Opinion
Index No. 251433-2016
05-02-2022
In the Matter of the STATE of New York, Petitioner v. JOHN B., Respondent.
Ms. Shelley Forde, Esq., New York State Attorney General's Office Ms. Kimberly Tate-Brown, Esq., Mental Hygiene Legal Service
Ms. Shelley Forde, Esq., New York State Attorney General's Office
Ms. Kimberly Tate-Brown, Esq., Mental Hygiene Legal Service
Tara A. Collins, J.
By the instant petition filed in January 2020, petitioner seeks an order pursuant to Mental Health Law § 10.11 (d) revoking the respondent's regimen of strict and intensive supervision and treatment (SIST) and committing him to a secure treatment facility. Following a hearing, the Court rendered an oral decision on April 25, 2022, determining that the respondent is a dangerous sex offender requiring confinement as that term is defined in MHL § 10.03 (e) and ordered the respondent's civil confinement pursuant to MHL § 10.07 (f). This written decision is issued to supplement the Court's oral decision.
PROCEDURAL HISTORY
The respondent was arrested for a sex offense on May 3, 2013, while on post-release supervision for another sex offense. In the new case (hereinafter "the qualifying offense"), the victim was a 36-year-old female who worked in the hotel where the respondent was staying (Dr. Floyd's Report [Jan. 28, 2020], Appendix A: Dr. Eisenstein-Rosan's Article 10 Report, at 8 [Sept. 23, 2016]). The respondent asked the victim if she could help with opening his room door because he was having trouble with his key. When the victim opened the door using her key card, the respondent pushed her into his room, hit her mouth and pulled her towards his bed. The respondent further grabbed her waist and torso area underneath her breasts and placed his hands on her buttocks. The victim screamed and struggled until other hotel workers and patrons came to help her. The respondent fled the hotel, but he was apprehended later that day and charged with Attempted Rape in the First Degree and other related charges. Ultimately, he pleaded guilty by a superior court information to a count of Attempted Sexual Abuse in the First Degree and sentenced to four years of incarceration and 12 years of post-release supervision.
Following his conviction for the qualifying offense, the respondent was referred for an Article 10 evaluation by Dr. Pola Eisenstein-Rosan. In her report dated September 23, 2016, Dr. Eisenstein-Rosan diagnosed the respondent with "schizoaffective disorder, bipolar type, multiple episodes, currently in partial remission, severe cocaine use disorder ... and antisocial personality disorder" (id. at 39). She concluded that the respondent "suffers from a congenital or acquired condition, disease or disorder that (1) affects his emotional, cognitive, or volitional capacity in a manner that predisposes him/her to the commission of conduct constituting a sexual offense and (2) results in serious difficulty in controlling such conduct" (id. at 40).
On or about December 13, 2016, a hearing was held to determine whether probable cause existed to believe that the respondent suffers from a "mental abnormality" as the term is defined in MHL § 10.03 (i). Following the hearing, the respondent was committed to a secure treatment facility. In October 2017, following a week-long jury trial, the respondent was adjudicated a sex offender requiring civil management under MHL Article 10.
Subsequently, a dispositional hearing was held in March 2019. By a written decision dated May 1, 2019, the Honorable Michael Gross determined that the respondent is a sex offender requiring strict and intensive supervision ( MHL § 10.03 [r] ). On or about June 28, 2019, the respondent was informed of the conditions governing his regimen of SIST and such conditions were imposed. The respondent was released from custody on the same date.
The respondent's release lasted only several months. He failed to attend scheduled treatment appointments at the sex offender treatment program on December 19 and December 23, 2019. He was unsuccessfully discharged from the sex offender treatment program. He tampered with his GPS device. He also threatened to commit suicide by jumping off of the Brooklyn Bridge. Based on these alleged violations of his SIST conditions, the respondent was taken into custody on January 9, 2020. In addition, the respondent was later detained on Parole Warrant No.823262 for assaulting and injuring another resident at his psychiatric facility.
On January 29, 2020, Justice Gross found that there was probable cause to believe that the respondent is a dangerous sex offender requiring confinement and signed an Order to Show Cause. The case was assigned to this Court for a hearing in February 2022, which commenced on March 22, 2022.
At the hearing, the petitioner called Dr. Trevor Floyd, a board-certified psychologist who interviewed the respondent, as a witness. The parties stipulated to admission of 1) Dr. Floyd's Curriculum Vitae, 2) Dr. Floyd's report dated January 28, 2020, 3) Dr. Floyd's report dated March 2, 2021 and 4) Dr. Floyd's report dated January 14, 2022. The respondent also testified at the hearing. The Court credits Dr. Floyd's testimony and makes the following findings of fact.
FACTS
The respondent's first reported sexual offense dates back to March 5, 1997. He was 35 years old at the time. In that case, it was alleged that the respondent openly masturbated in a public area at the Bronx Community College. The respondent stated to the police that he was at the location to masturbate while looking at attractive women's feet. He claimed that he had done this approximately 10 to 50 times before he was arrested. He pleaded guilty to Disorderly Conduct and was sentenced to a conditional discharge.
The respondent's next arrest occurred on January 17, 2008, at 46 years of age. In this incident, two females, 15 and 18 years of age, knocked on the respondent's door to sell magazine subscriptions. The respondent invited them into his apartment. He unzipped his pants and removed his penis. As the females were attempting to leave the apartment, the respondent grabbed a butter knife and poked the 18-year-old in her stomach. He covered her mouth with his hand. The victim bit his hand. The respondent punched her in the face. The 15-year-old attempted to unlock the door to leave, but the respondent placed his hands on her face, and reached into her pants to touch her buttocks. The 15-year-old victim was able to break free and call the police. The respondent was arrested, and ultimately pleaded guilty to Sexual Abuse in the First Degree. He was sentenced to two years in prison and 10 years of post-release supervision. The respondent admitted to being intoxicated on crack cocaine during the incident.
Prior to his release from prison, the respondent was evaluated pursuant to MHL Article 10 in September 2009. In a written report dated September 11, 2009, Dr. Kunkle diagnosed the respondent with "Exhibitionism," "Paraphilia, Not Otherwise Specified," "Cocaine Dependence," "Psychotic Disorder, Not Otherwise Specified," and "Adult Antisocial Behavior" (Dr. Floyd's Report, at 2 [Jan. 28, 2020]). After noting the decade-long hiatus between two sexual offenses, Dr. Kunkle concluded that the respondent did not have serious difficulty controlling his behavior (id. at 2-3). He determined that the respondent's "instant offense is most consistent with his pattern of exhibitionism and this is likely his most serious sexual disorder. His physical assault on the older girl during his instant offense fits more of a pattern of general violence towards women and did not appear to fit a pattern of sexually motivated violence" (id. at 3).
The respondent was released on post-release supervision on October 19, 2009. He was violated in February 2011 when he verbally threatened his clinician and returned to prison. He was re-released on September 7, 2012.
A few months later, while still being on post-release supervision, the respondent was arrested for the qualifying offense on May 3, 2013. He was 51. The new incident involved a 36-year-old female hotel employee. The respondent forced the victim into his hotel room, punched her in the mouth, and grabbed her torso, waist and buttocks. He admitted to being high on crack cocaine. He pleaded guilty to Attempted Sexual Abuse in the First Degree. He was sentenced to four years of incarceration and 12 years of post-release supervision.
Once again, an MHL Article 10 examination was conducted. In a report dated September 23, 2016, Dr. Eisenstein-Rosa opined that the respondent suffers from "Schizoaffective Disorder, Bipolar Type, Multiple Episodes, Currently in Partial Remission," "Cocaine Use Disorder, Severe, in Sustained Remission, in a Controlled Environment," and "Antisocial Personality Disorder" (Dr. Floyd's Report [Jan. 28, 2020], Appendix A: Dr. Eisenstein-Rosan's Article 10 Report, at 34-37 [Sept. 23, 2016]). Dr. Eisenstein-Rosa concluded "[t]hese three disorders work synergistically in Mr. B[ ]’s psychology to increase his difficulty in controlling his sexual offending behavior" (id. at 39). Specifically, Dr. Eisenstein-Rosa provided:
[The respondent] has repeatedly reported not knowing why he committed his sex offenses—except he desired immediate sexual satisfaction and when he could not obtain it, he resorted to violent behavior. He has also reported not planning his offenses. They are impulsive. It is very difficult for Mr. B[ ] to control impulsive acts. His schizoaffective disorder bipolar type has likely reduced his cognitive capacity to generate different ways of obtaining the sexual satisfaction he desires aside from grabbing the first woman or teenager who presents herself ... In addition, his antisocial personality disorder would not hold him back from sexually offending because this disorder means the person behaves recklessly, impulsively, does not care what happens to the other person—or sometimes, even themselves. In light of these two disorders, as he has repeatedly said, when he smokes crack, he cannot control his sexually offending behavior. It is as if the drug removes any remaining brakes he may have and in the light of increased sexual desire, he has not been able to turn back. (id. ).
In October 2017, Dr. Eisenstein-Rosa's findings and other relevant materials were presented at a jury trial. The jury found that the respondent was a sex offender requiring civil management. After a dispositional hearing, the respondent was placed on a regimen of SIST. On or about June 28, 2019, the respondent was released after being informed of the conditions governing his regimen of SIST. As relevant to this decision, the following SIST conditions were imposed:
#5 I WILL participate in and successfully complete sex offender treatment approved by the NYS Department of Corrections and Community Supervision. This treatment may include, but is not limited to, a psycho-sexual evaluation, a polygraph examination and/or other screening instruments. I shall sign a waiver of confidentiality allowing the Court, the Office of Mental Health, (the Office of People with Developmental Disabilities), the office of the Attorney General, and the NYS Department of Corrections and Community Supervision to communicate with the treatment provider and have access to the treatment providers’ records.
#13 I WILL NOT behave in such manner as to violate the provisions of any law or Order of Protection to which I am subject, nor Will I engage in behavior that threatens the safety or well-being of myself or others.
SC #29 I WILL enter and complete sex offender treatment as directed by my Parole Officer and remain in treatment until its completion and WILL NOT leave without knowledge and permission of my Parole Officer.
SC #30 I WILL follow the directives of my sex offender treatment, and attend treatment regularly, participate fully in treatment and not miss scheduled treatment appointments. I WILL report any difficulties I experience in my treatment to my provider and my Parole Officer.
SC #63 I WILL cooperate fully with the implementation of a GPS or ELECTRONIC MONITORING PROGRAM . I WILL NOT tamper with ANY equipment and WILL ensure that all equipment is returned to the NYS Department of Corrections and Community Supervision upon competition. I WILL charge my unit as directed by my parole officer.
(Petitioner's Exhibit AA). The respondent initialed next to each special condition and signed at the bottom acknowledging that he read and understood all of the conditions of his Strict and Intensive Supervision and Treatment and that he received a copy of it.
After his release, however, the respondent violated Condition #5 and Special Condition #29 by being unsuccessfully discharged from a sex offender treatment program at the New York Mental Health Group (id. ). The respondent also violated Condition #13 by threatening his well-being when he informed RevCore Recovery Center staff on January 1, 2020 that he was planning to jump off the Brooklyn Bridge. Finally, the respondent violated Special Condition #30 by being unsuccessfully discharged from a sex offender treatment and failing to attend scheduled treatment appointments on December 19 and December 23, 2019 (id. ).
On January 9, 2020, the respondent was taken back in custody and the instant petition commenced to determine whether the respondent's level of disposition must be modified. Dr. Floyd conducted an evaluation. He reviewed the materials from the New York State Office of Mental Health, past Article 10 Psychiatric Evaluation Reports by Dr. Kunkle and Dr. Eisenstein-Rosa, SIST documents, sex offender risk assessment tools, sex offender treatment records, and the respondent's Rap Sheet and Parole Chronos. He has also spoken to Parole Officer Rosa Nunez, and the respondent's sex offender treatment provider, substance abuse treatment provider, and mental health treatment provider. He also conducted an interview of the respondent at the North Infirmary Command on Rikers Island on January 24, 2020.
Having reviewed these materials, Dr. Floyd concluded, within a reasonable degree of professional certainty, that the respondent suffers from "Schizoaffective Disorder, Bipolar Type," "Cocaine Use Disorder, Severe, in a Controlled Environment," "Antisocial Personality Disorder with Borderline Traits," and "Hypersexuality" (tr at 17). According to Dr. Floyd, schizoaffective disorder bipolar type is "a serious mental illness that is similar to schizophrenia in that the person must demonstrate symptoms of schizophrenia such as delusions, hallucinations, disorganized speech or behavior" (id. ). At the same time, "unlike schizophrenia, there must also be a significant mood component either depressive symptoms or mania or both" (id. ). Dr. Floyd testified that the respondent has a "lengthy history of paranoia, delusions. He's reported hallucinations and he has been observed to be disorganized in his behavior at times, which is consistent with schizoaffective disorder" (id. at 27). The respondent also has "depressive symptoms such as the suicidality" and at times also exhibited "some symptoms that appear to suggest manic episodes in the past" (id. ).
Cocaine use disorder is "assigned when someone has a history of problematic substance use that has impaired their functioning to some degree," according to Dr. Floyd (id. ). The respondent informed Dr. Floyd that he had committed crimes to support his drug habit, and that using crack cocaine has caused problems in his relationships and resulted in losing housing. The respondent was also under the influence when he committed both of his felony sex offenses.
Dr. Floyd explained that antisocial personality disorder with borderline traits "involves a pattern disregard for in violation of the rights of others" that is "not merely an acute issue that comes up, but it is very consistently present in their functioning in various aspects in their life" (id. at 17). Dr. Floyd testified that the respondent has displayed "disregard for social norms as evidenced by engaging in behavior that is grounds for arrest, impulsivity, irritability and aggressiveness, irresponsibility, affective instability" (id. at 27).
Finally, hypersexuality is defined as "stronger than usual urge to have sexual activity" (id. at 17-18). Dr. Floyd stated that he gave this diagnosis for the respondent based on his comments about "being addicted to sex. Having been involved in sex with a large number of partners; masturbating frequently to pornography, sometimes multiple times per day; engaging with prostitutes; attending peep shows; and utilizing sex phone lines, 900 numbers" (id. ). However, the respondent's attorney brought out during cross-examination of Dr. Floyd that hypersexuality has not been approved for inclusion in the Diagnostic and Statistical Manuel of Mental Disorders, a publication by the American Psychiatric Association for classification of mental disorders, and is only mentioned in the glossary (id. at 42).
Dr. Floyd testified that he concluded that the respondent is a dangerous sex offender requiring confinement based on several factors. Initially, he testified that the respondent's diagnoses came together at times to make his "reality" to become "less intact" (id. at 28). He elaborated as follows:
And so, now, in his sex offenses, for example, he's reported he was on crack cocaine which further impaired his ability to make good decisions, to think about the consequences of his behavior, but that is also related to his anti-social personality disorder with his impulsivity, his aggressiveness, disregard for social norms.
And his schizoaffective disorder causes this emotional instability. He does report he experiences a great amount of stress which he has sought to cope with in various way [sic]. As I said, some more healthy than others; going outside of his residence and screaming. It may look strange to other people, but it does not appear to harm anybody. On the other hand, he talked about masturbating more frequently, that in itself does not harm anyone either, but it does appear that, at least on some occasions he has chosen to engage in sexual behaviors to cope with his distress in ways that have harmed other people, the victims of the sex offenses.
(id. at 28-29).
More recently, Dr. Floyd emphasized that the respondent has "demonstrated evidence of multiple dynamic risk factors for sexual recidivism, including noncompliance with supervision, sexual preoccupation, impulsivity, poor problem-solving skills, and hostility" (id. ). Turning first to the respondent's noncompliance with supervision, Dr. Floyd described the respondent's repeated failures to complete a sex offender treatment program. Beginning with his failure to complete a sex offender treatment program during incarceration for his first felony sex offense, the respondent was also removed from a program that he was attending while on post-release supervision because he threatened the provider. Similarly, when he was incarcerated for the qualifying offense, he attended a prison-based sex offender treatment program but was removed after one year due to psychiatric symptoms interfering with his treatment participation. The respondent was enrolled in another sex offender program at St. Lawrence Psychiatric Center, but did not finish. After his release on a regimen of SIST, the respondent was enrolled in an outpatient program with Dr. McCarthy. Once again, he was discharged in January 2020 when the provider felt that she could no longer provide him with effective treatment because of the respondent's behavior in the program.
In providing further background information about these failures, Dr. Floyd discussed how the respondent failed to engage in the program. He was often not open and forthcoming with his sex offender treatment providers. The respondent stated to Dr. Floyd that "he should not have to share information about his sexual thoughts, about his masturbation, that he does not need that kind of treatment" (id. at 31). The respondent often appeared distracted during the sex offender treatment program and was not internalizing the material. The respondent masturbated in the public bathroom at his transitional residence, which highlighted his impulsivity and sexual preoccupation, according to Dr. Floyd. Moreover, while the respondent was incarcerated for violating the SIST conditions, numerous referrals were made to Central New York Psychiatric Center for reasons related to his sex offender treatment program. However, the respondent denied that he has a psychiatric illness, and the clinician at CYNPC declined to diagnose him with serious mental illness or provide him with treatment for his psychiatric condition.
In addition to the repeated failures to complete the sex offender treatment program, Dr. Floyd also testified about how the respondent became medication non-compliant and his behavior worsened. For instance, after Justice Gross found probable cause to believe that the respondent violated his SIST conditions, he was hospitalized at St. Lawrence Psychiatric Center beginning in March 2020. While there, he refused to take his prescribed drugs, Abilify and Seroquel, while claiming that he did not have a psychiatric illness. For example, on March 12, 2020, his second day at St. Lawrence, the respondent refused to take medication yelling, "I'm not taking them. Take me to court and get a mandate ... see what happens!" (Dr. Floyd's Report, at 1 [Mar. 2, 2021]). On March 19, 2020, he again refused saying "I don't need medication" because he did not have a psychological condition, but only experienced "issues" caused by his medication (id. at 2). On April 8, 2020, he stated, "If that Doctor tries to give me meds again I will punch him in the fucking face," "I want everyone to die," and "You can cut my penis off and hang it on the wall, but give me my freedom" (id. ). On August 1, 2020, staff reported that the respondent stated, "if a doctor came to speak to him about his medication again, he would rip apart his clothes and come out of his room naked, and he also said he would kill a staff member if they met outside of the facility" (id. ). On September 26, 2020, he said to a female staff member, "I just need a woman because I'm sexually frustrated, I need a woman like you" (id. at 3).
As time went on, the respondent became more emotionally dysregulated. He screamed out loud, tore up books, clothes, made aggressive statements to other people including staff, and spoke of being controlled by devils and needing to starve himself. For instance, on July 2, 2020, he stated to the staff, "I'll kill you, you motherfucker, I'll kill all of you," and accused the staff for making him tear apart his books (id. at 2). On May 28, 2020, he approached a peer and attempted to provoke a physical fight (id. ). On May 29, 2020, he said that he had torn apart his clothes stating it was "all because of these fuckers, they're making me so destructive ... These people are making me destructive, just like when I was outside of here ... I wish I had the courage to kill myself" (id. ). When the respondent is dysregulated, his assignments from the sex offender treatment program "typically consist of crumpled pieces of papers whose contents reflect disorganized thought patterns" (Dr. Floyd's Report, at 4 [Jan. 14, 2022]). During his sex offender treatment program sessions, the respondent "frequently isolates himself, demonstrates paranoia, and appears internally preoccupied" (id. ). Also, "he often has difficulty recalling information that was recently presented and when he does speak in group, he tends to discuss things that are unrelated to the group topic" (id. at 4-5). The respondent also reported that he was masturbating all day and he was tired of it.
The respondent became increasingly paranoid as well. At one point, he was urinating in a container in his room because of his perceived concern that the staff were monitoring him and listening through the microphone. He was observed to regularly sit in a corner with his back to others in the room. On November 23, 2020, the respondent said, "Shhh, they have microphones in this place and can hear us" (Dr. Floyd's Report, at 3 [Mar. 2, 2021]). On November 28, 2020, the respondent jumped out of his chair and yelled, "I don't care, I'll smoke crack and cigarettes and I will look at pornographic magazines" (id. ). This type of behavior culminated in an incident with another resident in March 2021. When the other resident reported to the nurse that the respondent was repeatedly running around the halls without his clothes, the respondent shoved the resident to the ground, breaking his hip. The resident had to get a surgery. The respondent was arrested and charged with harassment.
Another area of non-compliance was failing wear a GPS unit as required. When the respondent's parole officer visited the respondent's housing unit to investigate alerts from his GPS device, they found that the GPS device was still intact, but it was not on his body.
Dr. Floyd also discussed how the respondent's poor problem-solving skills were concerning. The respondent's inability to appropriately handle stress has manifested in various forms such as abuse of crack cocaine, negative emotions and suicidal statements and behavior.
The respondent has a lengthy history of abusing crack cocaine. He reported to Dr. Floyd that he had committed crimes in the past to support his habit. He also stated that his use of cocaine has caused problems in his relationships and resulted in losing housing. The respondent was under the influence when he committed both of his felony sex offenses. Although no evidence was presented at the hearing to suggest that the respondent is currently using crack cocaine, he told staff at his substance abuse program on January 1, 2020 that he had a plan to jump off the Brooklyn Bridge, which was located near the program. Following his brief admission at Mount Sinai, the respondent stated to his parole officers that "he did not mean it, and that he was under a lot of stress and not happy with his life; he also expressed to RevCore he felt he had the following three options: 1) Going back to prison[,] 2) Jumping off the Brooklyn Bridge, and/or 3) Going crazy" (Dr. Floyd's Report, at 6 [Jan. 28, 2020]).
The respondent has a long history of mental health hospitalizations related to suicidal behavior or statements. The first reported incident goes back to 1997 when he was hospitalized after a suicide attempt. Since being diagnosed with schizoaffective disorder around 2002, the respondent has presented with disorganized behavior, delusions, auditory hallucinations, specifically hearing voices that tell him to harm himself. In addition to the statement about jumping off of the Brooklyn Bridge, the respondent attempted to hang himself in May 2021 while he was incarcerated.
The respondent's poor management of his stress has also led to negative emotions. The respondent has informed Dr. Floyd that he found being on SIST to be stressful. Dr. Floyd wrote in his report:
Mr. B[ ] has identified stress as a significant contributor to his offense pattern; he has explained, "he was stressed and overwhelmed just prior to his offenses and according to Mr. B. these offenses ‘made it go away.’ " Mr. B[ ] has purported experiencing a significant level of stress since his release to the community, which he has linked to the conditions at his residence and overall adjustment to SIST supervision. It is thus to his credit that Mr. B[ ] has not relapsed on drugs, which he has identified as another element of the offense cycle. Nonetheless, Mr. B[ ] told me that he has considered using substances on multiple occasions as a means of coping with his stress.
While he has apparently not acted on those urges to relapse, Mr. B[ ] has engaged in various other problematic behaviors due to his elevated stress levels, including standing outside his residence and screaming. Mr. B has also been noted to become increasingly paranoid when distressed in recent months; as Dr. Eisenstein-Rosan wrote in her 2016 report, Mr. B[ ]’s schizoaffective disorder is linked to his offense pattern, as it leads to increased hypersexuality, violent sexual thoughts, and impaired problem solving. It is to his credit that Mr. B[ ] has remained compliant with his psychiatric medications, however, it is concerning that he told me that he does not believe that he requires them, and he has been resistant to dosage increases when ordered.
(Dr. Floyd's Report, at 22 [Jan. 28, 2020]). The respondent "on various occasions stated that he wants to, or will, return to either prison or the secure treatment facility, due to feeling overwhelmed by his life stressors. This progressed to his recent expression of a plan to commit suicide, necessitating his admission to the emergency room" (id. at 23). The respondent has also spoken about the fact that his sex offenses occurred at times when he was experiencing a lot of stress (id. at 19). During his testimony at the hearing, however, the respondent testified that he wished to return to SIST and he would "try harder" (tr at 63) and that he was "determined" to get the help that he needs (id. at 64).
When discussing the risk management considerations, Dr. Floyd explained the respondent's scores on two separate actuarial sex offender risk assessment instruments. The respondent scored 8 on the Static-99R, which placed him in the Well Above Average risk group for recidivism (Dr. Floyd's Report, at 22 [Jan. 28, 2020]). The individuals in this group are five times more likely to commit another sex offense when compared to the typical offender (id. ). Also, Dr. Floyd stressed that the respondent's "scores on the ACUTE-2007 have gradually increased over time, such that he currently scores as a High risk for sexual recidivism on that dynamic risk instrument as well" (id. ).
In the end, Dr. Floyd underscored that the goal of SIST is to address the offenders’ "sexual behavior, learn ways to control it better, and then ultimately to no longer need civil management" (tr at 32). However, the respondent's lack of interest in continuing to engage in sexual treatment program was alarming "[e]specially for someone with an offense pattern like his where he committed his two felony offenses at his home with victims who just happened to come to his door. That is an offense pattern that can't really be interrupted" (id. ). Accordingly, the doctor stressed that the only interruption is to commit the respondent.
During his testimony, the respondent proffered reasons for his poor behavior. He stated that he was having difficulty with completing homework assignments for the sex offender program because he did not have a stable place where he could study (tr at 54). Furthermore, even when he completed the assignment, the program provider "still would've not been satisfied with the work because she wanted the work to be done a specific way" (id. ).
As for becoming medication non-compliant, the respondent testified that "it wasn't just me. And it was a lot of factors why I stopped taking the medication" (id. at 56). However, he struggled to provide reasons for why he became medication non-compliant. In the end, he stated that he had difficulty with obtaining housing. When he was asked to discuss what happened in the incident where he assaulted his peer, the respondent testified that it was "all pre-fabricated" and "orchestrated" (id. at 58). The respondent also stated that if he could be returned to a regimen of SIST again, he would "try harder" (tr at 63) and that he was "determined" to get the help that he needs (id. at 64). However, he did not offer any concrete ways to do so such as becoming medication compliant or participating more actively in the sex offender program.
On cross-examination, the respondent testified that he always yelled, slammed objects, ripped up clothing when he became enraged because that is how he communicated with his family members growing up (id. at 65). He also admitted that he experienced stress inside the facility as well as outside in the community.
LEGAL ANALYSIS
In a hearing to determine whether the detained sex offender is required to be confined following a violation of SIST conditions, the same standards apply as "when the proceeding is brought while the sex offender is still incarcerated" ( State v. Michael M. , 24 NY3d 649, 658 [2014] ). The petitioner has a burden to establish by clear and convincing evidence that the offender is a "dangerous sex offender requiring confinement in accordance with the standards set forth in subdivision (f) of section 10.07" ( MHL § 10.11 [d] [4] ). The Court is "not limited to considering only the facts of the SIST violations" that prompted the revocation proceeding, but it is entitled to "rely on all the relevant facts and circumstances tending to establish that respondent [is] a dangerous sex offender" ( State v. DeCapua , 121 AD3d 1599, 1600 [4th Dept 2014] [internal citation omitted], lv denied 24 NY3d 913 [2015] ).
A "dangerous sex offender requiring confinement" is defined as "a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and 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 to a secure treatment facility" ( MHL § 10.03 [e] ). By contrast, a "sex offender requiring strict and intensive supervision" is defined as a "detained sex offender who suffers from a mental abnormality but is not a dangerous sex offender requiring confinement" ( MHL § 10.03 [r] ). "Mental abnormality," in turn, 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] ). The MHL "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" (Michael M. , supra , at 659).
Here, the petitioner argues that the respondent is a dangerous sex offender requiring confinement. Under the totality of circumstances, she contends that the respondent's criminal history, his stated and demonstrated addiction to sex, diagnoses of his mental conditions including schizoaffective disorder, hypersexuality and cocaine use disorder, and his failure to complete a sex offender treatment program establish that he must be civilly confined. On the other hand, the respondent argues that he must be returned to SIST under the least restrict alternative doctrine promulgated in Michael M. (supra ). The respondent maintains that the petitioner has failed to prove that he has strong predisposition to the commission of conduct constituting a sex offense and that he has an inability to control such conduct. For instance, he emphasizes that there was no evidence that he is currently using crack cocaine, or that he engaged in overt sexual behavior in the public. He also questions the validity of Dr. Floyd's diagnoses of hypersexuality and the results from the actuarial risk assessment tools.
Having carefully considered the facts presented in this case, relevant case law, materials submitted by both sides and the testimony adduced at the hearing, the Court concludes that the respondent is a dangerous sex offender requiring confinement. The Court's decision is guided by two appellate division cases, State v. Raul L. (186 AD3d 607 [2d Dept 2020] ) and State v. Leon F. (84 AD3d 1098, 1101 [2d Dept 2011] ). In Raul L. , the Appellate Division, Second Department, affirmed the Supreme Court's decision to confine the respondent. In doing so, it emphasized, in relevant portions:
Throughout the entirety of the respondent's confinement and incarceration, he has never successfully completed any sex offender treatment program. The respondent was violent and "destructive" in group therapy, and repeatedly threatened and assaulted his treatment providers and other staff members. During interviews with treatment providers and evaluators, the respondent threatened to kill the judge who sentenced him; indicated that he derived excitement out of humiliating, tormenting, hunting, and hurting other people; and indicated that he kept a "revenge" list in his mind of people he intended to retaliate against. The respondent also repeatedly feigned psychiatric illnesses that he did not have in an attempt to manipulate the evaluators. Up until the time of the subject dispositional hearing, the respondent continued to make threats and express a desire to kill facility staff members.
The respondent has indicated that he believes that he did not commit a sex offense, and has repeatedly denied responsibility for his actions, maintaining that his impulse to commit the subject offense was caused by a reaction to certain medications he was taking for mental illness at the time, a theory that was rejected by the jury at trial and by the State's experts throughout these proceedings. When testifying at the dispositional hearing, the respondent refused to discuss the commission of the subject crime, and was unable to identify what caused him to sexually offend or to identify the triggers to his behavior.
(id. at 610). Similarly, in Leon F. , the Second Department also affirmed the Supreme Court's decision to confine the respondent as a dangerous sex offender in a case where "the appellant's deviant sexual interests, history of parole violations, indifference to rules, inability to self-regulate, and antisocial attitudes and behaviors made it likely that he would sexually reoffend" ( 84 AD3d 1098, 1101 [2d Dept 2011] ). In that case, the appellant had been removed from sexual offender treatment programs on three previous occasions, made threats against court and court personnel, and continued to demonstrate inability to control his impulses (id. ).
In the instant case, the Court is convinced that the respondent is a dangerous sex offender requiring confinement and must be committed to a secure treatment facility for care, treatment and control until such time as he no longer requires confinement. At the outset, similar to the individuals in Raul L. and Leon F. , the respondent has never successfully finished any sex offender treatment in spite of being required to do so in multiple settings. As Dr. Floyd stated, the goal of SIST is to address the offenders’ "sexual behavior, learn ways to control it better, and then ultimately to no longer need civil management" (tr at 32). That purpose cannot be achieved when the respondent refuses, or at least shows great reluctance, to participate in the program by threatening the provider, failing to do the assigned work, refusing to discuss sexual behavior and thoughts, missing scheduled attendance, and refusing to take proper medication.
In addition, as the respondents in Raul L. and Leon F. , the respondent has been violent and destructive to the peers and staff in his residential and program setting, and never fully acknowledged his mental illness. Mr. B. refuses to receive appropriate mental health treatment, except when in crisis, and has been medication non-compliant. His testimony showed a real lack of insight into his mental health condition and need for treatment. He was often rambling and was unable to stay on task and answer questions put to him. For instance, when the respondent was asked by his attorney to explain why he stopped taking the medication, he answered that it was because he did not like the housing unit that he was assigned (id. at 56-58). When he was asked to explain why he attacked his peer, he testified that he was talking to the nurse about a potential infection to his leg when his peer approached them (id. ). His peer was "verbally abusing [him] and attacking [him]" without any consideration for the fact that the respondent's room was very cold because of his peer's use of an air conditioner in the middle of the winter (id. ). Because the peer continued to be abusive, the respondent "lightly pushed him" and "he fell over very easily like a stick" (id. ). According to the respondent, "at that time, I knew it was like fabricated" (id. ). Examples such as these were alarming to the Court because they showed the respondent's disorganized thought process, as are typical of someone suffering from a mental health disorder. Moreover, the respondent did not articulate any plans to improve his compliance with rules.
The respondent also exhibited paranoid thinking such as when he expressed concerns that the staff at St. Lawrence were monitoring and listening to him or how he needed to starve himself to drive the devil out of his body. Moreover, he has engaged in violent outbursts while in St. Lawrence Hospital. Those outbursts led to him destroying property, threatening to harm others and himself and actually physically assaulting another patient. This led to a parole violation and additional criminal charges being filed against him. Despite this, during his testimony at the hearing, he took no responsibility for anything related to him, placing the blame on the victim or the way that he was brought up. He was not forthcoming with the medical staff at the Central New York Psychiatric Center, and his non-compliant behavior also resulted in leaving a GPS device off of his body in violation of his SIST condition.
Finally, the respondent's refusal to discuss his preoccupation with sex is deeply troubling. Despite engaging in inappropriate behavior such as masturbating in a public restroom or running naked in the halls, or increased frequency in masturbating, he has repeatedly refused to talk about his sexual thoughts, his masturbation and other sexual behaviors because he does not need "that kind of treatment" (tr at 31). Moreover, the respondent's scores on the risk assessment instruments place him in the high risk group for recidivism. His score has increased over time. Instead of choosing to engage, he has chosen instead to threaten or shut out his providers.
In the end, there is nothing that being on a regimen of SIST can do at this moment to stop the respondent from committing another sex offense. When considering these factors with the respondent's history of impulsively committing sexually violent crimes, the Court concludes that petitioner has established by the requisite clear and convincing evidence that the respondent is a dangerous sex offender requiring confinement ( MHL §§ 10.07 [f] ; 10.11 [d] [4]).
This constitutes the decision and order of this Court.