Opinion
No. 32874/2008.
06-24-2014
In the Matter of the Application of The STATE of New York, Petitioner v. Shawn YOUNG, Respondent.
Opinion
By petition dated May 1, 2013, petitioner seeks an order pursuant to Mental Health Law § 10.11(d) finding that the respondent is a dangerous sex offender requiring civil confinement. The respondent opposes the motion, arguing that confinement is not warranted and seeking to remain in the community on a regiment of Strict and Intensive Supervision.
Background and Procedural History
The respondent entered civil proceedings under Article 10 as a result of his 2007 conviction for Sex Abuse in the First Degree (Penal Law § 160.65[1] ). In the underlying 2005 criminal case, the respondent held down an 18–year–old woman and raped her. According to police reports, the respondent had tried to convince the victim to become a prostitute and then raped her when she attempted to leave the apartment from which they both had gone. When questioned by Parole about this offense the respondent stated that the victim was a prostitute and that he did not have sex with her, but that she threatened to tell the police he had raped her if he did not give her money. Upon his plea of guilty, he was sentenced to a term of imprisonment of two years plus three years of postrelease supervision.
At the conclusion of his sentence, by Order dated August 3, 2009, the court determined that the respondent was a sex offender who suffers from a mental abnormality and requires civil management. A term of Strict and Intensive Supervision and Treatment (SIST) was imposed pursuant to Mental Hygiene Law § 10.07 (Mullen, J., Aug. 3, 2009). Upon his release to SIST the respondent lived first with his mother and then with his wife, who he married while he was incarcerated in 2008 and with whom he subsequently had a child.
The respondent violated the conditions of SIST, resulting in a modification of those requirements and ultimately the instant petition for confinement. On August 18, 2011, the respondent was arrested in Atlantic City for public intoxication and yelling profanities at women. He was held by the Atlantic City Police Department for approximately 50 minutes and released. An Atlantic City Police Officer notified the respondent's parole officer, Jose Ramirez, because the respondent left New York (in possible violation of his SIST conditions), and someone in the local police department observed the respondent's electronic monitoring device. As a result of this incident, PO Ramirez issued an Incident Report which noted violations of the respondent's SIST conditions numbered 7, 10, 11, 47 and 62. The respondent was consequently taken into custody pursuant to MHL § 10.11(d)(1) to serve a six-month sentence for his parole violation. On or about February 1, 2012, the respondent was released back into the community under the supervision of the New York State Department of Corrections and Community Supervision (“ DOCCS”) for the purpose of resuming his SIST regimen.
On January 17, 2013, the petitioner filed a petition seeking an order modifying the conditions of SIST pursuant to Article 10. At an evidentiary hearing held on April 9 and April 12, 2013, the petitioner met its burden of showing that the modifications were warranted. This court issued an order modifying the SIST conditions to require that the respondent obtain employment, parenting education and Medicaid coverage. The respondent was thus continued on community supervision.
On April 9, 2013, while waiting outside the courtroom, PO Ramirez observed the respondent arrive holding hands a young woman, identified here as “NR”. The respondent told PO Ramirez that she was a “family member” and subsequently informed the court that NR is his cousin. Having failed to inform PO Ramirez that he was in a consenting adult relationship with her, respondent was later found to be in violation of his SIST conditions.
On April 13, 2013, at approximately 3:30am at the respondent's home in New York, the respondent and the 17–year–old victim, NR, became engaged in an argument. The respondent punched her in the chest, causing her to lose her breath and experience substantial pain and bruising. The respondent continued by punching her in the back, as well. In police reports, NR identified the respondent as her boyfriend and stated that he had caused her injuries; according to the medical records NR informed a social worker that her ex-boyfriend had hit her.
On April 25, 2013, at approximately 2:30am in the vicinity of the respondent's apartment, respondent and NR were again arguing. The respondent kicked her in the buttock, causing substantial pain. When NR began to walk away, the respondent grabbed her purse from her shoulder and ran away. Several hours later, at approximately 5:45am, the respondent was absent from his residence during a curfew verification. As a result of these acts committed against NR, the respondent was arrested and charged with two counts of Assault in the Third Degree and one count of Grand Larceny. PO Ramirez also issued incident reports detailing the assaults and the curfew violation. The respondent's behavior on April 13 and April 25 violated SIST conditions numbered 13, 51, 36 and 45.Upon such evidence that the respondent had violated the conditions of SIST, the petitioner arranged for an evaluation of the respondent by Dr. Frances Charder of the New York State Office of Mental Health (OMH). Dr. Charder opined that the respondent was a dangerous sex offender requiring confinement. Thus, by papers dated May 1, 2013, the petitioner filed an Order to Show Cause and Petition for Confinement pursuant to MHL § 10.11(d)(4).
Hearing Testimony
This court held a hearing on March 25 and March 31, 2014 to determine whether the respondent is a dangerous sex offender requiring civil confinement under Article 10. Defendant appeared, represented by counsel from the Mental Hygiene Legal Service. The court heard testimony from Police Officer Jennifer Burko, Detective James Quilty, Dr. Frances Charder and Dr. Leonard Bard.
Officer Burko responded to a call at Harlem Hospital on April 14, 2013 where she interviewed the complainant, NR, in the pediatric ER unit with her mother. NR stated that the respondent had assaulted and robbed her over the two previous nights. She reported substantial pain and bruising of her chest, knee, back and hip area, of which Officer Burko took photographs. After she was discharged, the complainant accompanied Officer Burko to the precinct to make a statement to Detective Quilty about the reported larceny. As a result of her investigation, Officer Burko learned that the respondent and the complainant were involved in a romantic relationship.
Parole Officer Jose Ramirez was assigned to monitor the respondent on SIST when supervision began in 2011. He testified about the April 2013 incidents, noting that on April 24th he had received a call from Detective Quilty, who reported the circumstances of these incidents, to his knowledge. As the respondent had also failed to report to his office that day, Officer Ramirez' called VeriTracks Monitoring Service on April 25 and learned that the respondent had failed to charge his GPS monitoring device and that the unit was completely dead. When Officer Ramirez arrived at the respondent's residence at approximately 5:45 a.m. on the morning of April 25, during curfew hours, the respondent's wife answered the door but the respondent was not there. The respondent could not be located even after a canvass of the area that included his mother's house located nearby. The respondent finally called Officer Ramirez at approximately 12:00 p.m. on April 25 and proceeded to the office several hours later. When questioned about the assault and whether it involved the young woman Officer Ramirez had met in court, the respondent replied affirmatively that it was her. This time, respondent referred to NR as a “friend.”
Detective Quilty arrested the respondent at the parole office as a result of the curfew violation and the assault, and PO Ramirez prepared a SIST incident report. PO Ramirez concluded that the respondent was in violation of SIST condition No.13, not to threaten the safety or well being of himself or someone else, and # 51, that he be in his approved residence between the hours of 7:00 p.m. to 7:00 a.m. Respondent was not accused of violating condition # 18, which forbade him to have contact with anyone under age 18, because PO Ramirez could not verify NR's age. She would not come to his office; nor did she testify at the present court hearing. On April 26, 2013, Officer Ramirez received a “hit notice” indicating that the respondent had been arrested and that criminal charges were filed against him.The court heard expert testimony from Dr. Frances Charder, a licensed psychologist employed by the Office of Mental Health, whose certified Article 10 report was admitted into evidence (M.H.L. § 10.08(g) ). Dr. Charder interviewed the respondent in person for approximately two hours and forty-five minutes, and in addition reviewed numerous documents in the Risk Assessment Records Review file. Respondent's criminal background is relevant to her opinions, including a history of eleven arrests, three of which were for sex-related offenses. The respondent was arrested for Promoting Prostitution in the Fourth Degree in 2004; in 2005 he was arrested for Harassment in the First Degree, Sexual Abuse in the Third Degree, and subjecting another person to sex contact without consent; in 2006 he was arrested for instant offense, Rape in the First Degree. Moreover, in 2007 he incurred a Tier 2 ticket in prison for masturbating in front of a female Corrections Officer.
During his time on SIST the respondent has been often failed to comply with the required conditions. In treatment, he has denied the majority of responsibility for his role in past criminal sexual offenses. Dr. Charder made note of the respondent's difficulty with conforming to mainstream pursuits, such as obtaining employment and participating in family life, and his continued hostility toward women. The respondent has made “sporadic attempts to adjust” to his SIST program conditions but “most often has paid lip-service to making the changes necessary, rather than actually following his treatment plan.”
When questioned about his most recent parole violation involving the assault on NR, the respondent offered an account that was wholly inconsistent with police and parole records. He had trouble with memory and keeping track of time, his story often diverging onto tangents. The respondent explained that the complainant had come to him after she had been attacked by four girls in a gang assault. He stated that she had asked him for help but that he refused because of his parole requirements. Furthermore, he alleged that the complainant proceeded to hit the respondent's two-year-old son while he was in the bathroom, and then left at around 10:00 p.m. before the respondent's wife came home. He also denied having any sexual relationship with the complainant, instead stating that she was a friend who had become akin to a family member.
Dr. Charder conducted a risk assessment of the respondent, utilizing the STATIC–99R actuarial tool as well as evaluating dynamic risk factors. The respondent scored a 9 on the STATIC–99R, placing him at high risk for recidivism. Dr. Charder also concluded that the respondent was at high risk based upon his demonstrated noncompliance with and resistance to supervision, which she felt indicated a disdain for supervision and the intention to do what he pleases despite prohibitions, as well as evasiveness about his own life. For instance, the respondent's risk is heightened by his failure to adequately participate in a sex offender treatment program. Other factors included distorted sexual attitudes toward women, problems with self-regulation and impulsivity, tendency to blame others, and negative social influences from individuals involved in antisocial activities. On the other hand, Dr. Charder found some reduced risk in the respondent's time since 2009 by remaining offense-free in the community, his completion of sex offender treatment, and his pro-social supports from his family. Dr. Charder nevertheless concluded that the respondent is not receiving significant benefit from treatment in SIST, and that, as he remains unable to control his behavior, he appears to be a dangerous sex offender requiring civil confinement.Dr. Leonard Bard also gave expert testimony based upon his certified Article 10 report prepared for the purpose of this hearing. Like Dr. Charder, Dr. Bard reviewed the respondent's records including, inter alia, treatment notes, documents in the possession of the Office of Mental Health, and various other documents from the Department of Correctional Services. He concluded from this review as well as an in-person interview that the respondent remains a good candidate for continued participation in SIST, despite his challenges in adhering to the conditions imposed, and that confinement is not necessary.
Dr. Bard also found reason to be concerned with the respondent's progress on SIST. He acknowledged that on his SIST progress reports, the respondent had received unsatisfactory ratings for compliance with supervision and general self-regulation, and that he had demonstrated minimal motivation to meet his goals under SIST. Furthermore, the respondent's assertion that sex offender treatment is progressing well is belied by reports from his therapists, who describe his participation as “minimal” because he maintains that he did not commit a sexual offense. With respect to the most recent violation in April 2013, respondent gave a similar account to that offered to Dr. Charder. He told Dr. Bard that the victim was attacked by someone else and that he had walked her to an ambulance, and that he never had a sexual relationship with her.
In his risk assessment, Dr. Bard also employed the STATIC–99R, on which he scored the respondent an 8, which relates to an estimated recidivism risk rate of 23.7% over a 5–year period. Reviewing the respondent's history of SIST violations, as well as other dynamic risk factors, Dr. Bard concluded that, despite his problematic behavior, the respondent “has not displayed any difficulties in controlling his sexual impulses and has not recidivated sexually while on SIST.” Moreover, the respondent has not “displayed any attitudes that would be considered tolerant of sexual reoffending” and there are “no indications of any attraction to children as sexual objects ...” Dr. Bard thus offered his opinion that the respondent can continue to be managed on SIST without increasing his risk of committing future sexual offenses.
Dr. Bard noted that, according to the treatment records, the respondent has been diagnosed with anti-social personality disorder, which he believes is the primary driver of the respondent's reoffending. Thus, he did not believe that the respondent's denial of responsibility is related to a risk of sexual recidivism. Dr. Bard acknowledged that the respondent has engaged in a sex-offense pattern that involves assaulting women in the context of promoting prostitution, but did not find this pattern to be predictive of sexual reoffending. In sum, the respondent has done “dumb criminal things, but he has not reoffended sexually ...”
Conclusions of Law
A person's regimen of SIST may be revoked if such person violates a condition of SIST (M.H.L § 10.11[d][1] ). If a parole officer has reasonable cause to believe that the respondent has violated a condition of SIST, the parole officer may take the respondent into custody and transport him to either a secure treatment facility or a correctional facility to be evaluated by a psychiatric examiner. After the evaluation is completed, the attorney general may file a petition for confinement pursuant to § 10.11(d)(4). The petition for confinement must demonstrate probable cause to believe that the respondent violated one or more conditions of his SIST and be accompanied by written evaluations by a treatment professional indicating that the respondent is a dangerous sex offender requiring confinement.
The court must conduct an evidentiary hearing on this matter in which the petitioner, represented by the office of the Attorney General, must prove by clear and convincing evidence that the respondent is a dangerous sex offender requiring confinement (M.H.L. § 10.11[d][4] ; see also State v. Steur, 102 AD3d 481 [1st Dept 2013] ). A “dangerous sex offender requiring confinement” is defined as “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” (M.H.L. § 10.03[e] ). Clear and convincing evidence is a standard of proof which requires a high degree of probability that the respondent has such a strong predisposition to commit sex offenses and has such inability to control his behavior that he is likely to be a danger to the public and will commit sex offenses if not supervised (see McCormick on Evidence (5th Ed.), p. 425 § 340). If the court finds that the Attorney General has not met this burden but finds that the respondent continues to be a sex offender requiring strict and intensive supervision, the court shall order the person to be released under the previous order imposing a regimen of SIST, unless it finds that modification of the conditions is warranted (M.H.L § 10.11[d][4] ). Thus, the mere violation of any conditions imposed on him, standing alone, does not warrant revocation of SIST.
It is clear from the testimony and other evidence submitted that the respondent has had trouble complying with the conditions of his SIST order and in making progress in therapeutic treatment. In particular, it is undisputed that the respondent has violated the conditions of “I will not behave in such a 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” and “I will abide by the curfew established by my parole officer and will remain in my approved residence during the hours set forth by my parole officer as follows: 7:00 pm to 7:00 am daily.” Additionally, the respondent has been charged criminally for the assault of a young woman. The respondent has received less than satisfactory reviews on several aspects of his SIST progress reports, but he has made very gradual incremental improvement in the sense that he has not committed any further sex offenses while on SIST and his participation in treatment has increased.
In this instance, the respondent's violations do not rise to such a level that mandates that the court find him to be a dangerous sex offender requiring treatment. It must be remembered that the statute, by its terms, limits any finding that the respondent is a dangerous sex offender requiring confinement to one in which such individual has a “strong predisposition to commit sex offenses ” (M.H.L § 10.03[e] ), and the latter phrase has specific definitions (see, M.H.L § 10.03[p] ), none of which were demonstrated here (see, State v. P.H., 31 Misc.3d 1227[A] ). Without minimizing the seriousness of the respondent's anti-social behavior and noncompliance with his SIST conditions, the court concurs with Dr. Bard's conclusions that the respondent has not demonstrated a strong predisposition to commit sex offenses (emphasis added). The court has reviewed all available reports of the assault and the complainant's treatment and, in the absence of testimony from the complainant, or other person with knowledge of the facts, there is simply no evidence that the most recent assault charge was sexually motivated. Nor does the court find that this incident demonstrates a risk of sexually reoffending. Proof of a predisposition to other conduct, not specifically defined as a “sex offense,” no matter how offensive or inappropriate, or even criminal, is insufficient (Id. ). Such is the extent of respondent's conduct since the finding of the court made on August 3, 2009 that he requires civil management through the regimen of SIST. Article 10 was never intended as a catch-all to seek confinement of persons who may engage in generically bad, but non-sex offense conduct.
The narrow question before the court is whether the petitioner has demonstrated by clear and convincing evidence that the respondent is likely to commit a sex offense if he is not confined to a secure treatment facility. For the reasons set forth above, the court concludes that the petitioner has not met its burden.
The court notes that had the Legislature intended to permit the revocation of SIST, and placement of respondent in a secure treatment facility, on mere evidence of violation of any of the terms and conditions thereof, similar to that provided for in probation cases under Criminal Procedure Law, it would have said so explicitly in § 10.11(c)(4) of the Mental Hygiene Law. Instead, the language of the statute requires an additional finding that respondent is a “dangerous sex offender requiring confinement”, and that phrase is defined, inter alia, as an individual with a strong predisposition to commit certain specified sex offenses. The Legislative intent is to be ascertained from the words and language used (McKinney's, Statutes, § 94 ) and the words used here are clear and free from ambiguity (McKinney's, Statutes, § 76 ). Thus, the sentence, “(a) person's regimen of strict and intensive supervision and treatment may be revoked if such a person violates a condition of strict and intensive supervision”, found in Mental Hygiene Law § 10.11(c)(1), is merely preliminary and introductory to the remaining language of this statute, especially subdivision (4) thereof. The statute must be read as a whole, and all parts must be construed together. (McKinney's, Statutes, § 97 ). The clear Legislative intent and statutory purpose, is to ensure that only dangerous sex offenders requiring confinement should be so confined.
For the foregoing reasons the petition is denied, and respondent is to be released from OMH custody in order to resume his regimen of SIST, without prejudice to petitioner to seek additional or modified SIST conditions, if it be so inclined.
The above constitutes the decision and order of the court.