| Matter of State of New York v Flagg |
| 2010 NY Slip Op 06953 [77 AD3d 1400] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of State of New York, Appellant, v Daniel Flagg,Respondent. |
—[*1] Emmett J. Creahan, Director, Mental Hygiene Legal Service, Utica (Lisa L. Paine of counsel), forrespondent-respondent.
Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.),entered April 2, 2010 in a proceeding pursuant to Mental Hygiene Law article 10. The order directedthat respondent be released from detention at the Onondaga County Correctional Facility under theoversight of the New York State Division of Parole.
It is hereby ordered that the order so appealed from is unanimously reversed on the law withoutcosts and the petitions are granted to the extent that they seek a determination that respondent is adangerous sex offender requiring confinement and an order for confinement pursuant to Mental HygieneLaw § 10.11 (d).
Memorandum: On a prior appeal, we affirmed an order determining that respondent is a detainedsex offender who suffers from a mental abnormality pursuant to Mental Hygiene Law article 10(see § 10.06 [k]; § 10.07 [a]), but that he was not a dangerous sex offenderrequiring confinement (Matter of State of New York v Flagg [appeal No. 1], 71 AD3d 1528[2010]; see § 10.07 [f]). Also on a prior appeal, we modified an order dischargingrespondent to a regimen of strict and intensive supervision ([SIST] § 10.11), adding certainconditions to the SIST regimen (Matter of State of New York v Flagg [appeal No. 2], 71AD3d 1528 [2010]). While those appeals were pending, petitioner filed several petitions alleging thatrespondent had violated the conditions and terms of his SIST regimen. Following hearings on thepetitions seeking, inter alia, a determination that respondent is a dangerous sex offender requiringconfinement (see Mental Hygiene Law § 10.11 [d] [2], [4]; see also §10.07 [f]), Supreme Court denied the petitions and released respondent pursuant to the prior order, asmodified on appeal (Flagg [appeal No. 2], 71 AD3d 1528 [2010]), imposing a regimen ofSIST. We agree with petitioner that the court erred in doing so inasmuch as petitioner established byclear and convincing evidence that respondent is a dangerous sex offender requiring confinement(see Mental Hygiene Law § 10.11 [d] [4]). We therefore conclude that the regimen ofSIST should be revoked and that respondent should be confined.
Pursuant to Mental Hygiene Law § 10.11 (d) (1), a regimen of SIST may be revoked if a[*2]person violates a condition of that regimen. Where, as here, thepetitioner seeks to confine the respondent based on violations of his or her SIST regimen (§10.11 [d] [2]), the court must conduct a hearing at which the petitioner has the burden of establishingby clear and convincing evidence that the respondent is a dangerous sex offender requiring confinement(see § 10.11 [d] [4]). The court's determination is made pursuant to the standards setforth in section 10.07 (f) for the initial determination whether a respondent is a dangerous sex offenderrequiring confinement (see § 10.11 [d] [4]).
"No dispute exists that respondent is a sex offender requiring civil management as previouslydetermined by [the c]ourt . . . , or that [his] conduct . . . involved violationsof his SIST program, authorizing petitioner to seek confinement" (Matter of State of New York v Donald N., 63 AD3d 1391, 1392[2009]). The record establishes that respondent consumed alcohol or drugs on at least four occasions;refused to sign necessary releases of personal information; failed to follow the directions of his paroleofficer; was arrested for promoting prison contraband and for failing to register his Internet service asrequired by the Sex Offender Registration Act (Correction Law § 168 et seq.); hadpornographic images on the computer he was known to use; and was discharged multiple times fromsex offender treatment. Based on the fact that respondent continued to engage in high risk behavior andfailed to complete any treatment, petitioner's psychiatric expert concluded that respondent posed a highrisk for sexual recidivism and that he was a dangerous sex offender requiring confinement.
Although respondent did not engage in any sexually inappropriate conduct when he violated theconditions of his SIST regimen, we conclude that the evidence presented at the hearings establishedthat respondent could not "be adequately controlled by modifying the conditions of [that] regimen"(Donald N., 63 AD3d at 1393; see Mental Hygiene Law § 10.11 [d] [4]).Despite the fact that alcohol and pornography were identified as triggers for respondent's prior sexualoffenses, respondent continued to consume alcohol and to view pornography on a regular basis. "Thus,although respondent's SIST violations were not sexual in nature, they remain highly relevant regardingthe level of danger that respondent poses to the community with respect to his risk of recidivism"(Donald N., 63 AD3d at 1394). Further, respondent's "blatant disregard for [the] paroleofficer's authority and advice seriously undermines [the] contention[ ] [of respondent] that more intenseSIST monitoring . . . would be sufficient to control his behavior" (id.).
Based on our determination, we see no need to address petitioner's remaining contention.Present—Scudder, P.J., Centra, Peradotto, Sconiers and Pine, JJ.