Opinion
250162-2018
06-12-2019
In the Matter of the Application of the STATE of New York, Petitioner, v. STEVEN W., an inmate in the custody of the New York State Department of Corrections and Community Supervision, Respondent, for Civil Management Pursuant to Mental Hygiene Law Article 10
Mental Hygiene Legal Service, John Boselli, Esq., Jessica Botticelli, Esq. Attorney for Petitioner Elaine Yacyshyn, Esq., Assistant Attorney General, NY State
Mental Hygiene Legal Service, John Boselli, Esq., Jessica Botticelli, Esq. Attorney for Petitioner
Elaine Yacyshyn, Esq., Assistant Attorney General, NY State
Miriam R. Best, J. The State of New York ("Petitioner") has filed a Petition for Civil Management for Respondent pursuant to Article 10 of the Mental Hygiene Law ("MHL"). On November 27, 2018 and December 21, 2018, this court held a Probable Cause hearing pursuant to MHL § 10.06(g) to determine whether there is probable cause to believe that the Respondent is a sex offender requiring civil management. At the hearing, Dr. Hannah Geller testified on behalf of Petitioner. Respondent did not present any witnesses. I found Dr. Geller to be credible and credit her testimony.
Although he made no such motion in advance of the probable cause hearing, Respondent announced during the hearing that he intended to file a motion after the hearing to "preclude," both at the hearing and at trial, Geller's testimony about what he said to her in the CRT psychiatric examination interview, on the ground that his constitutional right to counsel was violated (H2 28-29). He thereafter filed a written motion to that effect. For the reasons that follow, the motion to preclude is denied in all respects. The court also finds that Petitioner has established probable cause to believe that Respondent is a sex offender requiring civil management.
At one point during the hearing, counsel for Respondent asserted that Geller's knowledge of a letter from Respondent's Legal Aid lawyer (Respondent's Exhibit C) was relevant to the "voluntariness of [Respondent's] participation in the interview" (H2 28). (Numbers in parentheses preceded by H2 refer to the transcript of December 21, 2018.) However, Respondent did not argue, either at the close of the hearing or in his subsequent written motion to preclude, that his statements to Geller were involuntary in the sense that they were coerced. Indeed, there was no evidence of coercion, see infra p 526–27.
Evidence at the Hearing
On May 23, 2018, Respondent was served with a Notice of Referral to the Case Review Team ("CRT"), indicating that he was being investigated for post-incarceration civil management pursuant to MHL Article 10 and could be referred for a psychiatric examination and potentially for further proceedings under Article 10 (Respondent's Aff p 4). On June 13, 2018, Andrea Yacka-Bible, a staff Attorney with the Legal Aid Society's Criminal Appeals Bureau representing Respondent in his Sex Offender Registration Act ("SORA") levelling matter, sent a letter to Jason D. Effmans, the Associate Commisioner of the New York State Department of Corrections and Community Supervision ("DOCCS"), stating that the Legal Aid Society had been assigned to represent Respondent at a SORA hearing (Resp Exh C). Yacka-Bible wrote that Respondent would participate in the CRT examination but only if it was court-ordered and if counsel was appointed (id. ). Yacka-Bible also requested that she be "informed" of the result of the CRT examination, claiming that it was "directly relevant" to her representation of Respondent at the SORA hearing (id. ). The letter does not state that Yacka-Bible represented Respondent for purposes of any Article 10 petition that might be filed and does not advise the recipient that Respondent should not be questioned in her absence (id. ). On June 14, 2018, Amy J. Mahar, an Associate Attorney for the Office of Mental Health of the State of New York ("OMH"), informed Yacka-Bible that "[n]o right to counsel attaches prior to a petition for civil management being filed by the Office of the Attorney General," and that Respondent would be "be offered an interview by a psychiatric examiner at which time he will be advised that he can chose [sic ] not to participate" (Resp Exh D). Geller has been employed as a psychiatric examiner at OMH for five and one-half years (H 8). In that capacity, she performs Article 10 evaluations, SIST evaluations, biannual evaluations and other consultations on request (id. ). She is licensed to practice psychology in the State of New York (H 9). Respondent stipulated to her qualification as an expert in forensic psychology and in the evaluation and diagnosis of sex offenders (H 10-11).
Numbers in parentheses preceded by an "H" refer to the transcript of November 27, 2018.
Geller was assigned to evaluate Respondent to determine whether he has a mental abnormality and to look at both risk factors and protective factors that could help manage his risk of re-offending (H 12-13). In preparation for the interview, she reviewed the CRT summary of May 15, 2018, a CRT criminal history report of May 16, 2018, Respondent's rap sheet, police department records, a Bronx County certificate of disposition, district attorney report, pre-sentence reports, sentencing and commitment paperwork and parole board reports. These records are "deemed reliable" in Geller's profession for evaluating sex offenders (H 21-22; PX2 p2).
On June 18, 2018, Geller interviewed Respondent by video teleconference while he was incarcerated at Ulster Correctional Facility (H 13, 14). Both Geller and Respondent had a copy of the Notification of Rights, which explained the purpose of the interview, the topics that might be discussed, and why Respondent was referred for the interview. The form also advised that anything said during the interview could be put in the report, that speaking "off the record" was not permitted, and that Respondent had the right not to participate in the interview, although a report would be written regardless of participation and could become part of future criminal proceedings if he were arrested for future crimes (H 16). Geller knew that Respondent had consulted with an attorney who worked with him on his SORA matter and that the attorney "advised [Respondent] and wrote a letter to us that he would agree to participate in an interview only if the evaluation was court ordered" (H 16, 17, 26, 27, 35). Respondent requested that an attorney be present for the CRT interview (H 17). Geller explained that he was not entitled to an attorney for the CRT interview, that his participation in the interview was voluntary, and that she would write a report whether he participated or not because it was "part of the process and an attorney can not prevent that from happening" (H 17, 37). She recommended that he call his attorney and left the room to "make [Respondent] more comfortable to speak with his attorney on his own" (H 18). When she returned, Respondent continued to insist that the interview had to be court-ordered (id. ). Geller again explained that this was not the same as SORA, that it was not and would not be court-ordered, and that he did not have to participate (id. ). Respondent thought about it for approximately 30 minutes, then told Geller he would participate and signed the notification of rights form (H 18, 38). Geller diagnosed defendant with Antisocial Personality Disorder ("ASPD"), psychopathic traits; pedophilic disorder, non-exclusive types, interested in females; and hypersexuality, also known as sexual preoccupation (H 22-23). Based on her review of the documents and her interview with Respondent, Geller concluded with a reasonable degree of professional certainty that Respondent currently suffers from a mental abnormality (H 23).
Regarding his past criminal history, Respondent committed his first sex offense when he was 16 years old (H 46). Respondent was in the basement with his best friend playing video games (H 47). His best friend's 11-year-old sister had a crush on him and followed him everywhere (H 47). Respondent stated that he was not sexually interested in her, but felt he could make her do something sexual if he wanted to (H 47):
He told her to close her eyes, put a hoodie or sweater on her head and told her to open her mouth and he ejaculated in her mouth. She became very upset. She started crying and went to tell her brother. [Respondent] explained ... this girl was supposedly known for telling lies, and he used this known fact to defend against [sic ] himself. He said to his friend, "You know she's lying all the time, she's lying now."
(H 47.) Geller also understood that the 11-year-old's four-year-old sister was in the room sitting under a chair or piece of furniture when Respondent ejaculated in the older child's mouth (H 48, 49, 50). On another day, Respondent went to pick up his friend at school and his friend appeared upset. He showed Respondent a card with the detective's name; the friend was supposed to go speak to the detective that day (H 48). Respondent told Geller that "he did not think anything of how his actions affected the girl. He didn't think she would notice .... He also indicated that he was startled at the fact that his friend was upset about that, about his actions" (H 48, 60). Respondent was eventually arrested (H 48). According to Respondent, after either Criminal or Family Court proceedings, he was supposed to take a sex offender treatment program in the community (H 52). Respondent reported that he completed the class but did not take it seriously (H 53).
The Article 10 qualifying offense for which Respondent is currently incarcerated took place in 2013, when he was 21 years old (H 25, 26).
[Respondent] was employed at an after-school program or daycare, I guess after-school program, more likely. He, he was working with kids around eight years old, and he invited one of the girls to go with him to the staircase, where he told her to stand on her knees, put a sweater on her head to cover her eyes, and open - - told her to open her mouth. He masturbated and ejaculated in her mouth.
At another date he again suggested that she go with him. However, she was not comfortable and asked that another girl come with her. So he told both girls to close their eyes, and he repeated what he did the first time with one of them.
...
He made her kneel with [the] sweater on her eyes, told her to open [her] mouth and again ejaculated in her mouth.
And my understanding is that on a different occasion, the first girl was not at school, she didn't come, but the second girl told him that she wanted to go with him or indicated that she was willing to go with him, and at that point he also put her on her knees, put [a] sweater on her head, and he put [his] penis in her
mouth and instructed her to suck on it, and ejaculated in her mouth.
And my understanding is that there was also a third girl involved, who he touched inappropriately on her buttocks.
(H 26-27.) Respondent pled guilty under SCI Numbers 3713-2014 and 3714-2014 to two counts of Sexual Abuse in the First Degree and was sentenced to concurrent terms of four years' incarceration followed by ten years' post-release supervision (H 38, 40).
Respondent discussed his qualifying offense with Geller and admitted that he took one of the girls to the staircase and ejaculated in her mouth. He observed that after the incident, the girl started acting uncomfortable, not participating in his class when she did participate in other teachers' classes (H 41, 42). He also stated that another time, when he suggested they go to the staircase, the first girl indicated she would only go if her friend could come, so he took both girls but told the second one to go upstairs while he ejaculated in the first girl's mouth (H 42). Respondent also stated that on one occasion, when the first girl "that he preferred to do it with" was absent,
the other girl who came with him whom he sent upstairs on that previous occasion, the girl told him that she wanted to go with him to the staircase and she wanted to do what he did with the first girl. And he said to me that he refused, she said that if he didn't do it, then she would tell on him, so he decided to take her and he also put her on her knees, put a sweater over her head, and put his penis in her mouth, I believe. But something moved. His foot may have moved and so alerted the girl. She opened her eyes. She saw the penis and got uncomfortable, and then she said to him it was okay really, that she knew what it was and she was okay with it.
(H 42, 43.) Respondent stated that he found the first girl "attractive because she was Hispanic, chubby and light-skinned" (H 44).
Geller wanted to ask Respondent about his qualifying offense to see how he was "conceptualizing it and how he would explain his inclination" (H 45). The pre-sentence report stated that Respondent indicated that he was attracted to one of the girls. During the interview, Respondent denied being attracted to the girls but then said one of the girls had "attractive traits" (H 45, 59). Geller believes that Respondent was sexually attracted to the children, "[o]therwise he would not have committed sex offenses against them" (H 59). Respondent could not explain why he offended against the girls even though he had "consenting partners" at the time (H 45). That indicated to Geller that Respondent
indeed has an interest in prepubescent children, a sexual interest, which he does not understand, and whether he's aware of it or he intentionally distorted the report for me, I'm not sure, but the point is that in his interview, after all his sex offender treatment program participation, he still did not understand his inclination, his interest in these
children, and what drove his conduct.
(H 45.) This also indicated to Geller that Respondent has a predisposition to commit sex offenses, in that he has a
sexual interest in children that he could not control, that he had acted upon multiple occasions, and that his lack of understanding of his sexual drive and his sexual preoccupation are what made it difficult for him to control his behaviors.
(H46.)
These offenses informed Geller of Respondent's continuity of interest in prepubescent children and showed a pattern of sexual and predatory manipulative behavior from his teens into adulthood, that is, from the age of 16 to 21, indicating at least five years of interest in children (H 50, 58). They also showed that Respondent is aroused to similar acts and places his victims in a similar way (H 50). Geller also noted that Respondent "seems to blame the victims a lot" (id. ). Further, he acted on his interest in prepubescent children several times despite knowing the consequences and understanding the repercussions of his behavior (H 59). All of these things informed Geller's diagnoses of pedophilia and ASPD, his predisposition to commit sex offenses and his difficulty in controlling this behavior (H 50). Moreover, Respondent's interest in young children is sexually deviant (H2 9). Geller believes that Respondent
has not addressed [his sustained interest in offending against children] in sex offender treatment. He was denying, for the most part, his interest. So, I don't see how he has changed over time. So, I would say, to me, that's an evidence that he has the same sexual deviant interest now as he did when he walked into prison.
(H2 49.)
When, near the end of the interview, Geller suggested that Respondent might have a mental abnormality, he said he did not, because
Well, for one, I understand that my sexual behaviors are towards children and some types of ... it seems that I targeted them for this reason specifically. And despite the behavior, I know it is not that. I know myself and I think about this everyday. I may have said things ... that I did not have much knowledge about that ... there was a bunch of going on ... I took time to learn what these behaviors mean, and I feel like I am not ... I am actually teaching them. I've helped children walk away with the information they will apply. It
was never my intention to do that. I do not go there to target kids. I know I am there to help someone. I know it is very fulfilling.
(H2 52.) Geller took this to mean that Respondent was trying to explain to her and to himself that he was at the daycare to teach children "and he likes to be helping.... but these behaviors happened and he doesn't know why, basically" (H 52).
During the interview, Respondent discussed an incident in which charges were dropped because the victim did not wish to go forward (H 53, 54). A young female of "consenting age" complained that Respondent had asked her to become his sex slave for a few weeks and said if she refused he would expose videos of them having sex for the public to see (H 53). This happened when Respondent and the woman were in a program to which Respondent had been sent because he could not finish high school on time (H 54). Respondent thought the woman was 21 or 22 years old and described her as "weird and having no sexual knowledge" (id. ). He described the "sex slave" comment as a joke (H 54). He also stated that "he felt that if a virgin - - if a woman was a virgin and she didn't have any sexual experiences besides him, he has a certain power over her and he continues to believe that" (id. ) and that he liked his sense of control that he believed he had (H 55). This incident, which took place when Respondent said he had a girlfriend, informed Geller about the "same pattern of sexual predatory behaviors against vulnerable individuals, whether children or people with potential[ ] intellectual disabilities, that [Respondent] has a specific pattern of manipulating these people to engage in sexual acts with him" (id. ). "[A]ll these factors combined informed [Geller] about [Respondent's] predisposition to committing sex offenses and difficulty with control" (id. ).
While he was incarcerated, Respondent received three sex-related tickets (H 56). One was for exiting the bathroom with his zipper unzipped and his penis exposed, one was for masturbating in front of a female correctional officer and denying her order to stop, and one was for possessing pornographic material while in sex offender treatment (H 56, 57; H2 85). Respondent "justified" the pornography and masturbation in front of the female correctional officer,
saying she allowed it and saying it's, in fact, better to look at a picture and to masturbate to a picture. So it appears that he lacks an elementary appreciation of how inappropriate his behavior was.
[H]e also offended against the correctional officer at the time he was in a sex offender treatment program, so he completely dismissed all the values that the program was trying to teach him. And still in terms of the triggers, he believes that for him using pornography is just fine and it's not related in any way to sexual offending.
(H 60, 60 A.)
Geller testified that defendant met the criteria for ASPD, a chronic disorder:
He satisfies all the criteria, most of the criteria for identity self direction, lack of empathy and intimacy, as well as for manipulativeness, callousness, deceitfulness, risk taking, impulsivity, and ... irresponsibility [sic ].
(H 62.) Because she diagnosed ASPD, Geller also administered the Psychopathy Checklist Revised ("PCLR") developed by Dr. Robert Hare (H2 7, 68). Using information she obtained from Respondent's records and information from the interview (H2 8), Geller arrived at a score of 26.3 (id. ); "[s]ome research ... indicates people who score on [the] PCLR over 26, 26 and above, basically, as well as those who in concert possess sexually deviant interests are at a higher risk [of] re-offense" (H2 8). For Respondent, "sexual deviance is sexual interests ... in young children" (H2 9). As to how the psychopathic traits and the sexual deviance relate to Respondent's risk to re-offend sexually, Respondent has "had [a] specific interest in offending against vulnerable population[s], which includes children" as well as females who may be "intellectually or emotionally" vulnerable (H2 9-10). He uses these vulnerable females "to gratify himself sexually without any feelings of guilt," does not understand how he is hurting the victims, and does not have "the emotional structures to prevent the unwanted behavior" (H2 10). Respondent "doesn't really care for societal rules, is good at manipulating others ... [and] at picking the vulnerable victim ... and how to push the buttons of a woman to get her to engage in sex with him" (H 64-65). His diagnosis of ASPD with psychopathic traits may put him at a high risk to re-offend because
In diagnosing Respondent with ASPD, Geller first used the alternative model, which she prefers professionally, rather than the traditional model contained in Section 2 of the DSM (H 54-55). Geller testified that it is appropriate to use both the traditional and alternative models in a clinical and forensic setting (H2 61).
he's still defiant of authority and he has other symptoms of antisocial personality disorder present.
He is, he's already at risk for committing crimes now, given that he has a history of sex crimes already, even though he is fairly young and he also has a well-formed pattern of how he commits these crimes and how he manipulates his victims. He's also hypersexual.
So all these, all these factors taken together may put him at high risk for re-offense because he doesn't care for societal rules.
(H 62.)
Geller assigned Respondent the condition of hypersexuality because he offended against at least two girls, had impersonal sexual relationships with multiple women at the same time and received sex-related tickets while in prison (H2 5). Geller testified that
sexuality is the main driving force in his behaviors. He hasn't had jobs that he cares for. He didn't have relationships that are significant enough. Even friendships were broken up because of his sexual inappropriate behavior. But sex is a strong motivating force for him and he brings his sexual urges to work, to relationships, to everywhere pretty much. So it's something that is kind of in front of him all the time.
Geller is unaware of any research that indicates that hypersexuality can predispose a person to the commission of conduct constituting a sex offense or result in a person having serious difficulty controlling his or her sex offending behavior (H 90).
Geller also administered the Static-99R, an actuarial risk assessment instrument based on historic, or "mostly unchangeable" factors, which is one of the most widely used in her profession (H2 10-11, 13). Respondent scored a five, meaning that his risk for re-offense was "above average," specifically, 2.7 times higher than that of a "typical" sex offender (H2 11, 12). Geller also assessed Respondent's dynamic risk factors, which can change from year to year and situation to situation, and give a "better, fuller picture of where the person is, in terms of the risks" (H2 13). Geller found the following dynamic risk factors most relevant to her assessment:
Sexual preoccupation, deviant sexual interest. Specifically preference for children. Potentially multiple paraphilias or multiple sexual interests that are deviant. Also, combination of sexual deviance and psychopathy category.
Also offense supportive attitudes that may apply. Also lack of emotionally intimate relationships with adults. Life-style impulsivity, such as self regulation problems, recklessness and employment instability, as well as poor cognitive problem-solving .... [and] the potential[ ] resistance to rules and supervision.
(H2 14.) The fact that Respondent has not addressed several risk factors through the treatment he received through DOCCS contributes to his psychological portrait and indicates that he has a predisposition to committing sex offenses and serious difficulty controlling that predisposition (H2 15).
Because Respondent was unable to complete sex offender treatment despite a couple of attempts, his risk for re-offending increased (H2 15, 18, 19). He also lacks pro-social supports. Respondent reported that people in the community were not very supportive of him (H 2 15, 16). Geller spoke with one of his family members who raised him, who
although she technically expressed concern and love for him and desire to help him - - and I specifically asked her whether she would help him fulfill the parole conditions; for example, he might not be allowed to be around children. She was very adamant that she will not stand for that and that a family has a lot of children and, you know, the whole family loves him and he has the right to be around family.
(H2 16.) Geller is unaware of the existence of any plan Respondent has that would reduce his risk of re-offense if he were released to the community (H2 19), although being on parole could help manage it (H 2 20).
Geller believes that Respondent's risk for re-offense is "fairly high" (H2 20). In considering all of the information available to her as well his interview, Geller concluded that Respondent has no internal structures to prevent re-offending. He has had difficulty controlling his behavior when in a structured environment, "[b]ut when he's outside, there will be even less structure" (H2 21). In short, Geller concluded that Respondent is a "sexual predator who specifically looks for vulnerable individuals to gratify his sexual interests" (H2 22). Moreover, his "psycopathic personality structure prevents him from developing healthier relationships with adult wom[e]n that could potentially deter him from these behaviors" (id. ).
Respondent reported that he had previously been medicated with Remeron to treat depression and stopped taking it because it made him feel "weird" (H2 39-40); Geller agrees that he exhibits some symptoms of major depressive disorder (H2 100). While she considered the condition of post-traumatic stress disorder, one of the criteria of which is self-destructive behavior, she ultimately did not assign that condition to him (H2 44, 90, 112). She conceded, however, that Respondent had reported to the Probation Department in a 2015 Bronx pre-sentence report that he had been cutting his left arm since he was 16 years old (H2 42) and that cutting oneself is self-destructive behavior (H2 45).
Respondent also reported that he was abused between the ages of six and 10 by a cousin who was five years older than he (H2 90, 91). They would watch pornography; sometimes his cousin would masturbate him but more often Respondent would masturbate his cousin (H2 91). The cousin also anally penetrated Respondent (H2 91). Respondent just "dealt with the abuse" because "you don't snitch on family" and he did not want his cousin to be in trouble (H2 91, 92), although ultimately Respondent did tell his cousin's mother (H2 93). Respondent offered this abuse as a potential explanation for his offenses against children (H2 93), but Geller believes that the "majority of victims of sexual abuse [are] more likely to be abused again rather than perpetrate abuse against others" (H2 111). Although this self-reported abuse may have played a role in his early sexualization (H2 93), Respondent "is callous despite having been victimized, according to his self report" (H2 22).
In Geller's opinion, no measure short of confinement would protect the community from Respondent (H2 24-25).
The Parties' Contentions
Respondent posits a right to counsel in a CRT examination that is co-extensive with a criminal defendant's right to counsel. He argues that he was in custody when questioned by a state actor at the CRT examination and that he "unequivocally invoked his right to counsel" for that examination. He argues further that because Yacka-Bible had "already entered into the case," he could not waive his right to counsel in the absence of counsel (Resp Aff p 7). Although he concedes that in Matter of State v. John P. , 20 N.Y.3d 941, 958 N.Y.S.2d 667, 982 N.E.2d 587 (2012), the Court of Appeals rejected a claim that evidence obtained from a CRT psychiatric examination under MHL § 10.05(e) was inadmissible because counsel was not present during the examination, Respondent notes that the Court left open the question of "whether there exists a constitutional due process right to counsel in article 10 proceedings that is similar to, or coextensive with, the right to counsel in criminal cases," 20 N.Y.3d at 943, 958 N.Y.S.2d 667, 982 N.E.2d 587. He urges this court to make such a ruling.
Respondent also argues that the state has not met its burden to show that he requires civil management (H2 122). He argues that the only disorder he was diagnosed with is ASPD, which is insufficient under State v. Donald DD , 24 N.Y.3d 174, 996 N.Y.S.2d 610, 21 N.E.3d 239 (2014), and that the psychopathic traits Geller identified are not materially different from features of ASPD itself (H2 122-23). He discounts the diagnosis of pedophilic disorder by characterizing it as "merely the crimes repackaged with the pathological label" (H2 123). He also argues that the condition of hypersexuality is not enough "to surmount the Donald DD hurdle" (H2 123, 124). First, the First Department held "on an analogous record" in State v. Gen C , 128 A.D.3d 467, 9 N.Y.S.3d 48 (1st Dept. 2015), that "hypersexuality was an insufficient Article 10 predicate where hypersexuality had not been shown to predispose an individual to the commission of Article 10 sex offenses, nor had it been shown to result in serious difficulty in control" (H2 123-24). Moreover, because hypersexuality was repeatedly rejected for inclusion in the most recent edition of the DSM, it "is not a viable clinical diagnosis." Using it as "his predicate disorder" would do exactly what the Court of Appeals feared in State v. Shannon S. , 20 N.Y.3d 99, 106-07, 956 N.Y.S.2d 462, 980 N.E.2d 510 (2012), cert denied , 568 U.S. 1216, 133 S.Ct. 1500, 185 L.Ed.2d 556 (2013), when it observed that "[c]ertain diagnoses may ... be premised on such scant or untested evidence and ‘be so devoid of content, or so near-universal in [their] rejection by mental health professionals,’ as to be violative of constitutional due process and preclude their meaningful use in civil confinement proceedings" (H 124-25). Petitioner opposes Respondent's motion to preclude and argues that it has established probable cause. On the preclusion issue, MHL §§ 10.06(c) and 10.08(g) provide Respondent with the right to counsel when a civil management petition has been filed or where the Attorney General has requested the court to order a psychiatric evaluation of the Respondent, but not before (Pet Aff in Opp ¶¶ 27-29). A pre-petition evaluation of a convicted sex offender is merely a screening process; it not only precedes the commencement of a formal adversarial proceeding, it occurs before any decision to bring such a proceeding is made (id. ¶ 30). Moreover, Yacka-Bible's June 13th letter makes clear that she represented Respondent in his SORA matter only. MHLS was appointed to represent Respondent in the Article 10 proceeding only when Petitioner filed a sex offender civil management petition against him on July 6, 2018 (id. ¶¶ 17, 57 fn 4).
According to Respondent, "the DSM-5, which Dr. Gell[e]r used and relied on in diagnosing [him], says that ASPD and psychopathy are trying to operationalize the same diagnostic construct" (id. ).
Although Respondent argued that Geller conceives of hypersexuality as a disorder rather than a condition, her testimony on this was in answer to a question on cross-examination, and she repeatedly referred to it as a condition on direct examination (H2 126). Nor did Respondent have a convincing answer during oral argument when asked how hypersexuality could be "universally rejected" when it passed a Frye hearing conducted by the Honorable Dineen Riviezzo in State v. Victor H , 59 Misc. 3d 1204(A), 2018 WL 1433196 (Sup. Ct., Kings County 2018) (H2 125-27).
Petitioner also rejects Yacka-Bible's claim that the CRT determination is "directly relevant" to her representation of Respondent at a SORA hearing (Pet Aff in Opp ¶ 62). SORA is a "registration and notification statute directed at protecting the public from sex offenders, who upon their release, are assigned a risk level" (id. ¶ 64), whereas the Sex Offender Management and Treatment Act and MHL Article 10 were "designed to reduce the risks posed by and to address the treatment needs of those sex offenders who suffer from mental abnormalities that predispose them to commit repeated crimes" (id. ¶ 65). Article 10 proceedings are civil in nature and a CRT determination is unrelated to a SORA determination (id. ¶ 66). Finally, Petitioner argues that Respondent was not "in custody" when Geller interviewed him, did not unequivocally invoke his right to counsel, and Yacka-Bible's representation on the SORA matter did not constitute "entry" in the MHL Article 10 proceeding.
Petitioner's argument on the custody issue is nuanced. Petitioner concedes, as it must, that Respondent was a sentenced prisoner residing in a New York State Correctional Facility during his interview with Geller. Indeed, the statute requires that a CRT interview take place prior to a Respondent's release from custody, MHL §§ 10.05(b), (e). Petitioner argues Respondent was not "in custody" in the sense that he could not be interviewed without Miranda warnings being required. Petitioner relies on People v. Alls , 83 N.Y.2d 94, 608 N.Y.S.2d 139, 629 N.E.2d 1018 (1993), arguing that Miranda warnings are required only where the circumstances surrounding the encounter between the inmate and correction officers evince additional restraint "over and above that of ordinary confinement in a correctional facility," which was not the case here (Pet Aff in Opp ¶¶ 79, 80).
On the issue of probable cause, Petitioner argues that the state has established probable cause to believe that Respondent requires civil management. In addition to ASPD, Geller diagnosed pedophilic disorder and explained "how deeply entrenched" that disorder is in Respondent. Geller also explained how she reached that conclusion (H2 129-30). As for the condition of hypersexuality, Shannon S. does not help Respondent, because the Court of Appeals specifically held there that a DSM disorder is not required to conclude that a detained sex offender has a predisposing diagnosis or condition (H2 130). Finally, hypersexuality has passed a Frye test and Gen C. did not reject hypersexuality outright; rather, the evidence before the court in that case did not sufficiently link it to a mental abnormality (H2 132).
Analysis
Respondent Had No Right To Counsel at the CRT Interview
[W]hen the state acts through its parens patriae power to confine a sex offender for therapy and treatment, commitment proceedings are civil, not criminal, in nature ( Allen v. Illinois , 478 U.S. 364, 374 [106 S.Ct. 2988, 92 L.Ed.2d 296] [1986] ; Addington v. Texas , 441 U.S. 418, 425 [99 S.Ct. 1804, 60 L.Ed.2d 323] [1979].... The constitutional protections of the Fifth and Sixth Amendments do not apply in such proceedings ( Allen , 478 U.S. at 374 ). Rather, the Due Process Clauses of the Fifth and Sixth Amendments, as expressed by the Mathews v. Edridge [Eldridge ], 424 U.S. 319, 335 [96 S.Ct. 893, 47 L.Ed.2d 18] [1976] balancing test, govern the scope of procedural due process ( Addington , 441 U.S. at 425 ).
Matter of State v. Floyd Y. , 22 N.Y.3d 95, 103, 979 N.Y.S.2d 240, 2 N.E.3d 204 (2013). See also Matter of State v. John S. , 23 N.Y.3d 326, 342, 991 N.Y.S.2d 532, 15 N.E.3d 287 (2014) ("Because an article 10 proceeding is civil in nature, the respondent is not entitled to the constitutional protections that apply to criminal proceedings under the Fifth and Sixth Amendments [citations omitted]. Rather, article 10 proceedings must comport with constitutional principles of due process"), rearguement denied , 24 N.Y.3d 933, 993 N.Y.S.2d 544, 17 N.E.3d 1141 (2014) ; Matter of State v. John P. , 20 N.Y.3d 941, 944, 958 N.Y.S.2d 667, 982 N.E.2d 587 (2012) (psychiatric examination conducted as part of the screening process was not "fundamentally an adversarial procedure, and was not one in which counsel was necessary to protect appellant against ‘the coercive power of the State and its agents’ [citation omitted]"); Matter of State v. Robert F. , 101 A.D.3d 1133, 1134-35, 958 N.Y.S.2d 156 (2d Dept. 2012) (lower court properly denied request to preclude testimony of psychologist who interviewed appellant in the absence of counsel prior to commencement of Article 10 proceeding, because right to counsel did not attach until Article 10 judicial proceeding was commenced against him).
The balancing test of Matthews v. Eldridge , supra ,
"is a flexible concept" that weighs three factors: (1) the private interest of the litigant; (2) the risk of erroneous deprivation in the absence of substitute procedures; and (3) the State's interest in avoiding additional procedures [citation omitted]. The test ensures that procedures serve the aims of the proceeding without arbitrarily depriving litigants of their rights.
Floyd Y. , 22 N.Y.3d at 105, 979 N.Y.S.2d 240, 2 N.E.3d 204. A respondent's interest in the outcome of a CRT interview is clearly significant, since the result may delay his release from DOCCS custody by triggering an Article 10 proceeding, and may ultimately result in civil confinement. As the Court of Appeals observed, "The potential for indefinite confinement threatens a liberty interest of the highest order," id. However, the procedural safeguards in the statute minimize the risk that a respondent will be erroneously deprived of his liberty as a result of the CRT interview. First, Article 10 specifically provides a right to counsel at state expense "in all judicial proceedings," Mental Hygiene Legal Service, et al. v. Spitzer, et al. , 2007 WL 4115936, *28 (S.D.N.Y. 2007), aff'd , 2009 WL 579445 (2d Cir. 2009). Once a civil management petition is filed, a respondent may petition the court, with the assistance of counsel, for his own examiner "to examine the individual and potentially rebut any distortions or inaccuracies in the report or inaccuracies in the report or testimony of the CRT-prompted or Attorney General-petitioned psychiatric examiner. MHL § 10.06(e)," 2007 WL 415936, *28. "Practically speaking, the most effective counter to an improperly-conducted psychiatric examination is not the presence of counsel, but a more professional examination by another psychiatrist," id. Finally, "experience to date indicates that the large majority of people who are ‘detained sex offenders’ as SOMTA defines the term will suffer no consequences from that designation at all," People v. Harnett , 16 N.Y.3d 200, 206, 920 N.Y.S.2d 246, 945 N.E.2d 439 (2011) (possibility of confinement under SOMTA is a collateral consequence of a plea).
According to the 2017 Annual Report on the Implementation of Mental Hygiene Law Article 10 of the New York State Office of Mental Health dated May 2018, from November 1, 2016 to October 31, 2017, only 44 of the 1673 detained sex offenders who were reviewed by OMH for possible civil management were recommended for civil management pursuant to MHL § 10.05[g] ). See Pet Aff in Opp ¶ 43; PX D p 3.
In addition, as Petitioner correctly argues (Pet Aff in Opp ¶ 33), the legislature considered but rejected the proposition Respondent advances here: although a draft of the legislation would have provided for counsel at the CRT screening, the law as it was enacted does not contain that provision. "[W]here a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded," State v. Suggs , 31 Misc. 3d 1009, 1019, 920 N.Y.S.2d 644 (Sup. Ct., New York County 2011) (Conviser, J.) (while Article 10 provides that respondent has a right to testify on his or her own behalf, it does not contain any provision which authorizes the State to call respondent as a witness; the most reasonable inference to be drawn is that the "well-established right of a criminal defendant to refuse to be called as a witness by the prosecution would apply in Article 10 trials"). The legislature clearly intended not to create a right to counsel at the pre-petition screening process, and this decision does not offend due process. Cf. People ex rel. Watson v. Commissioner, New York City Department of Correction, et al. , 149 A.D.2d 120, 124, 544 N.Y.S.2d 585 (1st Dept. 1989) ("Statements made to a parole officer are generally admissible in revocation proceedings, even where they constitute admissions regarding a crime for which the parolee has been arrested and for whom counsel has been appointed. There is no requirement that counsel be present during questioning even when the interrogation takes place in a custodial setting without provision of Miranda warnings, although the same statements are not admissible in a criminal proceeding") (all citations omitted).
Accordingly, the absence of counsel at the CRT psychiatric evaluation conducted simply to determine in the first instance whether to recommend that the Attorney General file an Article 10 petition did not violate Respondent's right to due process of law. Cf. Matter of State v. Daniel OO. , 88 A.D.3d 212, 220, 928 N.Y.S.2d 787 (3d Dept. 2011) ("The fact that some procedures used in criminal actions are appropriate [in Article 10 proceedings] ... ‘does not itself trigger the entire range of criminal procedural protections’ [citations omitted]."), app dismissed , 21 N.Y.3d 1038, 972 N.Y.S.2d 533, 995 N.E.2d 849 (2013). State v. Company , 77 A.D.3d 92, 98, 905 N.Y.S.2d 419 (4th Dept.), lv denied , 15 N.Y.3d 713, 2010 WL 4183541 (2010), on which Respondent relies, does not change this result. It is hardly surprising that Article 10 respondents are entitled to effective assistance of counsel once their right to counsel attaches in these proceedings, but this does not mean that there is a constitutional right to counsel at a CRT interview.
For all of these reasons, Respondent's motion to preclude the use of Geller's testimony at both the probable cause hearing and at trial is denied.
The Probable Cause Determination
MHL § 10.06(k) requires the Court to "determine whether there is probable cause to believe that the respondent is a sex offender requiring civil management." "The purpose of a probable cause hearing pursuant to Mental Hygiene Law article 10 is ‘simply to ensure that there is a basis for holding the respondent for trial, at which time a heightened [clear and convincing] standard of inquiry will apply,’ " Matter of State v. Anonymous , 79 A.D.3d 758, 760, 913 N.Y.S.2d 677 (2d Dept. 2010). A "finding of probable cause to believe that an article 10 sex offender requires civil management because of mental abnormality incorporates the necessary finding of respondent's dangerousness," State v. Enrique T. , 93 A.D.3d 158, 166, 937 N.Y.S.2d 203 (1st Dept.), lv dismissed , 18 N.Y.3d 976, 944 N.Y.S.2d 478, 967 N.E.2d 703 (2012), and 23 N.Y.3d 1011, 992 N.Y.S.2d 772, 16 N.E.3d 1250 (2014). Petitioner has the burden of establishing reasonable cause to believe that respondent is a sex offender requiring civil management, Matter of State v. Anonymous , 79 A.D.3d at 760, 913 N.Y.S.2d 677. This Court concludes that Petitioner met its burden of establishing probable cause to believe that Respondent is a sex offender requiring civil management because he suffers from a mental abnormality within the meaning of MHL § 10.03(i). Geller's detailed psychological portrait of Respondent established that he has a congenital or acquired condition, disease or disorder that affects his emotional, cognitive or volitional capacity in a manner that predisposes him to commit sexual offenses and results in his having serious difficultly in controlling such conduct, see MHL § 10.03(i). Geller diagnosed Respondent with ASPD, psychopathic traits, pedophilic disorder, interested in females and hypersexuality (H 22-23). While incarcerated, he exited the bathroom with his penis exposed, masturbated in front of a female corrections officer and ignored her command to stop, and possessed pornographic material (H 56, 57). Respondent has not completed sex offender treatment despite attempts to do so, and can provide no explanation for his behavior against the two children he offended against in 2014. Respondent has no relapse prevention plan, or any plan to reduce his risk of re-offense if he were released to the community. I fully credit Geller's testimony that Respondent has no internal structures to prevent him from re-offending, as she described him as a "sexual predator who specifically looks for vulnerable individuals to gratify his sexual interests" (H2 22). See State v. Claude McC. , 163 A.D.3d 686, 686-87, 81 N.Y.S.3d 133 (2d Dept.) (affirming court's finding after non-jury trial that appellant suffered from a mental abnormality, where expert testified that appellant suffered from pedophilia, antisocial personality disorder with psychopathy and cannabis dependence, respondent made no meaningful progress in treatment, and while in prison committed infraction involving threatening female staff with sadistic sexual behavior), lv denied , 32 N.Y.3d 908, 2018 WL 5259928 (2018) ; Matter of Sincere M. v. State , 156 A.D.3d 1427, 65 N.Y.S.3d 866 (4th Dept. 2017) (evidence was legally sufficient to establish that petitioner's continued confinement was required, where respondent's experts testified that petitioner suffered from pedophilic disorder, ASPD and the additional condition of psychopathy; "psychologists' opinions were based on ... petitioner's history of sex offenses, his scores on risk assessment instruments and his ‘minimal progress’ in treatment programs, including his continuing denial that he committed the underlying offenses."); Matter of State v. Bushey , 142 A.D.3d 1375, 1376, 38 N.Y.S.3d 652 (4th Dept. 2016) (petitioner met its burden of establishing by clear and convincing evidence that respondent suffered from mental abnormality and required confinement, where petitioner presented detailed psychological portrait establishing that respondent suffered from pedophilia and ASPD with psycopathic traits, refused to admit his sexual attraction to children and had no relapse prevention plan). For all of these reasons, there is reasonable cause to believe that the Respondent suffers from a mental abnormality.
This court previously signed an Order pursuant to MHL § 10.06(k) finding probable cause to believe that Respondent is a detained sex offender requiring civil management and committing him to a secure treatment facility designated by the Commissioner of the New York State Office of Mental Health (see Order attached as Exhibit A).
Conclusion
The foregoing constitutes the decision and order of this court.