Opinion
SCID No. 30261-2014
11-09-2022
In the Matter of the Application of The State of New York, Petitioner, v. Jerome A., Respondent, For Commitment Under Article 10 of the Mental Hygiene Law.
New York State Attorney General Letitia James (Anthony Miller and Breda Huvane, of counsel) for the State. Mental Hygiene Legal Services First Judicial Department (Naomi Weinstein and Jessica Botticelli, of counsel) for the Respondent.
Unpublished Opinion
New York State Attorney General Letitia James (Anthony Miller and Breda Huvane, of counsel) for the State.
Mental Hygiene Legal Services First Judicial Department (Naomi Weinstein and Jessica Botticelli, of counsel) for the Respondent.
Daniel Conviser, J.
This Decision and Order rules on the petition filed by the State seeking a determination that the Respondent, who was formerly released to Strict and Intensive Supervision and Treatment in the Community ("SIST") under Article 10 of the Mental Hygiene Law ("Article 10" or the Sex Offender Management and Treatment Act "SOMTA") is a Dangerous Sex Offender Requiring Confinement ("DSORC"). For the reasons outlined here, the Court holds that the State has not demonstrated that the Respondent is a DSORC by clear and convincing evidence. The Court therefore orders the State to prepare proposed SIST conditions for the Respondent, following which the Court will schedule a proceeding for the Respondent to be again released to SIST.
The Court's ruling follows an evidentiary hearing at which Dr Jonathan Miljus, a psychologist employed by the New York State Office of Mental Health ("OMH") testified for the State and Dr. Leonard Bard, a psychologist, testified for the Respondent.
History of Prior Proceedings
This Court has conducted proceedings concerning Mr. A. for 7 years. It has written several decisions about him and presided over multiple hearings and a bench trial. The Court here first provides a summary of these past 7 years of proceedings, derived from this Court's bench trial decision finding Mr. A. had a Mental Abnormality in 2020, State v. Jerome A., 67 Misc.3d 1220 (A) (Sup Ct, NY County 2020).
On June 1, 2015, following the filing of the instant petition, this Court conducted a hearing pursuant to MHL § 10.06 (g) to determine if there was probable cause to believe Mr. A. was a sex offender requiring civil management. In State v. Jerome A., 48 Misc.3d 1229 (A) (Sup Ct, NY County 2015), 2015 NY SlipOp 51303 (U), this Court, in an extended opinion, dismissed the petition. This Court's determination was based both on the fact that the diagnosis by the State's sole expert witness, Dr. Charder, that Mr. A. had Antisocial Personality Disorder ("ASPD") and psychopathy was the same diagnosis rejected as not meeting Article 10 requisites by the Court of Appeals in State v. Donald DD. and Kenneth T. 24 N.Y.3d 174 (2014) and because this Court did not find Dr. Charder's testimony otherwise credible or sufficient to establish the requisites for a Mental Abnormality.
This Court faulted Dr. Charder (a psychologist) for relying on speculative "brain scan" evidence (not involving Mr. A.) to support her contention that he suffered from a Mental Abnormality. This Court also outlined how Dr. Charder had testified that Mr. A.'s psychopathy provided him with greater volitional control than offenders with ASPD and negated Article 10's "serious difficulty" requirement.
The decision noted that "Dr. Charder testified that 'there was a difference in brain scans between 'successful' and 'unsuccessful' psychopaths and 'therefore, their brains looked a little bit different than the ones who were successful or the ones who got caught, if that makes sense. The unsuccessful psychopaths have less frontal lobe matter and so on". But Dr. Charder did not cite any study to support that conclusion nor is it clear to this Court how any such analysis could even be conducted.... Indeed, Dr. Charder herself commented at a different point in her testimony regarding the same issue: 'Now, those are just theories. There are lots of theories'". 2015 NY SlipOp at 12. She also testified that the Respondent's psychopathy provided him with greater volitional control than if he had ASPD alone. See, e.g., Id., at 14: (when compared to ASPD, psychopathy "involves a more calculating callous choice"; when compared to an ASPD offender, a psychopath's "behavior is more controlled"; generally describing the Respondent's behavior as "planful", "calculating" and non-impulsive. Psychopaths, she testified, are "cold blooded" while ASPD offenders are "hot blooded"). (transcript citations omitted).
In State v. Jerome A., 137 A.D.3d 557 (1st Dept 2016), however, the First Department reversed this Court's dismissal in a brief decision. The Court held that "issues concerning the viability and reliability of the respondent's diagnosis are properly reserved for resolution by the jury unless the respondent's evidence is deficient" and that "the expert's testimony at the hearing was not so deficient as to warrant dismissal of the petition at this early juncture" (citations omitted). The Court also held that because the State proffered the diagnosis of ASPD plus psychopathy, rather than ASPD alone, the evidence was legally sufficient.
The case was then returned to this Court where the Court, on the Respondent's motion, conducted an extended Frye hearing on whether one of the State's proffered diagnoses, Unspecified Paraphilic Disorder ("USPD"), was generally accepted in the relevant scientific community. In State v. Jerome A., Nicholas T. & Gary K, 58 Misc.3d 1202 (A), 2017 NY SlipOp 51762 (U) (Sup Ct, NY County 2017), this Court held that the USPD diagnosis was generally accepted. Although this Court explained its decision in an extended opinion, it summarized its reasoning as follows:
[T]he DSM [Diagnostic and Statistical Manual of Mental Disorders] has been described by experts as the 'Bible of mental disorders', 'like the institutional embodiment for the consensus of main treatment and psychiatric opinion in the United States', 'a consensus of experts in psychiatry about those particular disorders that should be treated' and 'the consolidated opinion of the psychiatric community in terms of what constitutes psychiatric diagnosis. According to the DSM-5 [the current 5th edition]... the USPD diagnosis is 'indispensable'. 2017 NY Slip Op at 15 (citations omitted).
In State v. Hilton C., 158 A.D.3d 707 (2nd Dept 2018), however, the Second Department held that the USPD diagnosis was not generally accepted. This Court then reversed its determination that USPD was generally accepted, since Hilton C. was the only appellate ruling which had considered the issue and this Court was thus bound to follow it.
Further complications then ensued, however, from the Second Department's decision in State v. Anthony B., 2018 NY SlipOp 68466 (U) (2nd Dept 2018). There, the trial court, in reliance on the Second Department's decision in State v. Richard S., 158 A.D.3d 710 (2nd Dept 2018) holding that USPD Non-Consent (a different diagnosis than USPD) was not a generally accepted diagnosis followed the Second Department's ruling. The Second Department reversed the trial court's determination, however, holding that the trial court was required to conduct a new Frye hearing, notwithstanding the fact that a different Second Department panel had already ruled on the identical Frye issue. The Anthony B. Court held that the trial court had to conduct "a Frye hearing on the question of whether, under the particular circumstances of this case, the diagnosis of 'Other Specified Paraphilic Disorder (Non-Consent)' has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible;" (emphasis added).
This Court was then required to consider a motion by the State to reargue this Court's prior ruling following the Second Department's decision on the USPD Frye issue based on the argument that the Second Department in Anthony B. had created a new Frye analytic construct: "the principle that an appellate ruling from an appellate court based on a particular Frye record does not preclude the State from seeking a new Frye ruling before a trial court based on a different record." State v. Nicholas T. & Gary K., 60 Misc.3d 522, 525 (Sup Ct, NY County 2018). This Court denied the State's motion, notwithstanding the Second Department's ruling, since "[t]he general acceptance of a particular diagnosis or scientific test obviously does not vary from case to case (hence the term 'general acceptance')". 60 Misc.3d at 527.
Jerome A. then proceeded to a bench trial before a different judge of this Court, Judge Pickholz, who determined Mr. A did not have a Mental Abnormality. In State v. Jerome A., 172 A.D.3d 446 (1st Dept 2019), however, the First Department reversed Judge Pickholz's verdict. The Court found, consistent with this court's ruling in State v. Jerome A., Nicholas T., & Gary K., that USPD was a generally accepted diagnosis. Since this Court had precluded that diagnosis prior to the trial, the First Department found, the verdict finding the respondent did not suffer from a Mental Abnormality had to be reversed.
The First Department also reversed this Court's bench trial verdict rendered in August of 2018 finding the Respondent did not suffer from a Mental Abnormality in State v. Gary K., 179 A.D.3d 623 (1st Dept 2020) for the identical reason. Gary K. had been living in the community with no report of sexual offending since his release following this Court's verdict and the State ultimately agreed to dismiss the petition.
This Court then conducted a second bench trial, where it reached a verdict contrary to Judge Pickholz (and contrary to this Court's initial dismissal). Ironically, however, this Court reached that verdict although it did not credit the State's USPD diagnosis - the diagnosis whose absence was the sole reason for the First Department's latest reversal. This Court then conducted a dispositional hearing and found that the Respondent was not a Dangerous Sex Offender Requiring Confinement. Mr. A. was then released to the community on SIST and, 4 ½ months later, violated his SIST conditions in numerous respects, leading to the instant petition.
Summary of Mr. A.'s Criminal History
The following summary of Mr. A.'s criminal history as described by State witness Dr. Kostas Katsavdakis is derived from this Court's Decision and Order in 2020 finding Mr. A. had a Mental Abnormality. Mr. A. began using drugs as a juvenile. In 1972, at the age of 15, he admitted robbing a prostitute. Later that year, he admitted to participating in what he described as a "hooky party" where he was arrested for rape and the case was transferred to Family Court and dismissed. He told Dr. Schlosser (the Respondent's expert) that he and other juveniles had "run a train" over a female. [Dr. Schlosser later said this meant they took turns having sex with her.]
In 1975 he was arrested for attempted murder and convicted of robbery for an incident in which he and a co-defendant got into an argument with a bouncer at a club and committed a robbery. Mr. A. had a BB gun and his partner had a real gun. After being released from prison for this offense, he was convicted in 1979 after 10 months in the community for attempted criminal possession of a weapon. Later that year, he was arrested for breaking a person's arm with a rolling pin but the charges were dismissed.
In 1984, Mr. A. was convicted in Virginia at age 26 of a sexual offense for an assault on a 14 year old female cousin he knew. The victim encountered him outside a convenience store which they both then entered. He forced her to leave the store by placing what she said felt like a gun at her side and threatening to shoot her. He took her to a vehicle and there were other people nearby who she asked for help, but Mr. A. convinced them she was "tripping". He drove her away, the car broke down, she left the car and tried to escape. She again tried to get the attention of passers-by. Mr. A. and the victim came to the area of a school, he asked to "finger her", she said she was a virgin and he said he would force her to have sex, "fuck her to death" and "make her enjoy it". Mr. A. and the victim then arrived at a school area where the victim again tried to summon help from persons nearby. Mr. A. slapped, smothered and punched her three or four times and pulled her pants half down to have sex with her. He slapped her once when she tried to run away, once when she spilled wine on the floor and a third time when she tried to summon help. He punched her while she was biting and punching him. At one point he slammed her head into the side of a wall. The victim reported being in a blurry daze. He tried to get her to drink wine and kissed and touched her. She was then able to escape with the assistance of other people. The victim never reported seeing Mr. A. with an erection.
He was convicted of abduction and sexual battery in Virginia for this crime and sentenced to 10-20 years incarceration with 10 years deferred. Mr. A. was released from prison in 1992 and then convicted five or six months later in Virginia for unlawful maiming for an incident in which he stabbed a male victim 7 times. Mr. A. reported that the victim had come at him with a cane and Mr. A. was defending himself. The victim suffered a punctured lung, liver lacerations and stab wounds to the neck.
Mr. A. was convicted of Sexual Abuse in the First Degree for a crime which occurred in Queens in 1997 against a 29 year old victim. He met the victim, they smoked crack together and went to Mr. A.'s cousin's apartment. When the victim tried to leave, he dragged her back to the apartment, forcibly raped and sodomized her and threatened to kill her. He grabbed her by the neck at one point and threw her to the ground. He also threatened to punch her in the face if she kept talking. This offense was committed while there was a warrant for Mr. A. from Virginia.
At one point during the assault Mr. A. told the victim that she was going to take care of him. He later said he traded the victim sex for drugs and believed she may have been a prostitute, although he gave inconsistent accounts of what happened at different times to different people. In 2006, at about the age of 50, Mr. A. pled guilty to failing to register as a sex offender. In 1999 his New York parole was violated approximately 2-3 days after his release because he did not report to an assigned shelter.
The instant offense which resulted in this Article 10 proceeding occurred in July of 2006 when Mr. A. was 49 years old and concerned a 34 year-old homeless woman who had just been released from the hospital after being assaulted by a different perpetrator in an unrelated assault. She had a black eye when they met. Mr. A. met the victim in the evening and they spent time together eating food from a truck and drinking beer. Mr. A. told the victim he wanted to have sex with her and she refused. He first kissed her, then tried to put his hand down her pants, she resisted and he told her to shut up or he would kill her. After he put his hands down her pants, the victim reported, she told him that if he was going to do that, he better kill her first. It was at this point that he punched her in the face and knocked her out.
He also grabbed her by the neck at one point and caused facial injuries. He forced her to have intercourse and threatened to kill her if she resisted. When she awoke after losing consciousness, Mr. A. was on top of her and pulling his penis out of her vagina. He told the victim "you are mine". The assault took place on the steps of St. John the Divine Cathedral in New York City at about 2:00 a.m. Dr. Katsavdakis said Mr. A. met the Respondent about 7:00 p.m. the preceding evening, although he appeared unsure about the timeline. Dr. Katsavdakis believed Mr. A. had struck the victim after she regained consciousness either during or after the rape and may have hit her with a hard object. The victim was treated at a hospital and released. She suffered from a swollen lip, two loose teeth, bruising on her neck and around her right eye and a small tear in her vaginal area. During his pre-sentence interview, Mr. A. denied the sex was forcible. In 2014, he said he initially had consensual sex with the victim then something went wrong and he was forced to knock her out and everything was blown out of proportion. Dr. Katsavdakis testified that Mr. A. at one point strangled the victim.
Testimony and Report of Dr. Jonathan Miljus
Dr. Jonathan Miljus, a psychologist employed by OMH testified for the State at the instant hearing and opined that Mr. A. was a Dangerous Sex Offender Requiring Confinement. He reviewed numerous records concerning Mr. A. and interviewed him by tele-conference on November 9, 2021. He also spoke to Mr. A.'s parole officer, Officer Valerio and with treatment providers Ms. Costa, Ms. Rzewinski and Ms. Jaramillo regarding substance abuse all in November of 2021. In his report Dr. Miljus diagnosed Mr. A. with ASPD and Stimulant Use Disorder (Cocaine) Severe.
Mr. A. was released to SIST on June 9, 2021 and absconded from supervision after 4 ½ months, on October 25, 2021. He was in the community after absconding for 13 days and was then arrested on November 7th, 2021 for possessing two crack cocaine rocks and charged with the Class A misdemeanor of Criminal Possession of a Controlled Substance in the 7th Degree. Mr. A. was determined to have absconded after his parole officer visited him at his shelter where he was not present and then attempted to contact Mr. A. on his cell phone which he did not answer. Mr. A.'s GPS monitor ran out of battery life the following day on October 26 and a SIST violation warrant was issued.
Mr. A. was alleged to have violated SIST conditions by failing to remain at his residence, not abiding by his curfew, failing to report to parole as directed, failing to attend treatment and being in possession of crack cocaine. Dr. Miljus noted that Mr. A. was reported to have used crack during one of his prior sexual offenses and alcohol during another. Mr. A. had a history of parole violations and was being offered treatment resources while on SIST which were not previously available to him.
Mr. A. told Dr. Miljus that he absconded and used crack after learning that his son had died and experiencing negative emotions. He said he spent most of the 13 days he absconded by himself and purchased and used crack multiple times. He said he obtained the money to buy crack from a government stimulus check, wanted to call his parole officer but his battery died and was planning to turn himself in but wasn't ready yet. He also spent some days in a hotel so he could sleep and shower. Mr. A. has a pattern of being "very insistent on doing things his own way" and believed willpower was enough to stop him from using drugs. Transcript, p. 33. Mr. A. was capable of returning to SIST supervision during the 13 days he absconded but did not. He said that Mr. A. had mentioned in treatment that other family members had died but said he didn't want to discuss that in detail and did not show a significant affect when discussing these deaths.
Dr. Miljus said it is clear that willpower alone is insufficient to combat substance abuse. Mr. A.'s absconding and crack use were impulsive and dangerous. Mr. A. denied any desire to use drugs again or abscond and denied sexual cravings or preoccupation. Mr. A.'s sex offender and substance abuse treatment counselors reported that he was doing fairly well in treatment with respect to attendance and was starting to open up more. About a month prior to absconding he had begun to spontaneously participate in treatment. He seemed committed to not going back to prison or using drugs and even reminded treaters to subject him to drug screens while he was on SIST. He said he didn't want to engage in intimate relationships until he was more settled although he found some women in the community attractive. On the other hand, his treaters reported that he remained on the surface during treatment and did not discuss his urges or cravings.
Mr. A. continued to minimize his sexual offenses during treatment and denied that patronizing prostitutes, which he had done in the past, continued to be an issue for him. He was reported by his treatment providers to lack specific skills he could use to prevent substance abuse or sexual offending and said he was also not at risk to abuse substances. The treatment providers opined that Mr. A.'s goal of reuniting with family members was not realistic, since Mr. A.'s plan was to return to the community and simply go door-to-door to find them.
According to one of his treatment providers, Ms. Rzewinski, Mr. A. didn't discuss issues in-depth and did not acknowledge his triggers or risk factors. Dr. Miljus said these tendencies were consistent with Mr. A.'s SIST violation. Mr. A. was seen as being in the beginning stages of treatment by his providers. In July of 2021 Mr. A. said drug use was the main factor which led him to sexually offend. In his interview with Dr. Miljus, however, Mr. A. said he no longer had risk factors for sexual re-offense. Dr. Miljus opined that Mr. A. did not have adequate skills to be in the community safely. Substance abuse generally disinhibits people. It generally increases sexual re-offense risk. Mr. A., in addition, has willfully ignored and minimized the impact of substance abuse on his sexual re-offense risk. Mr. A. rendered SIST ineffective because it was not able to monitor Mr. A.'s behavior after he absconded. Dr. Miljus opined that Mr. A.'s crack use and absconding from SIST returned him to his offending cycle.
Dr. Miljus acknowledged that there was no evidence Mr. A. had sexually offended, attempted to sexually offend or engaged in any sexual behaviors while in the community. He was not subject to an incident report or a warrant on SIST prior to his absconding. Dr. Miljus opined, however, that Mr. A. continued to have a high level of psychopathic traits and was willfully ignoring his risk factors.
On June 14, 2022, Mr. A. while confined at the State Treatment and Rehabilitation Center, Oakview (an OMH secure treatment facility located in Oneida county "STARC Oakview" or "STARC"), obtained medications, was walking away and was asked to return by a treatment aide. He responded: "every time you are up here, you are trying to regulate me. No, bitch, fuck you", then when sitting down later said: "you will never fucking regulate me, you fucking racist". Id. p. 49. Dr. Miljus confirmed that this was the only incident he was aware of regarding Mr. A. during his most recent confinement at STARC which began on December 2, 2021. Dr. Miljus reviewed STARC records through August of 2022. While on SIST Mr. A. was compliant to some extent with rules but was not willing to go deeper and asserted that his willpower would allow him to act appropriately. Mr. A. has never completed a sex offender treatment program.
STARC Oakview was formerly known as the Central New York Psychiatric Center ("CNYPC") and references to that former designation in the transcript have been changed to STARC.
Mr. A. described his substance abuse treatment as positive. He said he needed substance abuse treatment but did not have a plan to avoid using illicit substances. He described his use of crack while on SIST as "just something that happened". Id., p. 55. He said he relied on music and other interventions for support and just doing it on his own. It is easier to obtain drugs outside prison than in a controlled environment like prison.
Since Mr. A. has been confined following his absconding he has refused to participate in sex offender treatment, indicating he was afraid statements he might make in treatment would be deemed inculpatory. Mr. A. completed an alcohol and substance abuse treatment program, "ASAT" when he was previously confined in prison. Dr. Miljus opined that Mr. A. went into the community on SIST "unarmed" because he had not completed sex offender treatment and did not have the tools to address his re-offense risk. Id., p. 59.
Regarding sex offense risk, Mr. A. needs to make progress on all aspects of his risk factors, including a more thorough understanding of his offense cycle. Since Mr. A.'s absconding was only interrupted by an arrest, it is impossible to know how long he would have absconded if he were not arrested. Mr. A. had four previous parole violations from 1982 to 2000. His lack of compliance with supervision is a dynamic risk factor for sexual re-offense.
Mr. A.'s drug use and absconding are tied to his ASPD and place him at risk for sexual offending. He also rendered SIST supervision completely ineffective. Mr. A. has been in the community in the past for more than two weeks before again sexually offending. Spending time in the community without offending for two years or more decreases the actuarial risk to re-offend but Mr. A.'s brief time in the community without evidence of re-offending was not significant with respect to risk reduction.
Mr. A. was "out of control" during his absconding and this was evidence of his inability to control his behavior. He was not managing his risk and this made him dangerous. Dr. Miljus agreed that Mr. A. was on a "slippery slope" towards sexual offending. The actuarial risk to re-offend begins to reduce at age 40 and Mr. A. was 49 at the time of his last sexual offense. There is a more substantial reduction in actuarial risk to re-offend at age 60 and Mr. A. was 65 when he absconded [and 66 now]. Dr. Miljus opined that Mr. A.'s risk was not reducing to the same degree as the offenders reviewed in this research. Mr. A,'s level of violence increased during the 2006 instant offense and this increases his level of dangerousness.
Mr. A. has reported that he is unable to achieve an erection but Dr. Miljus said this was relatively irrelevant to him since an erection is not necessary to sexually offend. A person can sexually offend using objects, fingers, the mouth or a non-erect penis inserted into a victim's mouth.
Dr. Miljus scored Mr. A. with a "5" on the Static-99R actuarial risk assessment instrument, indicating an above-average risk of re-offense. Among his scoring decisions, he added one point for not having lived with a lover for 2 or more years, calling the evidence of this fact "highly inconsistent". Id., p. 75. Dr. Miljus said that Mr. A.'s score reflected his risk. He also reviewed the "Acute 2007" a month-by-month assessment of risk used on SIST. Mr. A. scored "in the low range" and was at "low risk" on that measure during his time on SIST. His scores for sexual violence and general recidivism indicated a "low risk". Mr. A.'s absconding and crack use where impulsive, however, which make Mr. A. more dangerous.
Regarding dynamic risk factors, Dr. Miljus said Mr. A. had an interest in sexualized violence since he had agreed at the time of his 1984 offense involving his 14-year-old cousin that if the victim had volunteered to have sex with him, that would have taken the excitement out of it. Dr. Miljus also opined with respect to the instant 2006 offense that Mr. A. assaulted his victim even after she regained consciousness and that Mr. A. had no understanding of how he was able to maintain an erection despite the victim's protests and the violence he was committing. He opined that Mr. A. had a high level of psychopathy. He said Mr. A. had sexual deviance because he was aroused while committing violence against his victims. Sexual deviance with high levels of psychopathy has been found to be highly related to sexual recidivism.
Mr. A. has exhibited a lack of intimacy or emotion in his intimate relationships, has had multiple sexual partners and broke the arm or hand of one of his partners in the past. Such factors are statistically related to increased recidivism risk. Mr. A.'s SIST violation was impulsive and reflected problems with self-regulation. SIST is less effective for impulsive offenders. Mr. A. has poor cognitive problem solving. His lack of awareness and insight places him at a higher risk for sexual recidivism. Dr. Miljus said that the dynamic risk factors of sexual preoccupation, multiple paraphilias and offense supportive attitudes do not apply to Mr. A.
During his interview with Mr. A., Dr. Miljus said that Mr. A. became agitated in claiming that his willpower alone was enough to prevent recidivism and that avoiding people would prevent offending. Dr. Miljus said this would not be effective in preventing a re-offense. Mr. A. is also aggrieved by the Article 10 process and his offending has evidenced his need for power and control. Under the Static 99R if a person commits a new non-sexual offense after release to the community that increases the actuarial risk to re-offend. Mr. A. has said that he has no risk factors for sexual re-offense and that he should simply be taken at his word. "SIST is intended for offenders who possess the necessary resources to cope with their predisposition to commit sexual offenses while in a less restrictive environment. It's also intended for individuals who demonstrated the restraint to manage factors that lead to their inability to control their behavior". Id., pp. 91-92.
Mr. A. told Dr. Miljus that he did not masturbate because this was painful, given his enlarged prostate. While on SIST, Mr. A. attended 40 group therapy sessions and 27 individual treatment sessions and did not miss an individual treatment session. He was regularly drug-tested and those tests were negative. Mr. A. said that he was surrounded by drug and alcohol use in the shelter where he lived. Mr. A. reported to Dr. Miljus that he had resolved an issue where he believed someone had stolen from him at the shelter without a conflict and that he preferred not to talk to too many people. Immediately prior to absconding, Mr. A. had received a stimulus check for $1800 which is the most money he had since being released.
Mr. A. told Dr. Miljus that he regretted absconding and using cocaine. Mr. A.'s parole officer located Mr. A. through his GPS device the evening parole was unable to contact him and also located him next day until the GPS battery died at 1:00 p.m. Parole authorities, however, did not seek to apprehend Mr. A. Mr. A.'s regular parole officer was on vacation at the time. Later in the evening on the day after Mr. A. ceased contact with parole, a parole warrant was issued. Mr. A. was arrested without incident and was still wearing his GPS monitor at the time of his arrest. There was no evidence he attempted to tamper with the device. Mr. A. did not express hostile attitudes towards his SIST treaters or his parole officer during his interview with Dr. Miljus.
Testimony of Dr. Leonard Bard
Dr. Leonard Bard, a psychologist, testified on behalf of the Respondent and opined that Mr. A. was not a DSORC. He interviewed Mr. A. on April 11, 2022 and reviewed records. Dr. Bard said he reviewed Mr. A.'s conduct while on SIST and while confined at STARC subsequent to his SIST violation to see if anything dispositive had changed since this Court adjudicated him as not being a DSORC. He said that nothing which had occurred since this Court's prior adjudication "has any bearing on the issue of an inability to control sexual urges". Id., p. 139.
Dr. Bard diagnosed Mr. A. with Stimulant Use Disorder but said that while Mr. A. could be diagnosed with ASPD in the past there was insufficient evidence he had ASPD now. Dr. Bard said that Mr. A. found out his son had died and then "smoked himself into oblivion" but did not take any harmful actions towards anyone else. Id., p. 141. Mr. A.'s report that his absconding and crack use were precipitated by learning of his son's death was not corroborated by other information. Mr. A. acknowledged to Dr. Bard that cocaine has been a huge problem for him, that he made a mistake by absconding and using crack and that he needed more effective substance abuse treatment in the future.
Dr. Bard said Mr. A. was not thinking clearly during his absconding and that relapse, which he described as a "lapse", was inevitable for virtually everyone with a substance abuse addiction. Id., p. 144. Dr. Bard considered Mr. A.'s most recent behavior as more important than any actuarial risk assessment instrument.
Dr. Bard scored Mr. A. with a "4" on the Static 99R. Persons with that score have a 9.2% chance of being arrested for a sex offense over a period of five years. The difference between Dr. Bard's score of "4" and Dr. Miljus' score of "5" is that Dr. Bard did not assign one point for having never lived with a lover for 2 years. He testified that under the coding rules if you are not sure of a fact, you don't score it and the information on whether Mr. A. had lived with a lover was unclear. The 5 year recidivism percentage for an offender with a score of "5" would be 12% rather than 9.2%.
Dr. Bard commented on a study cited by Dr. Miljus which said that, although time spent in the community without a sexual re-offense reduced an offender's risk as that period of time increased, the recidivism rates based on time in the community were reduced by 3.5 years, if an offender was charged with or convicted of a non-sexual offense, as Mr. A. had been. Dr. Bard said this study concerned a 25 year arc of time and had no relevance to an offender like Mr. A. who had been in the community for 4 ½ months. In any event, this was actuarial information which didn't necessarily apply to Mr. A. or distinguish between violent non-sexual crimes and crimes like crack use for which Mr. A. was arrested.
Since the Article 10 petition was filed in 2014, Mr. A. has not had generally had problems regulating his behavior. He has not received disciplinary infractions for violence or threats and apart from the absconding incident and the one occasion he was verbally abusive at STARC, he has not had disciplinary problems. This is significant because problems regulating behavior are associated with increased risk.
Dr. Bard found it significant that there was no evidence that Mr. A., while using crack in the community during the period he absconded, engaged in sexual behavior of any kind or harmful behavior towards any other person. He also found it significant that Mr. A. absconded in connection with a unique incident - the death of his son, which was not likely to recur and opined that Mr. A. might handle any such issue in a better way the next time.
Mr. A. has not completed sex offender treatment and completing such treatment would be positive for him. Mr. A. was doing as well as could be expected in sex offender treatment while on SIST. Until this summer, there was no substance abuse treatment at STARC following the onset of the pandemic. Mr. A. said he was interested in substance abuse treatment but not sex offender treatment, in part, since he feared statements he made in sex offender treatment could be used against him.
Mr. A. does not have a formal "relapse prevention plan" but there is no research that having such a plan reduces recidivism risk. Mr. A. does not justify his offending, which would be a dynamic risk factor, but minimizes it and was making progress in treatment while on SIST. Mr. A. reported that he had engaged in one long term romantic relationship but this was unverified. Dynamic risk factors are relevant in assessing risk but since Mr. A. was actually in the community his behavior in the community is "more [important] than anything else" in assessing his risk. Id., p. 160.
Mr. A. has some insight into his substance abuse issues. He faced one of the worst things he could have confronted [the death of his son] and responded poorly. Mr. A. acknowledged the need for substance abuse treatment were he again placed on SIST and Dr. Bard disagreed that Mr. A. believed willpower alone would address his issues. Mr. A. needs more intensive drug treatment and drug testing. He also recommended that Mr. A. wear a "SCRAM" alcohol detection monitor and any drug equivalent detection device. Dr. Bard opined that "there's nothing that, to me, indicates that he is unable to manage his sexual impulses". Id., p. 166.
Mr. A. told Dr. Bard that he does not have erections, suffers from prostate problems and is not interested in sex, which Dr. Bard opined was corroborated by the lack of any evidence of sexual behavior. Mr. A. has offended with his penis, so if wanted to offend with his penis again that would be much more difficult. These physical limitations, however, in Dr. Bard's view, were not among the most important factors regarding Mr. A.'s risk. Dr. Bard found Mr. A.'s description of his prostate issues to be credible. He also found much of Mr. A.'s other reports to be credible but most of Mr. A.'s statements regarding SIST were corroborated by other records. He acknowledged, however, that in Mr. A.'s Virginia offense against his teenaged cousin he asked to "finger" the victim.
Dr. Bard did not interview any of Mr. A.'s treatment providers, parole officer or family members. Dr. Bard opined that Mr. A. did not suffer from a Mental Abnormality under Article 10. Mr. A. needs sex offender treatment even though he does not suffer from a Mental Abnormality. Mr. A. was not involved in any form of treatment at STARC at the time of Dr. Bard's interview and Dr. Bard said no drug treatment was being offered there. Mr. A. refused to sign a STARC form acknowledging expectations for programming which Mr. A. was given on April 7, 2022. Mr. A. is not working and attending only occasional programs at STARC.
Dr. Bard acknowledged that Mr. A. minimized his violent and sexually assaultive conduct against his 14 year-old cousin in the Virginia crime and acknowledged that he had not confronted Mr. A. during his interview regarding that minimization. Dr. Bard said he didn't think this issue was significant with respect to whether Mr. A. should be confined now. Mr. A. also minimized the sexual offense he committed at age 40 in 1997 and denied it involved a physical assault, but Dr. Bard again did not confront him with that minimization. Records indicate that Mr. A. violently raped and sodomized the victim in that incident but Mr. A. described the incident as a transaction in which Mr. A. provided crack cocaine in return for sex. Mr. A. also recounted a minimized version of the instant 2006 offense to Dr. Bard but Dr. Bard did not confront him on those discrepancies.
Prior to absconding, Mr. A. went to look for his cousins and an aunt but found they had passed away. Dr. Bard said he believed Mr. A.'s report that he had discovered his son had died from a cousin and had then absconded because "it is not something that people make up". Id., p. 193. Mr. A. did not tell his parole officer about this at the time but Dr. Bard believed Mr. A. reported his son's death to others once he was apprehended. Mr. A. hadn't been in touch with family members for years before he learned his son had died and Dr. Bard did not know if Mr. A.'s son had recently been in touch with him.
Mr. A. told Dr. Bard that he hadn't reported his absconding and crack use to anyone and "he said he lost control for a moment, he smoked for 10 days, he smoked hundreds of dollars, and 'I wish I never did it'". Id., p. 196. Mr. A. purchased crack from an $1800 government stimulus check but Dr. Bard didn't ask Mr. A. what else he may have spent these funds on. Mr. A. was located by GPS in an area frequented by drugs and prostitutes before his GPS battery died but he told Dr. Bard he did not engage in sexual activity. Dr. Bard said that a person smoking crack for 10 days does not think clearly and so Dr. Bard did not ask Mr. A. why he did not do things like buy a new GPS battery, clothing or a nice meal.
Mr. A. told Dr. Miljus he did not have sexual offense risk factors. He told Dr. Miljus that sexual deviance was an issue he had learned coping skills concerning while he was on SIST. Mr. A. told Dr. Bard that he was confident he would not sexually re-offend. Mr. A. was in the community for about a year before he re-offended in the 2006 instant offense. Mr. A. has offended while on crack and while not on crack. He reported at one point that crack was a sexual offense risk factor for him and believed he needed substance abuse treatment. He was willing to participate in sex offender treatment although he said he didn't need it.
Dr. Bard said he was guardedly optimistic that Mr. A. could make progress in sex offender treatment even though Mr. A. believed he did not need it. Dr. Miljus' interviews with Mr. A.'s SIST treatment providers indicated that Mr. A. participated in sex offender treatment at a surface level, did not discuss his urges or triggers and minimized his offending. Mr. A. said substance abuse was to blame for his sex offenses, but denied responsibility for them and had no insight about how visiting prostitutes might be a risk factor.
In SIST treatment plans, it was reported that Mr. A. lacks insight into the impact of his crimes on his victims. Dr. Bard said he did not believe Mr. A. had a great idea of how substance abuse impacted his sexual offending and in addition to substance abuse blamed being around the wrong people for offending. Dr. Bard agreed that during his absconding, Mr. A. was reverting to patterns of behavior concerning substance abuse that he previously engaged in. He acknowledged that one of Mr. A.'s treatment providers (not clear at what point) opined that Mr. A. didn't know how to prevent a re-offense, a proposition Dr. Bard said he didn't agree with. Dr. Bard agreed that going door-to-door to attempt to locate family members was not the optimal way to re-connect with them.
Mr. A.'s absconding was impulsive although his prior sex offending was not impulsive in the same way. Prior to his absconding, there was no evidence he would abscond and it was not something his treatment providers anticipated. While absconding, Mr. A. told Dr. Bard, he intended to turn himself in but Dr. Bard said he did not believe Mr. A. had any specific plan to do so. Mr. A. never used the term "willpower" to describe how he would avoid offending to Dr. Bard.
Mr. A.'s minimization of his prior criminal conduct did not impact Dr. Bard's views of Mr. A.'s risk since this factor has not been shown to increase recidivism risk. Mr. A. improved in treatment on SIST and was making an active effort. Two weeks prior to absconding, it was noted by treatment providers that Mr. A. lacked insight into his offending and how that offending had impacted his victims, focusing more on the impact SIST was having on his life. Mr. A. was reported to be frustrated and defensive when he was challenged on these issues by the persons in his therapy group but eventually accepted the group's feedback. Dr. Bard opined that in his experience, while insight into offending is helpful, a sex offender can avoid offending without having such insight.
The Court's Original Dispositional Ruling
After the original dispositional hearing in this case, the Court concluded that Mr. A. was not a DSORC and ordered him to be released to SIST over the State's objection in an unpublished written Decision and Order. The Court said that it agreed Mr. A. was a psychopath, was callous and continued to minimize his offending. The Court opined that Mr. A. had not significantly progressed in sex offender treatment or gained insight into his offending. He had a number of important risk factors for re-offense. The Court largely agreed with the "psychological portrait" of Mr. A. that both of the State's witnesses: Drs. Kostas Katsavdakis and Hannah Geller, testified about during the dispositional hearing.
The Court opined, however, there was not clear and convincing evidence Mr. A. was a DSORC. The Court cited Mr. A.'s age, and the fact that his actuarial risk to sexually re-offend was reduced because of it and also cited his health problems. It noted that Mr. A.'s last sexual offense was in 2006, almost 15 years prior to the dispositional hearing and that he had not incurred sexual disciplinary infractions while incarcerated. There was no evidence he consumed drugs or alcohol while incarcerated although such substances were available. In addition, Mr. A. had not incurred any disciplinary infractions during his latest 7 years in prison, indicating a significant reduction in his antisocial behavior.
Mr. A. told Dr. Schlosser (the Respondent's expert witness at the dispositional hearing) that he did not have much sex drive which he attributed in part to his enlarged prostate. Mr. A. has been anything but a reliable reporter. But, as Dr. Schlosser testified, such assertions were also consistent with Mr. A.'s age and medical condition. It was also relevant, in this Court's view, that, as Dr. Geller testified, she did not assign the condition of hypersexuality or sexual preoccupation to Mr. A.
The Court noted that Mr. A.'s sexual offenses had been preceded by some connection to his victims and that testimony had indicated that he was not an offender who "jumped out of the bushes" to assault strangers. The Court opined that such grooming behavior prior to offending would mean SIST would have a better chance of interrupting Mr. A.'s offending. Of course, Mr. A.'s absconding in the instant incident was impulsive and did negate the ability of SIST to monitor his conduct during the time he was not under supervision.
During the dispositional hearing the Court concluded that under the Static 99R coding rules, given the conflicting information about whether Mr. A. had ever lived with a lover for 2 years or more, that one point should not be added to Mr. A.'s score. The Court continues to believe Mr. A. should be scored with a "4" rather than a "5" on the Static 99R for the reasons Dr. Schlosser during the dispositional hearing and Dr. Bard during the instant hearing explained. With that score, state expert Dr. Katsavdakis testified, the actuarial risk to re-offend over a 5 year period would be between 10 and 12.1 %. This percentage score was applicable without considering the specialized supervision of SIST. During its trial and dispositional rulings, this Court opined that Mr. A. had no sexual disorder diagnosis and did not have a deviant sexual arousal to non-consenting persons. This also reduced his risk. In its dispositional decision crediting the opinion of the Respondent's expert, Dr. Schlosser, the Court also made the point that Dr. Schlosser (like this Court) did not believe Mr. A. was any more enlightened, insightful or benevolent than the State's experts. Dr. Schlosser (and this Court) simply believed the standard for confinement under Article 10 had not been met.
CONCLUSIONS OF LAW
The standard which courts must use in determining whether to subject a sex offender found to have a Mental Abnormality to confinement or SIST is provided by MHL § 10.07 (f):
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. In such case, the respondent shall be committed to a secure treatment facility for care, treatment, and control until such time as he or she no longer requires confinement. If the court does not find that the respondent is a dangerous sex offender requiring confinement, then the court shall make a finding of disposition that the respondent is a sex offender requiring strict and intensive supervision, and the respondent shall be subject to a regimen of strict and intensive supervision and treatment in accordance with section 10.11 of this article. In making a finding of disposition, the court shall consider the conditions that would be imposed upon the respondent if subject to a regimen of strict and intensive supervision, and all available information about the prospects for the respondent's possible re-entry into the community" MHL § 10.07 (f).State v. Michael M.
In State v. Michael M., 24 N.Y.3d 649 (2014) the Court noted that to be a dangerous sex offender requiring confinement, the State had to demonstrate the respondent had Asuch an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined..." 24 N.Y.3d at 658 (emphasis in decision). The Court held the statute "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." Id. at 659. The evidence in the case, the Court said, indicated the Respondent was struggling with his sexual urges, not that he was "unable to control himself" or "unable to govern his sexual conduct." Id. "But more than this-the inability to control sexual misconduct-would have had to be shown to prove that respondent was a dangerous sex offender requiring confinement." Id.
The Court outlined the negative behaviors which had improperly resulted in the trial court's DSORC finding after 5 months of SIST supervision as including the respondent's loss of his job, eviction from his apartment, failure to keep SIST appointments, expressed hostility towards SIST and termination from his required sex offender treatment program.
As this Court outlined in detail in its decision in State v. James F., 50 Misc.3d 690 (Sup Ct., NY County 2015) it respectfully disagrees with the Michael M. Court's construction of the statute. In this Court's view, the statute does not require an absolute inability to control sexually offending behavior before confinement may be ordered. Rather, what is required is such a degree of inability to control behavior that the respondent would likely offend again. In James F., this Court opined that this conclusion was apparent from the statute's language, supported by surrounding provisions of the statute and consistent with Article 10's policy goals. This Court opined that the statutory phrase "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" (emphasis added) did not require an unqualified inability to control sexually offending behavior. Rather, the statute used the word "such" as an adverb, meaning "to the degree that is specified or understood." The statute defined the degree of volitional impairment which would result in confinement as an impairment which created a probability of a new sexual offense-not a requirement that the only circumstance under which an offender could be confined was an unqualified absence of any ability to control sexually offending behavior.
This Court also outlined how the "inability to control" standard if applied literally would not apply to almost anyone, since virtually every human being has some ability to control sexually offending behavior. The Court outlined how this standard had been rejected as a minimum due-process requirement for sex offender civil management statutes by the United States Supreme Court in its decision in Kansas v. Crane, 534 U.S. 407 (2002). As the Supreme Court explained, the psychiatric community on both sides of the Crane case had reached the same conclusion:
[A]s different amici on opposite sides of this case agree, an absolutist approach is unworkable. (multiple citations omitted)... [M]ost severely ill people-even those commonly termed "psychopaths"-retain some ability to control their behavior. (citation omitted). Insistence upon absolute lack of control would risk barring the civil commitment of highly dangerous persons suffering severe mental abnormalities.. James F., 30 Misc.3d at 698-708, citing Crane, 534 U.S. at 411-412 (additional citations and quotations omitted).
Given that it appears the Court of Appeals did not intend its construction to result in the absence of confinement for any Article 10 offender, it remains to discern what an "inability to control" sexually offending behavior means. Case law has applied the standard in specific factual situations but no overarching principle has been articulated.
The most useful guidance with respect to the issues in this case has come from a trio of Fourth Department decisions: People v. George N., 160 A.D.3d 28 (4th Dept 2018), People v. William J., 151 A.D.3d 1890 (4th Dept 2017) and State v. Husted, 145 A.D.3d 1637 (4th Dept 2016), each of which concerned SIST respondents like Mr. A. who consumed alcohol or drugs while on SIST. In George N., the Court said the Michael M. standard did not require evidence of sexually inappropriate behavior while in SIST. The Court also said, however, that confinement is not justified for "any sex offender who drinks a beer, smokes marijuana, or jumps a turnstile while on SIST." 160 A.D.3d at 31.
The Court outlined how its decision in William J. found the State had sufficiently linked the respondent's crack use to sexual offending through expert testimony that the respondent's sexual arousal had been conditioned to cocaine usage. The respondent's "Pavlovian" response between crack use and oral sexual offending justified confinement based on crack use while on SIST, even in the absence of evidence of sexual offending. On the other end of the spectrum, the Court outlined, in State v. Husted, it had reversed a trial court DSORC ruling premised on the respondent's smoking marijuana, consuming alcohol and being removed from a sex offender program as a result, since the SIST violations "related solely to his use of alcohol and marijuana, and not to any alleged sexual conduct". 160 A.D.3d at 32 (internal quotations and citations omitted).
Other decisions following Michael M. have applied the inability to control standard in unique factual situations. See e.g., State v. Robert A., 187 A.D.3d 1326 (3rd Dept 2020), lv. denied 36 N.Y.3d 908 (2021) (Respondent's harassing and sexually threatening conduct at work while on SIST, sexual preoccupation and personality disorders justified DSORC finding); State v. David HH., 205 A.D.3d 1105 (3rd Dept 2022), lv. denied 29 N.Y.3d 913 (Respondent within days of release viewed pornography, used drugs, attempted to avoid drug tests, failed to charge his GPS batteries, failed to abide by his curfew, was removed from sex offender treatment for missed appointments and hostile behavior and engaged in a sexual relationship with a convicted felon with whom contact was prohibited). The question here, using the Fourth Department framework, is whether the State here demonstrated "a persuasive link between a nonsexual SIST violation and the offender's ability to control his [or her] sexual behavior". State v. David HH., 205 A.D.3d 1105 (3rd Dept 2022), quoting State v. George N., 160 A.D.3d at 31.
Basis for Court's Conclusion
The best evidence of what Mr. A. would likely do if released on SIST with respect to sexual offending, in this Court's view and as Dr. Bard outlined, is what he actually did. There is no evidence that Mr. A. sexually offended while on SIST. Indeed, there is no evidence he engaged in sexual behavior at all. There is no evidence he engaged in any sexual behavior even while on a 13 day crack binge with no supervision. In the Court's view, that conduct is not consistent with the "inability to control" sexually offending behavior standard which the Michael M. Court required for confinement. The important caveats to this are both the brief time Mr. A. was in the community, about 4 ½ months, and the fact that he engaged in significantly destructive behavior. Mr. A. both used crack cocaine, which was associated with one of his significant sexual offenses, the offense committed in 1997, and absconded from SIST.
Both Dr. Miljus and Dr. Bard accurately outlined how Mr. A. was "out of control" (to quote Dr. Miljus) during his absconding. There is no evidence, however, that this lack of control implicated sexual offending in any way. In fact, Dr. Miljus testified, the "Acute 2007" monthly risk assessment instrument used by SIST indicated Mr. A. was at a low risk to re-offend. Mr. A.'s score on the Static 99R indicates that offenders with Mr. A.'s static risk factors have recidivated at a rate of 9.2% over 5 years. That statistic has limited relevance since all human beings are unique and Mr. A. has dynamic risk factors which increase his risk. But, again, that statistic is also not consistent with the Michael M. standard. None of the experts who testified at the dispositional and instant revocation hearings opined that Mr. A. was currently evidencing hypersexuality or sexual preoccupation. On the other hand, however, it is significant that Mr. A. was in the community for about a year without evidence of sexually offending before he committed the instant offense in 2006.
The Court finds it relevant that Mr. A. is 66 years old and at an age where his actuarial risk to sexually re-offend is greatly reduced. Dr. Miljus discounted Mr. A.'s age, noting he sexually offended at age 49, even though the actuarial risk to re-offend begins to decrease at age 40. As Dr. Miljus testified, however, the actuarial risk to re-offend drops much more significantly after age 60. There is no evidence Mr. A. has engaged in any sexually offensive behavior since the instant offense 16 years ago.
Mr. A. reports that he is unable to achieve an erection and finds masturbation painful. As was recounted during the hearing, a person can sexually offend without an erection and Mr. A. has been anything but a reliable reporter, so statements he makes which are not corroborated should not be accepted at face value. Mr. A.'s report that he has an enlarged prostrate is supported by medical records, however, and that condition can impact sexual functioning. He also has other conditions which may be relevant to sexual functioning, like diabetes. So there is at least some support for the notion that, along with Mr. A.'s age, his physical condition may be reducing his re-offense risk.
Relapse is a common occurrence in substance abuse treatment. In fact, Dr. Bard said relapse occurs for virtually all substance abusers. That in no way excuses Mr. A.'s conduct and the violation here concerned not only substance abuse but, in the Court's view, the more serious lapse in absconding from supervision. But Mr. A.'s cocaine relapse must be understood in the context of what occurs when persons are being treated for a substance abuse dependency. The Court believes that the SIST violation here was precipitated by Mr. A. learning his son died. The Court reached that conclusion after reviewing the more detailed recitation of Mr. A.'s reports about this issue in the psychiatric records and also agrees with Dr. Bard that this would seem an odd circumstance to lie about.
The Court also has considered the fact that Mr. A. appeared to be doing well on SIST prior to his absconding. Thus, this is not a case like State v. David HH. where the Respondent was non-compliant with SIST in a myriad of ways from the outset. Nor is there any evidence that Mr. A. engaged in any threatening or violent behavior while on SIST. Mr. A. had apparently refrained from using drugs prior to the instant violation even though he was living in a homeless shelter where drugs are readily available. He was also apparently able to avoid any altercations at the shelter although the shelter environment can precipitate conflicts among residents. Mr. A.'s crack use and absconding was an extended and very serious SIST violation but was also a lapse occurring in one course of conduct. On the other hand, there is no telling how long that course of conduct would have continued had Mr. A. not been arrested. Upon being committed to OMH again after being apprehended, Mr. A. was noted to have engaged in one verbally abusive incident with staff, outlined here. His conduct in OMH otherwise, however, has not been problematic.
Mr. A. has no sexual disorder diagnosis and that is relevant to both his recidivism risk and the validity of subjecting him to the Article 10 system. He has ASPD, a condition which studies have determined can be assigned to as much as 80% of the prison population (see State v. Donald DD. And Kenneth T., 24 N.Y.3d at 189) and stimulant use disorder. Mr. A. has a horrific history of sexual and non-sexual offending. The Article 10 petition against him which has now resulted in his confinement pending this decision, however, has been dismissed twice - by two different trial court judges with both of those rulings reversed on appeal. This Court's initial dismissal was based in part on its view that the diagnoses which had been assigned to Mr. A. did not meet the minimal due-process requisites for sex offender civil management outlined by the Court of Appeals. The second reversal of the petition's dismissal after a bench trial verdict by Judge Pickholz was based on the preclusion of a diagnosis which this Court did not even credit in making the Mental Abnormality finding which is now subjecting Mr. A. to civil management.
The State presented a related series of reasonable arguments for why Mr. A. is a DSORC. In the Court's view, the strongest argument, and one Dr. Miljus touched on in various ways during his testimony, was the following. Mr. A. has a Mental Abnormality. His sexual offending can only be effectively controlled through confinement or SIST. He has not been successful on SIST, however. Indeed, had he not been arrested, it is not clear he would have ever returned to supervision. Without SIST supervision, given all of his risk factors and history, it is reasonable to conclude Mr. A. will offend again. Moreover, it is not fair to the State Department of Corrections and Community Supervision ("DOCCS") and OMH who are responsible for supervising Mr. A. and attempting to ensure he does not re-offend, to again saddle these agencies with attempting to supervise a person who might again impulsively abscond without warning. The Court would also note that Dr. Miljus conducted a more thorough review of Mr. A.'s condition than Dr. Bard. Dr. Miljus took the time to interview a number of treatment providers who had clinically interacted with Mr. A. and his parole officer. Dr. Bard did not interview anyone other than Mr. A.
The Court's conclusion here, however, is dictated by the DSORC standard of proof and the Court's decision in Michael M. In this Court's view, there is not clear and convincing evidence today (as opposed to 16 years ago when Mr. A. last sexually offended) that Mr. A. is unable to control his sexually offending behavior. In fact, in contrast to the record during the dispositional hearing, there is new evidence which points in both directions with respect to whether the DSORC standard was met. On the one hand, Mr. A. absconded from supervision and again began using crack cocaine, which was associated with at least one of his prior sexual offenses. On the other hand, there is now a record (albeit brief) of what Mr. A. has actually done with respect to sexual offending while in the community, both under SIST supervision and while on a crack binge. Mr. A. was not known to have engaged in a single behavior which constituted, or was preparatory to sexual offending. He was not known to have engaged in sexual behavior at all.
This case falls somewhere between a situation like that in William J., where there was a demonstrated direct link between cocaine use and sexual offending and the circumstance in Husted where there was not such a direct link. Mr. A. is known to have used cocaine in one of his serious sexual offenses. At different times he has both acknowledged that drug use has precipitated his offenses and minimized the impact of such substance abuse. There is no question that cocaine and alcohol abuse can disinhibit a person's impulses and increase the risk to re-offend. With respect to Mr. A., however, there is no evidence that cocaine had or today has anything like the direct link outlined in William J. " [I]n the absence of evidence of sexually inappropriate conduct while on SIST, it becomes incumbent on [petitioner] to demonstrate a persuasive link between a nonsexual SIST violation and the offender's ability to control his [or her] sexual behavior". State v. David HH., 205 A.D.3d 1105 (3rd Dept 2022), quoting State v. George N., 160 A.D.3d at 31. Reasonable minds might differ on whether this standard was met in this case, but in the Court's view, the State did not prove such a link under the DSORC standard.
The Court recognizes the difficult burden the State will face regarding Mr. A.'s supervision. DOCCS and OMH had no preliminary indication that Mr. A. would abscond and so were without tools to prevent this impulsive act when it happened. The Court would recommend, as Dr. Bard did, that any substance abuse treatment Mr. A. previously received be enhanced and that any additional steps which could more readily detect drug or alcohol use be considered. This Court might determine that a future non-sexual SIST violation like that which occurred in this case would be sufficient to result in confinement. But, this Court does not believe under the record here that the DSORC standard was met. This constitutes the Decision and Order of the Court.