| Matter of State of New York v Donald N. |
| 2009 NY Slip Op 05044 [63 AD3d 1391] |
| June 18, 2009 |
| Appellate Division, Third Department |
| In the Matter of State of New York, Respondent, v Donald N.,Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondent.
Spain, J. Appeal from an order of the Supreme Court (Coccoma, J.), entered July 3, 2008 inOtsego County, which, in a proceeding pursuant to Mental Hygiene Law article 10, foundrespondent to be a dangerous sex offender and confined him to a secure treatment facility.
In 2002, respondent was convicted of sexual abuse in the first degree, arising out of anincident involving two adolescent girls, and sentenced to a prison term of two years with threeyears of postrelease supervision. He was paroled in August 2004 but, after violating the terms ofhis release, his parole was revoked and he was remanded to prison in January 2006. Prior to hisrelease in November 2007, the Attorney General filed a petition claiming that respondent is arecidivist sex offender and seeking an order authorizing civil management of respondentpursuant to Mental Hygiene Law article 10. In January 2008, respondent appeared in SupremeCourt with counsel, waived a probable cause hearing and his right to a jury trial (seeMental Hygiene Law § 10.06 [g]; § 10.07) and admitted to being a sex offender whosuffers from a mental abnormality requiring management as defined in Mental Hygiene Lawarticle 10 (see Mental Hygiene Law § 10.03 [q]; § 10.07 [f]). SupremeCourt issued an order which found respondent to be a sex offender suffering from a mentalabnormality requiring civil management, imposed mandatory conditions of strict and intensivesupervision and treatment (hereinafter SIST) pursuant to Mental Hygiene Law § 10.11,and placed respondent under the supervision of [*2]the Divisionof Parole.
Less than two months later, respondent was arrested for driving while under the influence ofdrugs after he drove a pickup truck containing two deer carcasses into a ditch. Petitioner thencommenced this proceeding alleging that respondent had violated the conditions and terms of hisSIST program and seeking a determination that respondent is a dangerous sex offender in needof confinement (see Mental Hygiene Law § 10.11 [d] [2], [4]; see alsoMental Hygiene Law § 10.07 [f]). Following a bench trial, Supreme Court foundrespondent to be a dangerous sex offender requiring confinement and committed him to a securetreatment facility until such time as he no longer requires confinement. On respondent's appeal,we now affirm.
No dispute exists that respondent is a sex offender requiring civil management as previouslydetermined by Supreme Court (see Mental Hygiene Law § 10.03 [q]; §10.07 [f]),[FN1]or that the conduct leading to his March 2008 arrest involved violations of his SIST program,authorizing petitioner to seek confinement (see Mental Hygiene Law § 10.11 [d][2]).[FN2] Instead, respondent argues that in the absence of any evidence that his SIST violation involvedany sexually inappropriate conduct, and in light of the conflicting expert testimony regarding thelevel of danger that respondent poses to himself and the community, petitioner failed to meet itsburden of establishing by clear and convincing evidence (see Mental Hygiene Law§ 10.07 [d]) that respondent is a dangerous sex offender requiring confinement. Further,respondent asserts that confinement is not necessary because his behavior can be adequatelycontrolled by modifying the conditions of his SIST regimen (see Mental Hygiene Law§ 10.11 [d] [4]).
Pursuant to Mental Hygiene Law article 10, a "dangerous sex offender requiringconfinement" is one who is "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]). Petitioner relies on evidence of respondent'scriminal history—dating back to 1990—and admissions establishing his inability tocontrol his attraction to adolescent females. His 2002 conviction stemmed from his guilty plea tosexual abuse in the first degree for forcible sexual conduct involving two teenage girls who werebaby-sitting respondent's then three-year-old son. In 1992, he was arrested for engaging in sexwith a [*3]15-year-old girl. Respondent admits to several sexualrelationships with underage females, including the mother of his son who was conceived whenthe child's mother was 16 and he was 24. He freely affirms his attraction to young girls, statingthat they make him feel "young again." Significantly, respondent admitted during a polygraphexamination that since his last conviction, after completing sex offender treatment inprison and when he was in his early 30s, he has had sexual relations with approximately 20underage females.
Respondent places much emphasis on the fact that his violations did not involve any sexualmisconduct. Blood tests confirmed, however, that he violated his SIST plan by using marihuana,morphine and three other controlled substances just six weeks after beginning the program,despite the fact that substance abuse has been identified as respondent's primary risk factor forrecidivism. Indeed, alcohol played a role in respondent's most recent conviction and he admittedthat he has used alcohol and drugs to manipulate his victims. Despite a professed awareness thatsubstance abuse is his number one risk factor, respondent reported to his own expert witness thathe did not consider the positive drug test to be a relapse. After interviewing respondent,petitioner's expert witness—Office of Mental Health psychologist Joel Lord who opinedthat confinement is necessary—concluded that respondent "has no concern, nor interestsin avoiding the risk factors." Thus, although respondent's SIST violations were not sexual innature, they remain highly relevant regarding the level of danger that respondent poses to thecommunity with respect to his risk of recidivism.
Lord testified that a stricter civil management plan would be insufficient to treat respondentbecause respondent does not believe he is doing anything wrong when he pursues young girlsand because respondent was unable to articulate an understanding of even the most basicelements of a sex offender treatment program, thereby demonstrating his need for far moreintensive treatment than he had been receiving. Respondent's expert witness, psychologist BudBallinger, acknowledged that respondent's judgment and impulse control were poor and thatrespondent had likely been untruthful when he reported that he has experienced a dramaticdecrease in his sexual preoccupation, but nevertheless found that confinement was unnecessary.Ballinger opined that more intensive treatment could be provided to address respondent's riskfactors, including frequent polygraph testing, intensive substance abuse programming,psychotropic medication and more frequent contact with parole supervisors.
As respondent chose not to testify on his own behalf, Supreme Court focused onrespondent's history, his admissions and the conflicting expert testimony in reaching theconclusion that respondent presents a danger to society. The trier of fact is in the best position toevaluate the weight and credibility of conflicting expert medical and psychiatric testimony(see Matter of George L., 85 NY2d 295, 305 [1995]; Matter of Eric U., 40 AD3d 1148, 1149 [2007], lv denied 9NY3d 809 [2007]) and, under the circumstances presented here, we defer to Supreme Court'sdecision to credit Lord's opinion over that of Ballinger. We find it particularly significant thatpetitioner violated his SIST program just hours after an in-home SIST visit from his paroleofficer, where he specifically sought permission to drive and that request was denied. Thisblatant disregard for his parole officer's authority and advice seriously undermines petitioner'scontentions that more intense SIST monitoring, including more frequent face to face meetings,would be sufficient to control his behavior. Indeed, given the consensus by the experts thatdiagnostic testing places respondent in the high risk category for sexual recidivism, thecompelling testimony that respondent fails to appreciate that he has a problem and hisdemonstrated inability to adhere to the conditions of parole or his SIST program, we decline todisturb Supreme Court's determination that respondent suffers from a mental abnormality [*4]manifested by a strong disposition to commit sexual offenses andthat his inability to contain his behavior presents an unacceptable risk of danger to thecommunity.
Peters, J.P., Rose, Kane and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: As determined by SupremeCourt's January 2008 order, respondent admitted that he has a "mental abnormality" and thisfinding is supported by both medical experts who testified at the bench trial, who opined thatrespondent has been appropriately diagnosed as suffering from hebephilia, alcohol dependenceand and antisocial personality disorder.
Footnote 2: Respondent's conduct clearlyviolated conditions 13, 18 and 51 of the mandated SIST conditions in that it was established thathe drove a truck without having received prior approval to drive from his parole supervisors, wasunder the influence of various drugs that were not prescribed by any medical professional whiledriving said truck and his conduct violated provisions of state law and threatened the safety andwell-being of himself and others.