed sex offenses. Tr. at 14.
Dr. Harris testified that the Static-99 was recently revised in two ways. Tr. at 18, 62. First, the new Static-99R now allows for greater mitigation for age differences so that, as a person ages, the Static-99R estimates that his risk of re-offending decreases. Tr. at 62. Second, the new Static-99R has a broader range of sample group categories against which an individual may be compared. Id. For purposes of Article 10 cases, Dr. Harris testified, individuals are generally compared to the "high risk need" group in the Static-99R. Id.
Dr. Harris credibly testified that the Static-99 and Static-99R are both commonly relied upon by mental health professionals to assess the risk of a sex offender re-offending, and that the authors of the assessment instrument believe that the Static-99R should replace the Static-99. Tr. at 18-19. Courts have accepted this actuarial instrument as a reliable tool upon which an expert may base his or her opinion. State v. McFarland, 29 Misc 3d 1206A, 2010 NY Slip Op. 51705U, *11, *59 (Sup. Ct., New York Co. 2010)("Static-99[R] is a valid actuarial risk assessment instrument").
In 2009, in State v. Rosado, 25 Misc 3d 380, 388 (Sup. Ct., Bronx Co. 2009), the Static-99, not the Static-99R, was determined not to be reliable; such determination primarily was based upon the fact that the Static-99 was under revision at that time. Id. at 408-14. The new revised Static-99R is the result of that revision and has been accepted as reliable in numerous courts. State v. McFarland, 29 Misc 3d 1206A, 2010 NY Slip Op. 51705U, *11, *59 (Sup. Ct., New York Co. 2010); State v. Andrew O. , 68 AD3d 1161 , 1165 (3rd Dept. 2010) (contention by expert witness for Respondent that a person's predisposition [to sexually re-offend] is best determined through use of actuarial risk assessments such as the Static-99), rev'd on other grounds, 16 NY2d 841 (2011) (reversed on the grounds that Petitioner's cross-examination of that same expert about his founding of a new religion warranted a new trial).
Dr. Harris testified that the Static-99R examines 10 factors, nine of which are static. Some of the factors include: whether Respondent's victims were strangers, non-family acquaintances, or males; whether Respondent has had a live-in relationship lasting greater than two years; whether Respondent has any non-contact sexual convictions or non-sexual violent convictions; the number of prior court sentencing dates the Respondent has had; whether violence was used in the instant offense; and whether Respondent was convicted for that violence. Tr. at 32. The non-static factor is Respondent's age. Tr. at 27.
Dr. Harris credibly testified that Respondent's score of 8 on the Static-99R placed Respondent in a high risk group of potential re-offenders. Tr. at 32. (Dr. Harris said that Respondent would have scored 9 but one point was eliminated due to Respondent's age. Tr. at 27.) The sample group that Respondent was compared to, who scored in that range, sexually re-offended at a rate of 45% over a five year period, and 55% over a ten year period, Dr. Harris testified. Tr. at 62-63.
Dr. Harris credibly testified that he had used the Static-99R risk assessment instrument as one piece of data in his overall assessment of whether Respondent meets the criteria for a dangerous sex offender. Tr. at 19.
The Court has consider all of the credible evidence adduced at the trial as well as at the Dispositional Hearing, and finds, by clear and convincing evidence, that Respondent now suffers from a mental abnormality, as that term is defined by Article 10 of the MHL, and that Respondent's mental abnormality involves such a strong predisposition to commit sex offenses, and an inability to control his behavior, that Respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility. The Court therefore finds that Respondent is a dangerous sex offender requiring confinement. MHL § 10.07(f).
IT IS HEREBY ORDERED that Respondent be committed to a secure treatment facility designated by the New York State Commissioner of Mental Health as that term is defined in MHL § 10.03(o); and it is further
ORDERED, that Respondent, receive care and treatment pursuant to MHL § 10.09; and it is further
ORDERED, that Respondent, shall be provided, at least annually from the date of this Order written notice of his right to petition the Court for discharge pursuant to MHL § 10.09; and it is further
ORDERED, that Respondent, 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.