Opinion
406668/07.
Decided January 16, 2008.
The attorneys in this proceeding are Anthony Miller, Esq. (from the Attorney General's Office) and David Tull, Esq. (from Mental Hygiene Legal Services).
The State of New York moves to establish probable cause to believe that K.A. is a "sex offender requiring civil management" pursuant to Mental Hygiene Law ("MHL") Article 10, § 10.06(k).
K.A. opposes the motion.
Background
As a result of the New York State Legislature's failure to pass one of five separate bills for the involuntary civil confinement of sex offenders, then-Governor George Pataki urged state officials to "push the envelope" as it concerned about-to-be-released state prisoners who had been incarcerated for sexual offenses. State ex rel. Harkavy on behalf of John Does 1 through 12 v. Consilvio, 10 Misc 3d 851, 853 (Sup. Ct. NY County 2005) (" Harkavy I"), revd. 29 AD3d 221 (1st Dept. 2006), revd. 7 NY3d 607 (2006). State correction and mental health authorities, at the Governor's bidding, began evaluating inmates who were convicted of sexual offenses to determine if they should be civilly confined after their sentences expired. Harkavy I, 10 Misc 3d, at 852. Initially, after their sentences were complete, 12 individuals were transferred from the New York State Department of Corrections to Manhattan Psychiatric Center ("Manhattan Psychiatric"), a non-secure Office of Mental Hygiene ("OMH") facility, and later more were sent to Kirby Forensic Psychiatric Center ("Kirby"), a secure facility.
The Deputy Director of the Mental Hygiene Legal Services ("MHLS"), Stephen J. Harkavy, brought a writ of habeas corpus pursuant to CPLR Article 70 on behalf of the 12 former inmates being held at Manhattan Psychiatric. Supreme Court (Silbermann, J.) sustained the writ of habeas corpus, conditionally discharged John Does 1 through 12 from further detention; and directed the Executive Director of Manhattan Psychiatric to allow for the examination of each of the petitioners by two independent court-appointed examining physicians. The court held that unless both examining physicians certified that petitioners were "mentally ill, in need of care and treatment at a psychiatric hospital, and [posed] a substantial threat of physical harm to themselves or others," they were to be immediately released. Harkavy I, 10 Misc 3d, at 858.
The Appellate Division, First Department reversed, vacated the conditional release of John Does 1 through 12 and dismissed the petition. See, State ex rel. Harkavy on behalf of John Does 1 through 12 v. Consilvio, 29 AD3d 221 (1st Dept. 2006) .
The Court of Appeals thereafter reversed, fashioning a different remedy than that imposed by Supreme Court. The Court of Appeals explained: "* * * [W]e understand how in an attempt to protect the community from violent sexual predators, the State proceeded under the Mental Hygiene Law. We do not propose that these petitioners be released, nor do we propose to trump the interests of public safety. Rather we recognize that a need for continued hospitalization may well exist. We therefore order that those petitioners remaining in OMH custody be afforded an immediate retention hearing pursuant to article 9 of the Mental Hygiene Law — now controlling since they are no longer serving a prison sentence ( see Correction Law § 404). As to future candidates for immediate psychiatric hospitalization, prior to the expiration of their term of imprisonment, the State must proceed pursuant to Correction Law § 402, with all its attendant procedural requirements including court supervision, pretransfer notice and an opportunity to be heard within a reasonable period of time prior to the inmate's proposed release date."
State of NY ex rel. Harkavy v. Consilvio, 7 NY3d 607, 614 (2006).
While Harkavy I was still on appeal, MHLS brought a second habeas corpus petition on behalf of John Does 13 through 22, who alleged that they were illegally transferred to Kirby ostensibly to "receive treatment for mental illnesses which may have contributed to their predatory behavior." State of NY ex rel. Harkavy v. Consilvio, 11 Misc 3d 1053 (A), 814 N.Y.S.2d 892, 2006 WL 346534 (Sup.Ct. NY County 2006) (" Harkavy II"), revd. 34 AD3d 67 (1st 2006), revd. 8 NY3d 645 (2007). Respondent Eileen Consilvio, Executive Director of Kirby opposed the application, asserting that petitioners were properly transferred to Kirby pursuant to Article 9 of the Mental Hygiene Law. Id., at * 1.
Once again, Supreme Court (Silbermann, J.) sustained the writ of habeas corpus, this time, however, ordering that petitioners were to receive expedited individual hearings "on the issue of the Petitioners' alleged need for continued psychiatric hospitalization." In addition, the court ordered that if respondent refused to produce petitioners for hearings, they would be discharged from further detention. State of NY ex rel. Harkavy v. Consilvio, 2006 WL 346534, at * 7.
The Appellate Division, First Department once again reversed, only itself to be reversed again by the Court of Appeals. See, State of NY ex. rel. Harkavy v. Consilvio, 34 AD3d 67 (1st Dept. 2006), revd. 8 NY3d 645 (2007). The Court of Appeals explained that after issuance of the lower court decisions, the legislature passed the "Sex Offender Management and Treatment Act," "which creates a new Mental Hygiene Law article 10 [providing] that offenders convicted of enumerated crimes, including sex offenses, may be transferred to psychiatric hospitals after their release from prison if certain procedures are followed. Article 10 establishes a multi-step process that may lead to the civil commitment of some offenders and the outpatient supervision and treatment of others."
State of New York ex rel. Harkavy v. Consilvio, 8 NY3d, at 651.
In remanding the matter to Supreme Court for further proceedings, the Court of
Appeals held:
"Like the Harkavy I patients, the petitioners here were improperly committed under Mental Hygiene Law article 9. As the State concedes, based on our Harkavy I precedent, the order of the Appellate Division must be reversed and the matter remitted to Supreme Court to give petitioners appropriate commitment hearings. In light of the new legislation, we conclude that those hearings will be conducted in accordance with article 10; petitioners are entitled to have a jury determine the issue of mental abnormality' and, if necessary, a court will decide if civil confinement is warranted * * * ."
State of NY ex rel. Harkavy v. Consilvio, 8 NY3d, at 652.
The Court of Appeals, in a footnote, added: "We express no view on the propriety of the standards or procedures adopted in the new legislation. Petitioners are free to raise any objections they deem appropriate upon remittal." State of NY ex rel. Harkavy v. Consilvio, 8 NY3d, at 652 n. 3.
Sex Offender Management and Treatment Act
Mental Hygiene Law Article 10 provides that after a case review team, consisting of at least two mental-health professionals ( see, MHL § 10.05[a]), finds that an individual is "a sex offender requiring civil management," the Attorney General may file a sex offender civil management petition in Supreme Court. MHL § 10.06(a). The petition must "contain a statement or statements alleging facts of an evidentiary character tending to support the allegation that the respondent is a sex offender requiring civil management." Id.
After a petition is filed, the act directs that Supreme Court "shall conduct a hearing without a jury to determine whether there is probable cause to believe that the respondent is a sex offender requiring civil management." MHL § 10.06(g) (emphasis added).
At the conclusion of the hearing, if the court determines that probable cause has not been demonstrated, it must dismiss the petition and respondent will be released. MHL § 10.06(k).
If, however, probable cause has been established:
"(i) the court shall order that the respondent be committed to a secure treatment facility * * * (ii) the court shall set a date for trial * * * and (iii) the respondent shall not be released pending the completion of such trial."
MHL § 10.06(k).
At trial:
"The jury, or the court if a jury trial is waived, shall determine by clear and convincing evidence whether the respondent is a detained sex offender who suffers from a mental abnormality. The burden of proof shall be on the attorney general. A determination, if made by the jury, must be by unanimous verdict. * * *
* * *
"If the jury, or the court if a jury trial is waived, determines that the respondent is a detained sex offender who suffers from a mental abnormality, then the court shall consider whether the respondent is a dangerous sex offender requiring confinement or a sex offender requiring strict and intensive supervision. * * * If the court finds by clear and convincing evidence that the respondent has a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility, then the court shall find the respondent to be a dangerous sex offender requiring confinement."
MHL § 10.07(d), (f) (emphasis added).
MHLS filed a declaratory judgment action in the Southern District of New York "attacking the constitutionality of certain provisions of the Act." See, Mental Hygiene Legal Service v. Spitzer, ____ F. Supp. 3d _____, 2007 WL 4115936 (S.D.N.Y, Nov. 16, 2007).
In a comprehensive decision, the federal court upheld the constitutionality of Article
10 of the Mental Hygiene Law except to the extent that § 10.06(k) "requires detention pending trial on a mere finding of probable cause to believe that the respondent suffers a mental abnormality.'" Mental Hygiene Legal Service v. Spitzer, ____ F. Supp. 3d _____, 2007 WL 4115936, at * 15. The court reasoned:
"In practice, the automatic detention provisions operate less as a precise tool to determine who is dangerous enough to be committed pending trial, and more as a hammer to coerce individuals to enter a plea arrangements with the State, and thereby accept both the designation as a sex offender and intensive ongoing treatment in order to avoid spending what may be more than 60 days in involuntary confinement."
Mental Hygiene Legal Service v. Spitzer, ____ F. Supp. 3d _____, 2007 WL 4115936, at * 14.
The court concluded that plaintiffs demonstrated a likelihood of success on the merits as to the unconstitutionality of MHL § 10.06(k) and that they established irreparable injury. It emphasized that:
"The harm to respondent either in being involuntarily committed without a finding of dangerousness or in being coerced to accept a designation of sex offender without an opportunity to contest the Attorney General's petition is both grave and irreparable.
* * *
"Section 10.06(k) is inherently coercive and plaintiffs' motion for a preliminary injunction will be granted insofar as the section requires detention pending trial absent a specific, individualized finding of probable cause to believe that a person is sufficiently dangerous to require confinement and that lesser conditions of supervision will not suffice to protect the public during the pendency of the proceedings."
Mental Hygiene Legal Service v. Spitzer, ____ F. Supp. 3d _____, 2007 WL 4115936, at * 15 (citations omitted and emphasis added).
State v. K.A.
Against this backdrop, on December 10, 2007, this court held a probable cause hearing related to K.A., who is now being held at Manhattan Psychiatric.
At the commencement of the hearing, the State proffered two certificates of conviction, which were received into evidence without objection. K.A.'s most recent conviction, obtained in July 1982 after a non-jury trial, was for two counts of Sodomy in the First Degree, and seven other counts, including Sexual Abuse in the First Degree and two counts of Endangering the Welfare of a Child. For those crimes, K.A. was ultimately sentenced to 15 to 30 years. See, December 10, 2007, Probable Cause Hearing Transcript ("Tr."), at 16; Petitioner's Exhibit 1 in Evidence (Certificate of Conviction dated November 27, 2007). He served 23 years, plus the time he first spent at Kirby and then at Manhattan Psychiatric. Tr., at 122. The State also introduced the Grand Jury indictment underlying the 1982 convictions into evidence to show that some of the counts consisted of crimes against a child under the age of 11.
The State further established that in July 1972, K.A. pled guilty to four counts of Impairing the Morals of a Minor. Petitioner's Exhibit 3 in Evidence (Certificate of Conviction dated July 28, 1972).
As its only witness, the State called James Hicks, M.D., a forensic psychiatrist, Board Certified in both Psychiatry and in Forensic Psychiatry, who is employed at Kirby and who evaluated K.A. in accordance with MHL Article 10. Dr. Hicks explained that in advance of meeting with K.A., he reviewed all documents relating to the case and, after the interview, prepared a report. Dr. Hicks testified that he spent approximately three hours total with K.A, one hour of which was specifically dedicated to MHL Article 10 analysis.
Dr. Hicks stated that in response to questioning about his convictions, K.A. admitted to having had oral sex with "young" victims — in one case "as young as ten years old." Tr., at 64. K.A. told Dr. Hicks that at first he did not think it was wrong to have these contacts with young children, but now after years of treatment, he knows his conduct was a "no-no." Id.
K.A. relayed to Dr. Hicks that he thought the children's parents were "slightly involved" in that they knew what was going on, and that he wished he hadn't been so responsive to the parents. Tr., 66. K.A. informed Dr. Hicks that he was always considerate of the children and that it was police officers conducting the investigation who were to blame for having "created an embarrassing situation for the children." Tr., at 70.
Dr. Hicks defined Pedophelia as:
"a disorder that is characterized by persistent attraction to children * * * who are prepubital, and that those preoccupations either cause extreme discomfort for the patient or leads the patient to commit, engage in pedophilic behavior. In other words, having sex with minors. And those preoccupations have to be present for at least a six month period to rise to the level of the diagnosis."
Tr., at 55.
Dr. Hicks concluded that pursuant to the Diagnostic and Statistical Manual, Fourth Revision (DSM IV) of the American Psychiatric Association, K.A. suffers from Axis I disorder of Pedophelia. He also concluded that K.A. met "at least two criteria" relevant to Axis II disorder of "rule out Antisocial Personality Disorder." Tr., at 54.
Dr. Hicks explained that in order to be diagnosed with an Axis II disorder, one has to clearly possess three out of seven specific criteria in terms of symptoms and behaviors. Dr. Hicks specified that K.A met "at least two of the criteria, violating social norms and laws and being deceitful." Tr., at 56. He stated:
"* * * There's a third criteria that I think he meets pretty well, which is lack of remorse and empathy for others, and blaming others for his behavior.
"The reason I didn't make a full disorder diagnosis is that [the] lack of remorse and concern for others has been manifested mostly in terms of how he talks about his criminal offenses against children. I can't be certain that he lacks concern for other people in all areas of his life, or it is just a part of his concern for children which could be partly due to his pedophilic disorder. * * * [T]he bottom line is he certainly has antisocial traits."
Tr., at 56.
Dr. Hicks further testified that he confirmed the State's results for the STATIC 99 test, which is "an actuarial risk assessment instrument that is used for sex offenders." Tr., at 111. Dr. Hicks pointed out that the STATIC 99:
"[is] a scale that has ten questions and each item is scored with reference to a manual. * * * You add up a total score which is then divided among different risk categories, low risk, medium risk and high risk .* * * So, for example, a score of 6 on the STATIC 99 falls in the category of high risk * * * offenders who have demonstrated a recidivism rate of * * * 39 percent * * * in other words being rearrested for another sex offense within five years."
Tr., at 111-112.
Dr. Hicks concluded that K. A.'s score of six on the STATIC 99 was an indicator of his high risk and dangerousness to society. Tr., at 110-111. He further opined that K.A. "continues to manifest signs of Pedophelia and antisocial personality traits * * * and that the conditions that led [K.A.] to [commit those crimes] have not changed." Tr., at 110. Dr. Hicks also testified that K.A. "has not benefitted from treatment, has not developed an internal sense of control that his actions are wrong" and that he continues to pose a risk "as he's demonstrated himself to be dangerous in the past." Tr., at 110-111.
On cross examination, Dr. Hicks agreed that K.A. was neither psychotic nor on psychotropic drugs, which he did not need. Tr., at 142. Dr. Hicks acknowledged that if K.A. were to be released from Manhattan Psychiatric he would remain on parole until 2012, and that K.A. is registered under the Sex Offender Registration Act ("SORA"). He explained that the restrictions while on parole and the demands imposed on registered sex offenders pursuant to SORA were quite strict, including living in approved residences, adhering to reporting requirements and enlisting in sex-offender treatment programs.
Dr. Hicks also stated that he knew K.A. had participated in the sex-offense treatment program at Kirby, and later at Manhattan Psychiatric, but that when K.A. was ready to progress to Stage 2 of the program, under the advice of counsel, he refused to sign the required contract. Recently, however, K.A. signed the contract and is now partaking in Stage 2.
Analysis
Pursuant to MHL § 10.06(k), this Court must now ascertain whether there is "probable cause" to believe that K.A. is "a sex offender requiring civil management" and whether he should be held for trial. The court must further make findings with respect to whether K.A. "is sufficiently dangerous to require confinement and [whether] lesser conditions of supervision will not suffice to protect the public during the pendency of the proceedings." Mental Hygiene Legal Service v. Spitzer, ____ F. Supp. 3d _____, 2007 WL 4115936, at * 15.
Standard of Proof
MHLS urges adoption of a high standard of proof. It argues that in the context of Article 10 of the MHL, a showing of "probable cause" should require establishing that it is "more likely than not" that an offender requires civil management. MHLS rejects the definition of "probable cause" that has been equated with "reasonable cause," emphasizing that the lesser standard of inquiry has applied in contexts when police officers must make quick "snap" decisions on whether or not to arrest, or when judges, without the benefit of anything more than the testimony of an investigating officer, must sign arrest warrants. Tr., at 5-6. Where, as here, there is significant information and data for the court to consider (including the testimony of mental-health professionals based on observation and test results), MHLS asserts that a "more probable than not" standard should apply.
MHLS cites several cases in which the "more probable than not" standard was adopted in conjunction with "probable cause" analysis. In People v. Mercado, 68 NY2d 874 (1986), cert. denied 479 U.S. 1095 (1987), for example, the Court of Appeals concluded that people have an expectation of privacy in a bathroom stall; consequently, it had to be "more probable than not" that criminal activity was taking place before there could be any intrusion into the stall. See also, People v. Carrasquillo, 54 NY2d 248, 254 (1981) ("in passing on whether there was probable cause for an arrest, we consistently have made plain that the basis for such a belief must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is the perpetrator"); People v. Radoncic, 239 AD2d 176, 179 (1st Dept. 1997), lv. denied 90 NY2d 897 (1997).
In contrast, the State urges use of less stringency, relying on State v. Pedraza, 18 Misc 3d 261, 2007 WL 3353563 (Sup.Ct. Suffolk County 2007). In Pedraza, the court adopted the standard applicable at a preliminary hearing, namely, whether there exists "reasonable cause to believe," in the context of a MHL Article 10 proceeding, explaining that all the court is inquiring into at this early stage is "whether there exists sufficient evidence to proceed to trial." Id., at *3 (rejecting the applicability of a "clear and convincing evidence" standard and refusing to apply a "more likely than not" theory"); see also, State v. Junco, 16 Misc 3d 327, at n. 1 (Sup. Ct. Washington County 2007).
The "reasonable cause" standard must be applied in assessing probable cause here. It is clear from the statutory scheme that when the legislature intended for a heightened standard of proof, it explicitly prescribed its applicability. Compare, MHL § 10.06 (using "probable cause; "with MHL § 10.07(f) (directing that certain findings be made "by clear and convincing evidence"). The purpose of an Article 10 probable-cause hearing, moreover, is simply to ensure that there is a basis for holding respondent for trial, at which time a heightened standard of inquiry will apply. It would not make sense at this preliminary stage to impose a high standard of proof similar to the one that will ultimately be used by the finder of fact after presentation of all of the evidence.
Because the State has established that there is reasonable cause to believe (1) that K.A. suffers from a mental abnormality, and (2) that he "is sufficiently dangerous to require confinement" and "lesser conditions of supervision will not suffice to protect the public during the pendency of the proceedings," probable cause has been established and K.A. will be held for trial.
Mental Abnormality
There is reasonable cause to believe that K.A. suffers from a mental abnormality. The State presented substantially unrefuted evidence — Dr. Hicks' testimony — that K.A., a sex offender, is a pedophile. Dr. Hicks further concluded that K.A. manifests antisocial personality traits: he violates social norms and is deceitful. Based on the evidence, there is reasonable cause to believe that K.A. suffers from a congenital or acquired disorder that affects his emotional, cognitive or volitional capacity.
Dangerousness and Confinement
Additionally, the State has established that there is reasonable cause to believe that K.A. "is sufficiently dangerous to require confinement" and that "lesser conditions of supervision will not suffice to protect the public during the pendency of the proceedings." Dr. Hicks confirmed the State's scoring of the STATIC 99 and stated that K.A.'s score of six fell into the category of "high risk." He also opined that K.A. "Would pose a significant risk of danger to others if he were not in a hospital setting." Tr., at 110. Dr. Hicks testified that K.A. has not benefitted from treatment and that he poses a risk of repeating the dangerous actions of his past. Based on this evidence, in the interests of protection of the public, K.A. must be confined pending a trial. Releasing K.A. now would undermine the whole purpose underlying MHL Article 10.
Accordingly, it is ORDERED that there is probable cause to believe that K.A. is a sex offender requiring civil management and that he shall not be released pending his trial.
This constitutes the Decision and Order of the Court.