| Matter of Charles A. v State of New York |
| 2012 NY Slip Op 09124 [101 AD3d 1535] |
| December 27, 2012 |
| Appellate Division, Third Department |
| In the Matter of Charles A., Respondent, v State of New York,Appellant. |
—[*1] Sheila E. Shea, Mental Hygiene Legal Service, Albany (Shannon Stockwell of counsel), forrespondent.
Garry, J. Appeals (1) from an order of the Supreme Court (Demarest, J.), entered March 30,2012 in St. Lawrence County, which granted petitioner's application, in a proceeding pursuant toMental Hygiene Law article 10, for his discharge and/or release to the community under aregimen of strict and intensive supervision and treatment, (2) from an order of said court, enteredApril 26, 2012 in St. Lawrence County, which directed petitioner's release into the custody of theDepartment of Corrections and Community Supervision for the purpose of strict and intensivesupervision and treatment, and (3) from an amended order of said court, entered May 8, 2012 inSt. Lawrence County, which revised the conditions of the strict and intensive supervision andtreatment.
In 1984, petitioner pleaded guilty to two counts of sodomy in the first degree arising out ofseparate assaults on children. In 1989, while on parole, he committed another sexual assault on achild and subsequently pleaded guilty to sexual abuse in the first degree and other crimes. He wasparoled in 2003 but returned to prison in 2004 after violating parole conditions. In 2007, he wastransferred from prison to the St. Lawrence Psychiatric Center (hereinafter SLPC) and beganparticipating in a sex offender treatment program offered by the Office of Mental Health(hereinafter OMH). In 2009, following a jury trial and a dispositional hearing pursuant to MentalHygiene Law article 10, he was found to suffer from a mental abnormality and to be a dangerous[*2]sex offender requiring confinement in a secure treatmentfacility. He waived his right to petition for discharge following the first year of confinement and,upon the second annual notification of this right, commenced this proceeding seeking discharge(see Mental Hygiene Law § 10.09 [a], [f]). Following a retention hearing, SupremeCourt granted the petition and directed petitioner's release under strict and intensive supervision(hereinafter SIST). The court thereafter issued a SIST order, followed by an amended SIST order.Respondent appeals from each of these orders.
At the retention hearing, the parties offered conflicting expert psychiatric testimonyregarding the risks of petitioner's potential release; respondent's expert testified that petitionercontinued to require confinement in a secure facility, while petitioner's expert opined that hecould be safely managed in the community under SIST. Following the hearing, Supreme Courtconcluded that both experts were fully qualified and had reasonable grounds for theirconclusions. Given what the court described as "the equal strengths of [the experts'] opinions,"the court found that respondent had not met its burden to prove by clear and convincing evidencethat petitioner remained "a dangerous sex offender requiring confinement" (Mental Hygiene Law§ 10.09 [b]; see Mental Hygiene Law § 10.09 [f], [h]). Respondent contendsthat this conclusion was "fatally flawed" in that it was based on an allegedly incorrect statementby petitioner's expert during the retention hearing that petitioner is ready for phase IV—thefinal stage of the OMH sex offender treatment program—but that phase IV is not availableto him.
The record does not include a full description of this program, but the parties agreed that thisCourt may take judicial notice of the information contained in OMH's Annual Report on theImplementation of Mental Hygiene Law Article 10, a document available to the public on agovernment website (see CPLR 4511; People v Eden, 95 AD3d 1446, 1447 n [2012], lv denied 19NY3d 1025 [2012]). According to the Annual Report, persons who have been adjudicated asdangerous sex offenders requiring confinement are treated in two OMH securefacilities—SLPC and the Central New York Psychiatric Center (hereinafterCNYPC)—where they progress at an individualized pace through four incremental phasesof treatment. Phase III of this program requires participants to meet goals that demonstrate theability to utilize skills and insights acquired earlier in the program. Upon completing these goalsand maintaining them for six months or longer, participants may enter phase IV, which addressesindividualized discharge planning for the transition back to the community. As of October 2011,approximately 270 residents of CNYPC and SLPC were participating in the OMH program;fewer than 30 had reached phase III and only one—a resident of CNYPC—was inphase IV (see Office of Mental Health, 2011 Annual Report on the Implementation ofMental Hygiene Law Article 10 at 11 [Sept. 2012], available athttps://www.omh.ny.gov/omhweb/statistics/SOMTA_Report_2011.pdf [accessed Dec. 5, 2012]).Notably, nothing within this detailed report indicates that phase IV programming is limited toonly one of the two facilities.
Petitioner's expert testified that he believed that petitioner was ready for phase IV but couldnot progress to that stage of the program because it did not exist and was not available at SLPC.Upon respondent's objection that these claims were inaccurate and unsupported by the evidence,Supreme Court agreed that it would not treat the statement that phase IV did not exist at SLPC asa fact in evidence. Respondent contends that the court nonetheless did so, as the written decisionultimately included statements that petitioner—who had been in phase III forapproximately two years at the time of the retention hearing—had progressed "as far as he[was] able" in the OMH program, and that phase IV "doesn't exist" at SLPC. Respondent arguesfirst, that the claim that phase IV is unavailable to petitioner is incorrect and, second, that thecourt's reliance upon this assertion after advising that it would not do so deprived respondent ofthe opportunity to present evidence demonstrating that phase IV is available at SLPC butthat—in [*3]this relatively new and individually pacedprogram, which came into existence in 2007—neither petitioner nor any other SLPCresident has yet progressed to that level.
We agree that significant factual issues are raised. Among other things, petitioner's mostrecent annual treatment progress review noted that petitioner had completed most of his phase IIItreatment goals and concluded that if he continued to progress and completed the remaininggoals, his treatment team expected to recommend him for phase IV.[FN*]The annual treatment progress review thus suggests that the reason that petitioner has not enteredphase IV is not that it is unavailable, but instead that he has not yet reached that level oftreatment. Significantly, petitioner's expert testified unequivocally that it would be preferable forpetitioner to complete phase IV before being released under SIST if, in fact, phase IVprogramming were available. It appears that the sole basis for the expert's belief that phase IVwas unavailable to petitioner was the limited participation at that time.
As the trial record on this issue is incomplete, we agree with respondent that SupremeCourt's assurance that it would not rely on the representations of petitioner's expert regardingphase IV deprived respondent of the ability to present relevant and material evidence. Theserepresentations do not raise questions of credibility, as to which we defer to Supreme Court'ssuperior opportunity to hear the testimony and observe the witnesses (see Matter of State of New York v TimothyEE., 97 AD3d 996, 998 [2012]; Matter of State of New York v Kenneth BB., 93 AD3d 900, 902[2012]); instead, to the extent that the factual assertions of petitioner's expert as to the availabilityof phase IV—and thus, his ultimate conclusions as to petitioner's progress in treatment andthe appropriateness of release under SIST—are unsupported by an evidentiary foundationin the record, they are speculative and without probative value (see Bergstrom v McChesney, 92 AD3d1125, 1127 [2012]; Gray v SouthColonie Cent. School Dist., 64 AD3d 1125, 1128 [2009]; Maldonado v Su JongLee, 278 AD2d 206, 207 [2000]). Although this Court's authority is as broad as that of thetrial court in reviewing this nonjury determination (see Matter of Carpinello v Floyd A., 23 AD3d 179, 182 [2005]),the lack of evidence in the record as to the availability of phase IV at SLPC, the reasons forpetitioner's failure to attain that level of programming and—crucially—the relativestrengths, benefits and shortcomings of phase IV programming as compared to SIST renders suchreview impossible. Accordingly, we must remit for a new hearing to allow the development of afull record on these issues, an opportunity for petitioner's expert to consider his opinionsregarding the appropriateness of SIST for petitioner in the light of new information, if any,regarding the availability of phase IV, and further review by Supreme Court.
Peters, P.J., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the orders and amendedorder are reversed, on the law, without costs, [*4]and matterremitted to the Supreme Court for further proceedings not inconsistent with this Court's decision.
Footnote *: Respondent's expert, apsychiatric examiner employed by OMH, testified that the first step in entering phase IV is aninternal review at SLPC conducted upon the recommendation of the treatment team; if the resultof this review is positive, the OMH central office in the City of Albany conducts an externalreview and makes the final determination.