Opinion
No. CA2015–001060.
07-15-2016
In the Matter of the Application for Discharge of WILLIE Y., Consec. No. 97716, from Central New York Psychiatric Center, Pursuant to MHL § 10.09, Petitioner v. The STATE of New York, The New York State Office of Mental Health, and The New York State Department of Corrections and Community Supervision, Respondents.
Mental Hygiene Legal Service, Fourth Judicial Department, Emmett J. Creahan, Director, by Lawrence R. Sheets, Esq., Staff Attorney, for the Petitioner. State of New York, Office of the Attorney General, Eric T. Schneiderman, Esq., Attorney General, by Christopher W. Schlecht, Esq., Assistant Attorney General, for the Respondents.
Mental Hygiene Legal Service, Fourth Judicial Department, Emmett J. Creahan, Director, by Lawrence R. Sheets, Esq., Staff Attorney, for the Petitioner.
State of New York, Office of the Attorney General, Eric T. Schneiderman, Esq., Attorney General, by Christopher W. Schlecht, Esq., Assistant Attorney General, for the Respondents.
LOUIS P. GIGLIOTTI, J.
In this proceeding, Willie Y. has petitioned for discharge from civil confinement at Central New York Psychiatric Center (CNYPC) after having received an annual written notice from the Commissioner of the New York State Office of Mental Health (OMH), pursuant to Mental Hygiene Law § 10.09. By Omnibus Order, the Court appointed Mental Hygiene Legal Service, Fourth Judicial Department (MHLS), to represent Willie Y., and also appointed Charles Patrick Ewing, J.D., Ph.D., to conduct an independent psychological evaluation to determine the present mental status of Willie Y.
Dr. Ewing conducted his interview with Willie Y. on September 9, 2015 and issued a written report on October 4, 2015. He concluded that Willie Y. does not have a mental abnormality, based primarily on his opinion that Willie Y. cannot be diagnosed with any disorder found in the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM–5).
Willie Y. would not submit to an interview when Kevin Burgoyne, Psy.D., of OMH, attempted to do so on April 23, 2015. In the alternative, Dr. Burgoyne reviewed available records and issued his written report on May 18, 2015. He opined that Willie Y. meets the criteria for the following DSM–5 diagnoses: Other Specified Paraphilic Disorder (non-consent) (hereinafter OSPD (non-consent)); and Antisocial Personality Disorder (ASPD). Dr. Burgoyne also assigned the condition of psychopathy.
At the hearing conducted on March 25, 2016, Dr. Burgoyne and Dr. Ewing testified. The Court has read and reviewed their written reports and the various other exhibits received into evidence. Written summations were requested by the Court and timely received from counsel for both sides.
ANALYSIS
The mechanism and procedure by which New York state civilly confines and supervises sex offenders is found in article 10 of the Mental Hygiene Law. The first section within that article sets forth various findings that formed the basis for the legislature's decision to enact this statute. Two goals are readily apparent: (1) “to protect the public”; and (2) “to provide meaningful treatment” to sex offenders. (MHL § 10.01(a) ). MHL article 10 “is not a penal statute, but rather one with a remedial purpose.” (Matter of State of New York v. Floyd Y., 22 NY3d 95, 104 [2013] ). The Court of Appeals recently observed that civil commitment is “to serve the aims of providing the necessary treatment to sex offenders while concomitantly protecting the public from potential sexual assaults.” (Matter of State of New York v. Dennis K., –––NE3d ––––, 2016 N.Y. Slip Op 05330 [2016] ).
Against this backdrop, the Court evaluates whether Willie Y. suffers from a “mental abnormality” as that term is defined in Mental Health Law § 10.03(i), and if so, whether he is a “dangerous sex offender requiring confinement,” as that term is defined in Mental Health Law § 10.03(e). Although Willie Y. filed the petition for discharge, the State bears the burden to show by “clear and convincing evidence” that Willie Y. fits within these definitions. (See Matter of Skinner v. State of New York, 108 AD3d 1134, 1135 [4th Dept 2013] [employing clear and convincing standard on an application for discharge under Mental Hygiene Law § 10.09 ]; see also Matter of State of New York v. Donald DD., 24 NY3d 174, 187 [2014] [referencing clear and convincing standard] ). This standard of proof is not as stringent as the “beyond a reasonable doubt” standard used in criminal cases, but is more strict than the “preponderance of the evidence” standard used typically in civil cases. (See Matter of Darius B. (Theresa B.), 90 AD3d 1510, 1510 [4th Dept 2011] ; see generally Matter of State of New York v. Farnsworth, 75 AD3d 14 [4th Dept 2010], appeal dismissed, 15 NY3d 848 [2010] [discussing constitutionality of “clear and convincing” evidence standard to Mental Hygiene Law article 10 proceedings] ). Clear and convincing evidence “is neither equivocal nor open to opposing presumptions.” (Darius B., 90 AD3d at 1510 [internal quotation marks and citation omitted] ).
I. Mental Abnormality
Mental Hygiene Law § 10.03(i) defines “mental abnormality” as “a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct.” In this case, the two expert witnesses completely disagree as to whether Willie Y. suffers from a mental abnormality, which means the Court must decide which expert testimony to credit. Since Willie Y.'s behavior is what ultimately forms the basis for the experts' conclusions, analysis starts with his history of known sex offenses.
In February 1992, when he was 38 years old, Willie Y. was arrested and charged with attempted rape 1st as the result of an attack on his mother, who was 60 years old at the time. The following recitation of events is based upon his mother's victim statement taken by the police four days after the incident. She said Willie Y. attacked her while she was sleeping. He got on top of her, pulled her pants down and said, “I been wanting you for a long time and now I got you.” He had intercourse with her and upon completion said, “Bitch if you tell anybody I kill you.” She escaped after he fell asleep by climbing out the bathroom window and asking for help from a man she saw on the street. The man called the police from his house, who came and arrested Willie Y. (See respondent's exhibit B, at 4–5). A medical evidence report taken the same day as the offense showed sperm was found in her vagina. (See id., at 5). Dr. Ewing noted that Willie Y.'s mother later asked to have the charges dropped (see petitioner's exhibit 2, at 2), but Willie Y. eventually pled guilty to sexual abuse 1st, telling the criminal court that he had consumed alcohol and touched his mother's vagina for purposes of his own sexual gratification. (See petitioner's exhibit 2, at 2–3; respondent's exhibit B, at 5). Willie Y. completed his prison sentence after violating parole.
Five months following his release from prison, when he was 42 years old, Willie Y. committed the instant offense that led to his article 10 confinement. He was convicted by a jury of rape 1st (two counts), sodomy 1st, sexual abuse 3rd, assault 2nd, assault 3rd, criminal possession of a weapon 3rd, endangering the welfare of a child, harassment 2nd, criminal contempt 1st and criminal contempt 2nd. (See People v. Yeldon, 251 A.D.2d 1047, 1047 [4th Dept 1998], lv to appeal denied, 92 N.Y.2d 908 [1998] ). The victim was Willie Y.'s former girlfriend, despite the fact that she had obtained an order of protection against him, and the offenses occurred on three separate occasions over approximately six weeks. (See id.; respondent's exhibit B, at 5). During the first incident, Willie Y. entered the victim's kitchen uninvited, grabbed her crotch, hit and choked her, and cut her arm. (See respondent's exhibit B, at 6). The cut left a scar visible at trial. (See Yeldon, 251 A.D.2d at 1047 ). After Willie Y. pulled the telephone out of the wall, the victim ran to a neighboring house to call the police. (See respondent's exhibit B, at 6). During the second incident, which occurred three days later, Willie Y. broke into the victim's home and attacked her in the bathroom. (See id. ). He hit her, took off her clothes and raped her. (See id. ). During the third incident, Willie Y. physically assaulted the victim and her son, leaving another scar on the victim that was visible at trial. (See id.; Yeldon, 251 A.D.2d at 1047 ).
Dr. Burgoyne's written report references other incidents of a sexual nature. Of those incidents, some were reported by a former girlfriend after Willie Y. entered civil confinement, for which no charges have been filed. The Court will not consider these allegations, because no independent corroboration of their details has been presented. (See Matter of State of New York v. Floyd Y., 22 NY3d 95, 110 [2013] [holding that “uncharged accusations should have been excluded” from an article 10 proceeding] ).
When the March 25, 2016 hearing opened, counsel for Willie Y. made a motion pursuant to the Court of Appeals decision in Floyd Y . to preclude all evidence and testimony related to uncharged offenses and offenses for which no conviction was obtained. The Court denied the motion because Dr. Burgoyne's report had already been received into evidence on consent of both parties. In accordance with the presumption afforded by the Fourth Department when courts serve as factfinders in article 10 proceedings, this Court acknowledged it would assign appropriate weight to the evidence after the attorneys had a chance to examine and cross-examine Dr. Burgoyne. (See, e.g., Brooks v. State, 120 AD3d 1577, 1578 [4th Dept 2014] [article 10 annual review]; State v. Armstrong, 119 AD3d 1431, 1432 [4th Dept 2014] ; State v. Bass, 119 AD3d 1356 [4th Dept 2014] [noting that in a nonjury trial, the court is “presumed to be able to distinguish between admissible evidence and inadmissible evidence [and to abide by the limited purpose of hearsay evidence when admitted] and to render a determination based on the former”] [internal quotation marks and citation omitted] ).
Two separate incidents leading to arrests and charges are also cited within Dr. Burgoyne's report. The first was an arrest and charge of rape 1st, but the charge was dismissed. Dr. Burgoyne acknowledges the circumstances surrounding this incident are unknown to him. He relied solely on a 2014 forensic psychiatric examination report, in which Willie Y. denied any wrongdoing and claimed to have been framed for the incident. (See respondent's exhibit B, at 3–4).
The second incident led to an arrest for sodomy, sexual abuse 1st, assault 3rd, unlawful imprisonment 2nd, and harassment. The details are set forth in Dr. Burgoyne's report. (See respondent's exhibit B, at 4). According to this victim in a statement given to police, Willie Y. approached her on the street and asked to walk her home. He said he first wanted to go home to change his shoes, so the victim went in the house with him. When she turned to leave, Willie Y. locked the door and told her she was not going anywhere until she “f* * * * * “ him. The victim said Willie Y. then began to hit her in the face, picked up a screwdriver and said he would kill her. Fighting and struggling ensued, during which the victim said Willie Y. told her to take off her clothes or he would kill her. She took off her clothes, she fought him when he got onto the bed with her, and she pushed him against a window, which broke. She claims he again threatened to kill her, following which she grabbed her clothes and ran to the bathroom. She stated that Willie Y. dragged her out of the bathroom as she was trying to escape through a window, and events repeated themselves in that he ordered her to take off her clothes, she took them off, she fought his advances and pushed him into the same window. At this point, she said she ran back to the bathroom, grabbed a towel and headed for the front door, which was open with Willie Y. standing naked next to it. She ran out of the house. Willie Y. was arrested in connection with this incident one week before attacking his mother, although the charges were later dropped when the victim failed to show for grand jury.
Floyd Y. instructs that “[c]riminal charges that resulted in neither acquittal nor conviction require close scrutiny” before being considered by a factfinder in an article 10 proceeding. (22 NY3d at 110 ). Key issues are whether the details of such charges have been independently corroborated and whether the evidence is more probative than prejudicial. (See id. ). The purpose in admitting the above-described hearsay evidence would be to evaluate the basis for Dr. Burgoyne's opinion that Willie Y. suffers from a mental abnormality and not for the truth of the matter, which is a permissible use. (See id. at 107 [“[I]n many cases, including article 10 trials, the admission of the hearsay basis is crucial for [factfinders] to understand and evaluate an expert's opinion.”] ).
Based upon these guiding principles, the Court will not consider the offense that led to an arrest and charge, but which was dismissed and for which Dr. Burgoyne had no independent evidence. As for the other arrest and accompanying charges, which were dismissed when the witness failed to show before the grand jury, the Court will consider this evidence for the purpose of evaluating the strength of Dr. Burgoyne's diagnoses. In finding indicia of reliability, the Court notes that Dr. Burgoyne's report cites a presentence investigation report and the police department victim statement prepared in connection with the charges. The victim statement is also dated the same day as the alleged incident, and the events described therein bear striking similarities to the two subsequent offenses for which he was convicted. Furthermore, one week after his arrest on these charges and before the charges were dismissed, Willie Y. sexually assaulted his mother. His guilty plea to that offense indicates his capability of engaging in sexual misconduct. (See Matter of State of New York v. Dean G., ––– NYS3d ––––, 2016 N.Y. Slip Op 04723, *1 [2d Dept 2016] [“[T]he Supreme Court did not err in refusing to preclude hearsay basis evidence regarding a prior charged sex offense which did not result in an acquittal or conviction.”]; Matter of State of New York v. Carl S., 125 AD3d 670, 671 [2d Dept 2015], lv to appeal denied, 25 NY3d 912 [2015] [same] ).
Having recited those offenses considered relevant to these proceedings, the Court examines Willie Y.'s conduct thereafter. Upon consenting to having a mental abnormality after a probable cause hearing conducted pursuant to MHL § 10.06, Willie Y. was released from custody and made subject to a regimen of strict and intensive supervision and treatment (SIST) pursuant to MHL § 10.11. Two months after his release, a SIST incident report was filed, claiming Willie Y. had consumed alcohol, violated curfew and had poor participation in sex offender treatment. Following a hearing on these violations, Willie Y. was court-ordered to enter civil confinement, where he has remained for the past seven years.
Both while incarcerated and confined, Willie Y. has not acknowledged his participation in any sex offense. (See petitioner's exhibit 2, at 3). He was promoted to Phase II of treatment in December 2011with the hope it would motivate him to work harder, but the anticipated results have not followed. (See respondent's exhibit B, at 8). Within the past year, he has failed to attend and/or participate in a meaningful way in numerous classes at CNYPC. (See respondent's exhibits C, D, E, I, J, M, N, O, P, R, S). During his individual service plan review in December 2015, he walked out before staff could finish the meeting. (See respondent's exhibit L). Within the plan, Willie Y. is noted to have said he will not participate in group sessions because he sees no value in doing so. (See id. ).
As far as behavior is concerned, the evidence shows Willie Y. has become less aggressive in confinement, but anger issues still arise. For example, in October 2015, he was asked to leave one class within 15 minutes of it starting, because he was disruptive, argumentative and threatening. (See respondent's exhibit J). As he left the group, he continued making threats toward other group members. (See id. ). In November 2015, he disagreed with nursing staff over the distribution of medication because he refused to identify himself according to procedure, stating that he will do what he wants to do. (See respondent's exhibit K). Even when reminded that the community-at-large has expectations and rules to follow, Willie Y. became argumentative. (See id. ). Willie Y. again expressed his distrust of rules and authority figures when in one group session he told the facilitators, “No such thing as rules—somebody's gotta make them and who is that? We ain't got nobody governing us. We govern ourselves.” (respondent's exhibit R). Dr. Burgoyne's written report further identifies incidents since Willie Y.'s last annual review that involved Willie Y. hitting another resident, threatening a staff member, threatening another resident and being rude and disrespectful to staff. (See respondent's exhibit B, at 13–14).
From the totality of the evidence before him, Dr. Burgoyne explained at the hearing the basis for each of his diagnoses for Willie Y. With respect to ASPD, he relied upon the following: (1) history of violating the rights of others; (2) history of violating social norms; (3) lying to others for personal pleasure; (4) history of assaultive behavior while on parole and while in civil confinement; (5) failure to admit to behavior or show remorse; and (6) failure to provide support for his children. One of the elements of ASPD is “evidence of Conduct Disorder with onset before age 15 years.” (petitioner's exhibit 2, at 4). While he did not address this factor in his written report, Dr. Burgoyne testified that within the records he reviewed, he noted Willie Y. had admitted to stealing alcohol from his stepfather at age 9 and taking a car for a “joy ride” without the consent of the owner when he was a teenager. Dr. Burgoyne admitted this time in Willie Y.'s life is hard to evaluate because access to the information is dependent upon self-reporting, but explained that the chronic nature of Willie Y.'s offending over time makes it hard to overlook the admissions he did know about.
Dr. Ewing testified that Willie Y. does not meet the criteria for ASPD because of an absence of a Conduct Disorder with onset before age 15. In his written report, he criticized the OMH examiner who diagnosed Willie Y. with ASPD at the time of his probable cause hearing years ago. The Court finds this evidence insufficient to call into question the diagnosis of ASPD currently assigned by Dr. Burgoyne, and thus credits Dr. Burgoyne's testimony in this regard. That being said, article 10 civil commitment cannot be based solely on a diagnosis of ASPD when it is combined only with evidence of the underlying sex crimes. (Donald DD., 24 NY3d at 189 ). The Court therefore turns to the other diagnoses made by Dr. Burgoyne to determine whether they support a finding of mental abnormality.
Dr. Burgoyne assigned the condition of psychopathy to Willie Y. based upon scores derived from the Hare Psychopathy Checklist—Revised 2d Edition (PCL–R) and the fact that Willie Y. is assigned to a treatment program at CNYPC designed for people with psychopathy. He explained at the hearing that psychopathy overlaps to a degree with ASPD, but is different in that it can be quantified through PCL–R scoring and is less common. Dr. Burgoyne testified that when psychopathy is combined with sexual deviance, the risk for reoffense increases. As evidence of sexual deviance, Dr. Burgoyne pointed to Willie Y.'s lifestyle at the time he committed his offenses, the threats of violence made during the commission of each offense, the likelihood that Willie Y. has deviant sexual preferences as shown by his efforts to force sex upon his victims, the fact that Willie Y. had different victims in each offense, his proceeding with the offenses despite victim pleas to stop, and the close proximity between his arrest and subsequent offense against his mother, as well as the close proximity between his release from prison and his arrest for the instant offense. Dr. Ewing's written report is silent on this issue, although at the hearing he testified that he disagreed with assigning Willie Y. the condition of psychopathy because it is not included in the DSM–5.
The Court of Appeals has held that a diagnosis need not be limited to disorders identified in the DSM to meet the statutory requirement of a mental abnormality. (See Dennis K., 2016 N.Y. Slip Op 05330 ). Furthermore, a “condition, disease or disorder” is not, by itself, required to be a sexual disorder. (See id. ). The issue is whether the “condition, disease or disorder” predisposes the individual to conduct constituting the commission of sex offenses. (See id. ). Although Donald DD. did reverse civil confinement where the respondent was diagnosed with only ASPD with psychopathy, disagreement has ensued among trial courts regarding how to interpret this decision relative to psychopathy. Donald DD. does not directly address whether or how the condition of psychopathy may have affected the Court's reasoning. When describing the testimony of the State's experts relative to their diagnosis of ASPD, the Court of Appeals explained in a footnote that “both experts opined that Donald DD. suffered from an extreme form of ASPD known as psychopathy. However, they did not testify that this finding materially affected their conclusions regarding Donald DD.'s mental abnormality under article 10.” (Donald DD., 24 NY3d at 183 n. 3 ). The First Department recently upheld a finding of probable cause for mental abnormality where the respondent was diagnosed only with ASPD with psychopathy, concluding the factfinder should decide how much weight to afford the expert's testimony. (See Matter of State of New York v. Jerome A., 137 AD3d 557, 558 [1st Dept 2016] [“Although the factfinder at trial may or may not accept the expert's opinion, the expert's testimony at the hearing was not so deficient as to warrant dismissal of the petition at this early juncture, especially since the expert offered extensive testimony regarding the distinctions between ASPD and psychopathy, and since the Court of Appeals in Donald DD. did not state that a diagnosis of ASPD with psychopathy is insufficient to support a finding of mental abnormality.”] ). This Court therefore finds it has the discretion to consider the viability of assigning psychopathy to Willie Y. and any resulting impact upon predisposition.
In Willie Y.'s case, and unlike in Donald DD., Dr. Burgoyne testified specifically about psychopathy and identified the condition as part of the totality of the evidence upon which he relied to conclude Willie Y. suffers from a mental abnormality. In contrast, Dr. Ewing did not address the condition and did little to undermine its relevance to these proceedings. One reason may be the fact that Dr. Ewing did not review Dr. Burgoyne's written report prior to issuing his own. Why he did not have the report is unclear, since Dr. Burgoyne's report was filed with the Oneida County Clerk's Office more than three months before Dr. Ewing interviewed Willie Y. and more than four months before Dr. Ewing issued his written report. Nevertheless, the Court finds the State submitted sufficient proof on this issue.
With respect to OSPD (non-consent), the criteria for paraphilia are “recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving (1) nonhuman objects, (2) the suffering or humiliation of oneself or one's partner, or (3) children or other nonconsenting persons that occur over a period of at least 6 months' that cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.' “ (petitioner's exhibit 2, at 6). Dr. Burgoyne testified that he assigned this diagnosis because Willie Y.'s sexual offenses each involved women crying and pleading with him to stop, as well as use of weapons and threats to kill. Dr. Burgoyne further found it significant that Willie Y. attacked women (his mother, his former girlfriend) who were known to him. Dr. Ewing criticizes both the assignment of the paraphilic disorder and its reliability as the basis for a finding of mental abnormality.
Regarding assignment of OSPD (non-consent), Dr. Ewing writes in his report that “it appears that the victims of these offenses were selected largely as a matter of availability and convenience and that their consent or lack thereof was of no consequence, motivation or satisfaction to [Willie Y.].” (petitioner's exhibit 2, at 7). He draws this conclusion both assuming Willie Y. committed the offenses for which he was convicted and yet calling into question the viability of these convictions. The Court's impression of Dr. Ewing's evaluation is that it is impacted by his doubts about whether Willie Y. actually committed any sex offense. Dr. Ewing testified and noted in his report that Willie Y. was not convicted of raping his mother, that she asked to have the charge dropped, and that Willie Y. flatly denies this offense. At the hearing, Dr. Ewing testified that after reviewing the trial transcript for the instant offense, he did not see how the weight of the evidence led to a conviction.
Neither Dr. Ewing nor Willie Y. points to any authority permitting the Court to re-examine the legitimacy of the convictions for underlying sex offenses. All the Court knows with certainty is what Willie Y.'s mother told the police four days after the incident, as memorialized in the police report, the fact that semen was found in her vagina on the day of the incident, and that Willie Y. pled guilty to sexually abusing his mother upon telling the criminal court that he had sexual contact with his mother for his own pleasure. Why his mother tried to drop the charge would involve inappropriate speculation on the part of the Court because several plausible scenarios present themselves, with no proof that any of them is accurate (e.g., the event never happened; his mother was afraid of him; she was embarrassed by the event). Likewise, the Fourth Department affirmed Willie Y.'s conviction of rape, sodomy and sexual abuse in the instant offense because the jury was in the best position to evaluate conflicting testimony. (See Yeldon, 251 A.D.2d at 1047 ).
Dr. Ewing's report also overlooks the inconsistencies between Willie Y.'s perspective on his behavior and objective fact. Beyond simply denying the commission of sexual offenses, Willie Y. apparently denies the existence of criminal proceedings that resulted therefrom. As recently as October 2015, he reported in group that “his Instant Offense was rape but that all of his charges were dismissed.” (respondent's exhibit H). In 2014, during his annual review process, Willie Y. denied to the independent psychiatric examiner that he had ever been arrested or charged in connection with the 1992 offenses that were ultimately dismissed. (See respondent's exhibit B, at 4). He further told the independent examiner that he could not have raped his mother because he was not there when the offense occurred. (See id. at 5). Quoted within Dr. Burgoyne's report is this observation by the independent examiner:
[Willie Y.'s] account was dramatically different from his history as it is depicted in his records ... the nature [and] scope of the discrepancies in [Willie Y.'s] case strongly suggested that he was not accurately reporting many important aspects of his history. Moreover, the nature of these discrepancies were such that they strongly suggested that [Willie Y.] was engaging in a conscious attempt to offer implausible and inaccurate accounts of his history in order to displace responsibility for negative events away from himself.
(Id. at 11). While Dr. Ewing criticized the conclusions of various OMH examiners, neither his report nor his testimony addressed why the conclusions of the independent examiner in 2014 were so different from his own. For all of these reasons, the Court credits Dr. Burgoyne's diagnosis of OSPD (non-consent).
That being said, whether OSPD (non-consent) can sustain a finding of mental abnormality has been the subject of many recent court opinions. In particular, the Donald DD. majority characterized paraphilia NOS2as “a controversial diagnosis.” (24 NY3d at 186 ). At the same time however, the Court did not decide whether this particular diagnosis has received general acceptance in the scientific community because no Frye hearing was requested or held in that particular case. (See id. at 187 ; see also Dennis K., 2016 N.Y. Slip Op 05330 ). The Donald DD. majority and Dennis K. have both expressly held intact the Court's earlier decision in Shannon S. For purposes of this case, Shannon S. is significant because it identified cases where paraphilia NOS was “a viable predicate mental disorder or defect that comports with minimal due process,” and it left to future factfinders the discretion to rely upon the adversarial process of the courtroom to determine whether paraphilia NOS provided a sufficient basis for a finding of mental abnormality. (Shannon S., 20 NY3d at 106–07 ). The Dennis K. Court highlighted that language in Shannon S. stating paraphilia NOS was “potentially relevant” to a finding of predisposition. (See 2016 N.Y. Slip Op 05330 ).
In the wake of Donald DD., sister courts have been asked to decide Frye motions pertaining to OSPD (non-consent). Two have issued their decisions, finding OSPD (non-consent) is not generally accepted within the relevant scientific community. (See Matter of State of New York v. Jason C., 51 Misc.3d 553 [Sup Ct, Kings County 2016] ; Matter of State of New York v. Kareem M., 51 Misc.3d 1205[A], 2016 N.Y. Slip Op 50427[U] [Sup Ct, N.Y. County 2016] ). This Court recently granted a Frye hearing relative to OSPD (non-consent) in an unrelated case. (See Matter of Philip Q. v. State of New York, Sup Ct, Oneida County, June 21, 2016, Gigliotti, J., Index No. CA2015–001716). In the instant case however, no motion was made either for a Frye hearing or to preclude evidence relative to the diagnosis of OSPD (non-consent). According to counsel for Willie Y., the decision not to request a Frye hearing was deliberate. (See written summation of petitioner's counsel, at 11 [“Willie Y. did not request a Frye hearing, opting instead to challenge the experts on the reliability of the OSPD-nonconsent diagnosis. MHLS has traditionally followed this approach rather than utilize expensive and time consuming Frye hearings to preclude the evidence.”] ). Nor is counsel for Willie Y. suggesting this Court should use Jason C. or Kareem M. as a basis for excluding testimony about the OSPD (non-consent) diagnosis. (See id., at 11–12). Counsel for Willie Y. acknowledges he had a full and fair opportunity to elicit testimony on direct and cross examination from each expert about the viability of such a diagnosis in general and in particular to Willie Y. (Id. at 11–12). As such, this Court has been asked as the factfinder to consider all the evidence presented at the hearing and, as instructed by the Shannon S. decision, evaluate to what degree Dr. Burgoyne's analysis supports a finding of mental abnormality. (See generally State v. Luis S., 135 AD3d 945, 945 [2d Dept 2016] [“The question of whether the subject diagnosis constituted a reliable predicate for a finding of mental abnormality presented a factual issue to be resolved by the [factfinder].”).
As testified to at the hearing, Dr. Burgoyne diagnosed OSPD (non-consent) after reviewing the records and finding Willie Y. has an intense and recurring interest for non-consensual sex. On cross-examination, Dr. Burgoyne answered many questions about the differing criteria experts use to diagnose OSPD (non-consent), ways to distinguish paraphilic rapes from non-paraphilic rapes, and the impact of non-consent on a person's sexual arousal. His responses included specific references to Willie Y.'s circumstances and how his behavior supported the diagnosis. While Dr. Ewing expressed doubts, the Court credits Dr. Burgoyne's testimony in assigning same. His diagnosis is not conclusory, but rather given in context of the totality of the evidence. Since OSPD (non-consent) is a “viable predicate” for a finding of mental abnormality (see Dennis K., 2016 N.Y. Slip Op 05330 ; Shannon S., 20 NY3d at 107 ), and “potentially relevant” to a finding of predisposition (see Dennis K., 2016 N.Y. Slip Op 05330 ; Donald DD., 24 NY3d at 191 ), the Court will consider the diagnosis in this case.
Taken in combination, the diagnoses of ASPD and OSPD (non-consent), along with the condition of psychopathy, as well as Dr. Burgoyne's testimony as to his basis for assigning same, differentiate Willie Y. from Donald DD. (See Dennis K., 2016 N.Y. Slip Op 05330 ). With Willie Y. having failed to undermine the credibility of the State's evidence, the Court finds the predisposition element of the definition of mental abnormality has been satisfied in this case. (See, e.g., Matter of State of New York v. Charada T., 23 NY3d 355 [2014] [upholding jury verdict finding mental abnormality, where respondent was diagnosed with paraphilia NOS, personality disorder with antisocial traits, and alcohol abuse]; Matter of Patrick L., 31 NYS3d 845, 2016 N.Y. Slip Op 26165 [Sup Ct, St. Lawrence County 2016] [finding mental abnormality in an annual review proceeding, where the state expert diagnosed petitioner with OSPD (non-consent), ASPD and cannabis use disorder, in a controlled environment] ).
Other evidence presented by the State at the hearing further establishes Willie Y. has serious difficulty in controlling conduct constituting a sex offense. (See Donald DD., 24 NY3d at 187 ; see also Matter of State of New York v. Frank P., 126 AD3d 150, 162 [1st Dept 2015] [“[A] finding that respondent had serious difficulty controlling his sexual conduct must be made independent of the threshold determination that the respondent suffers from a mental abnormality within the meaning of the statute.”] ). Evidence submitted relative to diagnoses alone is, by itself, insufficient to meet the burden of proof with regard to serious difficulty controlling conduct. (See Matter of Wright v. State of New York, 134 AD3d 1483, 1485 [4th Dept 2015] ). The Court of Appeals has also clarified the evidentiary standard is not met if the State shows only that an individual committed sex offenses without effort to avoid arrest and re-incarceration. (See Donald DD., 24 NY3d at 188 ). A “detailed psychological portrait” is considered helpful in showing what degree of control is maintained by an individual over his actions. (See id. ).
One thing upon which both Dr. Burgoyne and Dr. Ewing agreed was the fact that Willie Y. is not actively engaged in treatment at CNYPC. Dr. Ewing attributes this lack of engagement and progress to Willie Y. insisting that he is innocent of any sex offense. (See petitioner's exhibit 2, at 9). Dr. Ewing testified that CNYPC offers a “one size fits all” sex offender treatment program, which will never work for Willie Y. because its success is dependent upon admission of sexual offenses. (See also id. at 10 [“Given that he absolutely will not admit to the alleged offenses, he cannot be treated at CNYPC unless an individual treatment program is designed for him that does not require him to admit to crimes he says he did not commit.”] ).
Dr. Burgoyne however, when asked on cross-examination whether treatment programs at CNYPC can be individualized, answered in the affirmative. He also stated that residents are not required to admit their offenses as part of treatment. Dr. Burgoyne's testimony is supported by testimony given at Willie Y.'s last annual review, when the OMH expert “acknowledged that even though an individual denies his sex offenses, if he is willing to address his areas of risk, the treatment team will work with him to teach him to identify and manage his risk factors.” (Matter of Willie Y. v. State of New York, Sup Ct, Oneida County, May 21, 2014, Gigliotti, J., Index No. CA2013–001817). In June 2014, Willie Y. acknowledged his criminogenic needs are “anger, violence, and emotional abuse towards people.” (respondent's exhibit L, at 1). Yet Willie Y. has not taken advantage of opportunities afforded to help himself. Recently, on several separate occasions, the CNYPC treatment team offered to meet with Willie Y. and discuss obstacles he may perceive as interfering with his engagement in the treatment process. (See respondent's exhibits F, G, Q). To the Court's knowledge, Willie Y. never followed through on these offers.
As noted at the outset of this Decision, treatment is a primary goal of MHL article 10. Repeated reference is made to treatment in the legislative findings. (See MHL § 10.01(b) [referencing sex offenders with mental abnormalities who “may require long-term specialized treatment modalities,” who should receive such treatment both during and after incarceration, and in extreme cases, who may require extended civil confinement for purposes of providing such treatment]; MHL § 10.01(c) [“The goal of a comprehensive system should be to protect the public, reduce recidivism, and ensure offenders have access to proper treatment.”]; MHL § 10.01(e) [“That the system for responding to recidivistic sex offenders with civil measures must be designed for treatment and protection.”]; MHL § 10.01(f) [“That the system should offer meaningful forms of treatment to sex offenders in all criminal and civil phases....”] ). The Court of Appeals and the four Appellate Divisions assign weight to how well an individual participates in and responds to sex offender treatment. (See, e.g., Matter of State of New York v. Robert F., 25 NY3d 448 [2015] ; Matter of State of New York v. Williams, 139 AD3d 1375, 31 NYS3d 362, 365 [4th Dept 2016] ; Floyd Y., 135 AD3d at 77 [1st Dept]; Matter of State of New York v. Richard TT., 132 AD3d 72, 78 [3d Dept 2015], aff'd Matter of State of New York v. Dennis K., 2016 N.Y. Slip Op 05330 ; Matter of Sincere KK. v. State of New York, 129 AD3d 1254, 1255 [3d Dept 2015], lv denied, 26 NY3d 906 [2015] ) Matter of State of New York v. Derrick B. (Anonymous), 68 AD3d 1124, 1127 [2d Dept 2009] ).
Willie Y. is civilly confined to CNYPC based upon prior rulings that he is a dangerous sex offender requiring confinement, which encompasses by definition an individual with a mental abnormality. As explained by Dr. Burgoyne at the hearing, when a person is deemed dangerous and then refuses to make any meaningful attempt to participate in or benefit from treatment, it is difficult to conclude the person has corrected the tendencies that led to offending in the first place. Willie Y. has not only shown little effort or interest in understanding his behavior for purposes of making effective change, but also has disowned any responsibility over his future. (See petitioner's exhibit 2, at 2 [observing that Willie Y. “seems to have finally accepted that his fate is out of his hands and that he may remain incarcerated for the rest of his life”] ). In sum, Willie Y. fails to recognize the remedial intent of article 10, to participate in designing or responding to an effective treatment program, or even to recognize his role in what happens to him going forward. Each of these elements points to serious difficulty in controlling conduct leading to sex offenses.
His failure to participate in treatment also means he has not developed a viable relapse prevention plan. The Court is left to guess at what Willie Y. would do if faced with a situation in the community that could trigger his offense cycle. Although Dr. Ewing's report states Willie Y. “has a close and supportive family, with whom he maintains a strong emotional bond” (petitioner's exhibit 2, at 7), no details of these relationships are provided other than Willie Y.'s comment to Dr. Ewing that “I've got my kids back in my life” (Id. at 2). No records from CNYPC were produced by either side to suggest Willie Y.'s family is engaged with him in any way. The Court does not know where Willie Y.'s family members live or to what extent they would be of help to him. Moreover, a singular reliance on outside influences to avoid reoffending suggests lack of control.
Willie Y. argues that the absence of sexually offensive behavior on his part while incarcerated and civilly confined suggests an element of control. This Court is cognizant of the decision in Frank P., where the First Department assigned weight to the absence of sexual misconduct during a 33–year incarceration. (See 126 AD3d at 155 ). This Court itself has given credit to CNYPC residents who evidence good behavior while in state custody. (See Matter of Thomas B. v. State of New York, Sup Ct, Oneida County, May 16, 2016, Gigliotti, J., Index No. CA2015–001252; Matter of Myron W., Sup Ct, Oneida County, March 1, 2016, Gigliotti, J., Index No. CA2014–001272). Yet these cases were fact-specific in their analysis, which did not rely solely on the absence of sexual misconduct following incarceration and/or confinement. For example, in Frank P., Thomas B. and Myron W., the individual offenders had engaged and succeeded in treatment. The expert witnesses in Frank P. failed to quantify their diagnoses. In Thomas B. and Myron W., the individual offenders showed an interest in remaining involved in treatment in the community, were aware of their risk factors, and had plausible responses to situations that could trigger reoffending behaviors. A review of the totality of circumstances led to the conclusions in these cases that the individuals did not have serious difficulty in controlling their offending behavior.
In contrast, Willie Y.'s avoidance of sexual misconduct while in state custody provides no similar reassurances. He has consistently demonstrated anger and frustration, which emotional states were present during his sexual offenses. His offenses were against women with whom he had a relationship. This victim pool however, has not been available to him while incarcerated and confined. The timing of his offenses is suggestive of serious difficulty in controlling conduct when not in custody, in that he committed the offense against his mother while criminal charges were pending from the arrest the week before, he committed the instant offense notwithstanding the order of protection in place, and he violated SIST within a short time of his release. (See State of New York v. Avon L., Sup Ct, Dutchess County, Jan. 8, 2016, Forman, J., Index No. 6698/13 [“[T]he fact that Respondent has shown a consistent ability to avoid serious disciplinary problems while in prison, while immediately reverting to his violent sex-offending conduct upon his release from prison, supports a determination that Respondent does not suffer from a general tendency toward criminality,' but rather that he has serious difficulty in controlling his sex-offending behavior upon his release from the restrictions of confinement.”] ).
As further evidence of serious difficulty, Dr. Burgoyne recites incidents where Willie Y. expressed his disregard for rules and his feeling that he can act however he likes. (See respondent's exhibit B, at 12–13). He relies upon Willie Y.'s lack of empathy for his victims, his belief that he can force sexual activity, his lack of remorse and his repeated offensive behavior as proof of serious difficulty. (See id., at 18). Notes from CNYPC within the last year confirm the current nature of Willie Y.'s attitude that he has little, if any, respect for rules he does not like. (See respondent's exhibits K, R).
Considering the diagnoses by Dr. Burgoyne, the history of Willie Y.'s behavior both in the community and in custody, and his lack of meaningful participation in treatment, the Court finds the State has shown by clear and convincing evidence that Willie Y. presents a “psychological portrait” of an individual with serious difficulty controlling conduct constituting a sex offense. When combined with the proof of predisposition, the Court finds Willie Y. suffers from a mental abnormality.
II. Dangerous Sex Offender Requiring Confinement
In light of this finding regarding mental abnormality, the Court must now determine whether Willie Y. is a “dangerous sex offender requiring confinement.” This term is defined by statute as “a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.” Mental Hygiene Law § 10.03(e). The focal point of this inquiry whether the State has shown by clear and convincing evidence that Willie Y. has an “inability to control” conduct constituting a sex offense.
Much has been written within the last year or so by courts about how to interpret and apply the phrase “inability to control” as it is used in Mental Hygiene Law § 10.03(e). In Matter of State of New York v. Michael M., 24 NY3d 649, 659 (2014), the New York Court of Appeals highlighted the “distinction between sex offenders who have difficulty controlling their sexual conduct and those who are unable to control it.” The Court held “[t]he former are to be supervised and treated as outpatients' and only the latter may be confined.” Id. In Donald DD., the Court of Appeals further held that “sufficient evidence of a serious difficulty controlling sex-offending conduct ... cannot consist of such meager material as that a sex offender did not make efforts to avoid arrest and re-incarceration.” (24 NY3d at 188 ). Subsequent application of these principals by both the Court of Appeals and the Appellate Divisions shows that an order of confinement will be upheld where the trial court has carefully considered the totality of the evidence. (See, e.g., Robert F., 25 NY3d at 454–55 [upholding confinement based upon the State's overwhelming evidence]; Floyd Y ., 135 AD3d 70, 75–77; Richard TT., 132 AD3d at 77–78 [3d Dept.2015] ; Sincere KK., 129 AD3d at 1255 ; Matter of State of New York v. Parrott, 125 AD3d 1438, 1439 [4th Dept.2015], lv denied by Matter of State of New York v. James P., 25 NY3d 911 [2015] ).
In sum, and intending to incorporate by reference the evidence cited earlier in this decision, the Court credits the following proof in support of its conclusion that Willie Y. has been shown to have such a strong predisposition to commit sex offenses and such an inability to control his behavior, that he is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility:
1. Repeated offenses against women he knew, whose accounts of how Willie Y. acted are strikingly similar;
2. Timing of his offenses, relative to each other and relative to his release from incarceration;
3. Refusal to admit his participation in any of his offenses, while at times denying he was present at the time or placed under arrest;
4. Lack of respect and disregard for rules he does not like;
5. Lack of respect and disregard, including outbursts of anger and aggressive behavior, toward CNYPC staff and residents;
6. Refusal to attend and/or participate in most classes as part of his sex offender treatment program;
7. Absence of an effective relapse plan; and
8. Risk assessment score on the Violence Risk Scale—Sex Offender Version (VRS:SO), with accompanying comments by Dr. Burgoyne, which was administered by Dr. Burgoyne on the same day he attempted to interview Willie Y and which results place Willie Y. in a category showing high risk for sexual violence.
Taken together, the Court finds the State is not relying exclusively on the conduct related to Willie Y.'s sexual offenses to substantiate its argument that civil confinement should be continued. (See e.g., Robert F., 25 NY3d at 454–55 [affirming confinement after review of offender's test scores for the risk of recidivism, his failure to prepare an adequate relapse prevention plan, and certain of his behaviors that suggested he would have difficulty complying with the rules of the strict and intensive supervision and treatment program]; Floyd Y., 19 NYS3d at 58 [imposing confinement where offender was diagnosed with multiple disorders, had a history of sexual misconduct involving multiple victims, admitted an inability to control pedophilic urges, showed lack of satisfactory progress in sex offender treatment and had no viable relapse plan]; Sincere KK., 129 AD3d at 1255 [affirming confinement where offender failed to advance beyond first phase of treatment, refused to admit his crimes, refused to submit to testing, showed aggressive behavior toward facility staff and peers, and scored as a high risk on actuarial assessments] ).
The Court's determination in this matter is made nunc pro tunc to the date of the hearing in this case, i.e., March 25, 2016. The Office of the Attorney General is directed to submit a proposed Order, on notice to Mental Hygiene Legal Service, in accordance with this Decision.
IT IS HEREBY ORDERED, that this Decision and the Court record of this proceeding shall be sealed by the Oneida County Clerk's Office and will be made available only to the parties to this proceeding or upon further Order of the Court.