| Matter of State of New York v David HH. |
| 2017 NY Slip Op 01414 [147 AD3d 1230] |
| February 23, 2017 |
| Appellate Division, Third Department |
[*1]
| In the Matter of State of New York, Respondent, v David HH.,Appellant. |
Sheila E. Shea, Mental Hygiene Legal Service, Albany (Shannon Stockwell of counsel), forappellant.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), forrespondent.
Clark, J. Appeal from an order of the Supreme Court (Faughnan, J.), entered May 11, 2015 inMadison County, which granted petitioner's application, in a proceeding pursuant to MentalHygiene Law article 10, to revoke respondent's regimen of strict and intensive supervision, foundrespondent to be a dangerous sex offender and confined him to a secure treatment facility.
In 2008, at the age of 29, respondent was arrested on charges of rape in the second degreeand criminal sexual act in the second degree following allegations that, on two occasions, heraped a 13-year-old girl. Respondent pleaded guilty to rape in the second degree and, in February2009, he was sentenced to a prison term of two years, followed by four years of postreleasesupervision. In 2011, respondent was conditionally released from prison, but within a fewmonths he violated the terms of his release by, among other things, accessing the Internet withoutauthorization and possessing pornographic materials, multiple computers and children's videos.As a result, respondent's conditional release was revoked and he returned to prison.
In November 2012, in anticipation of respondent's re-release to postrelease supervision,petitioner commenced a Mental Hygiene Law article 10 proceeding seeking civil management ofrespondent (see Mental Hygiene Law § 10.06 [a]). Following a psychiatricevaluation, respondent was diagnosed with antisocial personality disorder and sexualpreoccupation and he thereafter consented to a finding that he is a detained sex offender whosuffers from a mental abnormality and requires strict and intensive supervision (seeMental Hygiene Law § 10.03 [r]). [*2]SupremeCourt (Cerio Jr., J.) adjudicated respondent to be a sex offender requiring strict and intensivesupervision and issued an order directing that, upon his release, respondent be subject to aregimen of strict and intensive supervision and treatment (hereinafter SIST) (see MentalHygiene Law § 10.07 [f]). In June 2013, respondent was released to postreleasesupervision and also placed on SIST. Roughly three months later, respondent's parole officerfound respondent to be in possession of an external hard drive containing a pornographic videodepicting a " 'dream rape scene,' " as well as an electronic device containingpictures of children and music of a sexual and violent nature. Respondent was taken into custodyon a parole violation warrant and he ultimately returned to prison, where he remained until theexpiration of his sentence in January 2015.
In December 2014, in anticipation of respondent's release, Ronald Field, a clinicalpsychologist employed by the Office of Mental Health, conducted a psychiatric evaluation ofrespondent to determine if he was a dangerous sex offender requiring civil confinement(see Mental Hygiene Law § 10.03 [e]) and, if not, what, if any,modifications to the existing SIST plan were necessary to ensure that he could be safely treatedwithin the community. Field concluded that, at that time, respondent was not a dangerous sexoffender requiring civil confinement, but advised that, because respondent had reported thatpornography depicting adults was "a trigger for his sexual offending cycle," any modifications torespondent's SIST should "target his sexual preoccupation and use of pornography[,] as well asensure [that] his access to such materials be limited and monitored." On January 11, 2015,following the expiration of his sentence, respondent was released to SIST, under the supervisionof the Division of Parole (see Mental Hygiene Law § 10.11 [c]), and hemoved into his mother's residence.
Less than two months after his release, respondent admitted during a polygraph test that hepossessed pornographic magazines. The following day, respondent's parole officer visitedrespondent's residence to conduct a home search, and respondent led the parole officer to abookshelf where four pornographic magazines were located. Upon further questioning as to thelocation of any additional pornographic materials, respondent indicated that such material"could" be in his bedroom or in the hallway outside of his bedroom. A search of these areasdisclosed the presence of four pornographic movies, some of which depicted rape and torturescenes, and five children's movies starring certain child stars. Having reasonable cause to believethat respondent had violated certain conditions of his regimen of SIST, respondent's paroleofficer took respondent into custody and referred him for a psychiatric evaluation, which Fieldconducted five days later (see Mental Hygiene Law § 10.11 [d][1]).[FN1]
Petitioner then commenced this SIST revocation proceeding seeking an order findingrespondent to be a dangerous sex offender requiring civil confinement (see MentalHygiene Law § 10.11 [d] [2]). Supreme Court (Faughnan, J.) found probable causeto believe that respondent was a dangerous sex offender requiring confinement and directed thathe be committed to a secure treatment facility pending the conclusion of the proceeding(see Mental Hygiene Law §§ 10.06 [k]; 10.07 [f]; 10.11 [d] [4]).Following a [*3]hearing, Supreme Court found that respondent isa dangerous sex offender requiring civil confinement, revoked his release on SIST and directedthat he be committed to a secure treatment facility (see Mental Hygiene Law§ 10.11 [d] [4]; see also Mental Hygiene Law § 10.07 [f]).Respondent appeals.
Initially, respondent challenges the finding that he suffers from a mental abnormality.However, as Supreme Court correctly recognized, the question of whether respondent suffersfrom a mental abnormality was not at issue in his SIST revocation hearing, as he had consentedto the finding of mental abnormality that led to the underlying SIST order. Moreover, as is thecase with a dispositional hearing following a hearing on the issue of mental abnormality(see Mental Hygiene Law § 10.07 [f]), the relevant statutory provisionprovides only two dispositional choices in a SIST revocation proceeding: civil confinement or aregimen of SIST, both of which operate on the presumption that there has already been a findingof mental abnormality (see Mental Hygiene Law § 10.11 [d] [4]; Matter of State of New York vBreeden, 140 AD3d 1649, 1649 [2016]). Accordingly, under these circumstances, theissue of whether respondent suffers from a mental abnormality was not before Supreme Court inhis SIST revocation proceeding (seeMatter of State of New York v Wayne J., 143 AD3d 834, 835 [2016]; Matter ofState of New York v Breeden, 140 AD3d at 1649; Matter of State of New York v Jason H., 82 AD3d 778, 779[2011]).[FN2]
Respondent also challenges Supreme Court's determination that he is a dangerous sexoffender requiring civil confinement. Respondent does not dispute that he violated certainconditions of his SIST regimen; rather, he argues that petitioner failed to prove by clear andconvincing evidence that his violations demonstrated an inability to control his behavior, suchthat he was likely to be a danger to others and to commit sex offenses if not confined. Wedisagree.
Under Mental Hygiene Law article 10, a dangerous sex offender requiring confinement isdefined as "a detained sex offender suffering from a mental abnormality involving such a strongpredisposition to commit sex offenses, and such an inability to control behavior, that the personis likely to be a danger to others and to commit sex offenses if not confined to a secure treatmentfacility" (Mental Hygiene Law § 10.03 [e]). In contrast, a sex offender requiringstrict and intensive supervision is an individual who is a detained sex offender and suffers from amental abnormality—that is, "a congenital or acquired condition, disease or disorder thataffects the emotional, cognitive, or volitional capacity of a person in a manner that predisposeshim or her to the commission of conduct constituting a sex offense and that results in that personhaving serious difficulty in controlling such conduct" (Mental Hygiene Law § 10.03[i])—but who does not meet the definition of a dangerous sex offender requiringconfinement (see Mental Hygiene Law § 10.03 [r]). As made clear by thestatutory language, Mental Hygiene Law article 10 "envisages a distinction between sexoffenders who have difficulty controlling their sexual conduct and those who are unable tocontrol it. The former are to be supervised and treated as 'outpatients' and only the latter may beconfined" (Matter of State of New Yorkv Michael M., 24 NY3d 649, 659 [2014]).
At the SIST revocation hearing, petitioner offered, among other things, the psychiatricevaluation reports and testimony of Field, who opined that respondent was at a high risk of [*4]reoffending if he remained in the community given the "strength" ofrespondent's need for pornography, compulsion for sexual gratification and inability to complywith the conditions of SIST imposed upon him and that, therefore, respondent was a dangeroussex offender requiring civil confinement. Field testified that, in reaching his opinion, he relied onthe facts and circumstances underlying respondent's repeated SIST violations, his demonstratedinability to rid himself of pornographic materials, despite having been repeatedly advised to doso, and his admission that pornography was a "trigger" for his sexual offending behavior. Fieldalso described respondent's concerning, deceptive behavior for a sex offender released on SIST,including respondent's inconsistent statements as to his knowledge of the presence ofpornography in his residence and the frequency with which he engaged in self-gratification. Fieldfurther pointed to respondent's scores on three actuarial tests, which together categorizedrespondent as a "high [c]urrent [r]isk [p]riority" for sexual and violent recidivism, as well asgeneral recidivism. Respondent offered no competing expert testimony to rebut Field'sconclusion that respondent is a detained sex offender who suffers from a mental abnormality, isunable to control his sexual misconduct and is likely to be a danger to others and to commit sexoffenses if not civilly confined. Deferring to Supreme Court's ability to evaluate Field'sunrebutted opinion testimony (seeMatter of Rene I. v State of New York, 146 AD3d 1056, 1058 [2017]; Matter of William II. v State of NewYork, 110 AD3d 1282, 1283 [2013]), we find that petitioner established by clear andconvincing evidence that respondent is a dangerous sex offender requiring civil confinement(see Matter of State of New York v Breeden, 140 AD3d at 1649-1650; Matter of State of New York v DonaldN., 63 AD3d 1391, 1392-1395 [2009]; compare Matter of State of New York vMichael M., 24 NY3d at 659; Matter of State of New York v Husted, 145 AD3d 1637, 1638[2016]).
Garry, J.P., Egan Jr., Devine and Aarons, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1:In both his 2014 and 2015psychiatric evaluation reports, Field agreed with the diagnostic conclusions of the 2012psychiatric evaluator, but indicated that, under the Fifth Edition of the Diagnostic and StatisticalManual of Mental Disorders, which had been released in the interim, "sexual preoccupation" wasnow referred to as "hypersexuality."
Footnote 2:Respondent may challenge theissue of whether he suffers from a mental abnormality by petitioning the court for discharge(see Mental Hygiene Law § 10.09 [a], [f]).