| Matter of Wright v State of New York |
| 2015 NY Slip Op 09711 [134 AD3d 1483] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of Myron Wright, Consecutive No. 16906,for Discharge from Central New York Psychiatric Center Pursuant to Mental HygieneLaw § 10.09, Respondent, v State of New York et al.,Appellants. |
Eric T. Schneiderman, Attorney General, Albany (Michael Connolly of counsel), forrespondents-appellants.
Emmett J. Creahan, Director, Mental Hygiene Legal Service, Utica (Patrick T.Chamberlain of counsel), for petitioner-respondent.
Appeal from an order of the Supreme Court, Oneida County (Louis P. Gigliotti,A.J.), entered March 26, 2015 in a proceeding pursuant to Mental Hygiene Law article10. The order, among other things, directed the discharge of petitioner from the custodyof the Office of Mental Health.
It is hereby ordered that the order so appealed from is reversed on the law withoutcosts, the motion is denied, and the matter is remitted to Supreme Court, Oneida County,for further proceedings on the petition in accordance with the following memorandum:Petitioner commenced this proceeding to challenge his continued confinement to a securefacility as a dangerous sex offender. Petitioner was convicted of numerous sex offenses,including a 1972 rape that occurred hours after he was placed on probation and a 1978sex offense that occurred shortly after his release from prison. He was released againafter his ensuing prison sentence and, although he remained in the community forapproximately 10 years, he was sentenced to, inter alia, six years in prison upon his 2001plea of guilty to attempted rape in the first degree (see Matter of State of New York v Myron P., 86 AD3d 26,28 [2011], affd 20 NY3d 206 [2012]). After petitioner completed that prisonterm, respondents commenced a proceeding seeking to confine him pursuant to article 9of the Mental Hygiene Law, and they then commenced an article 10 civil confinementproceeding. After a trial on the latter proceeding, Supreme Court, Albany County(McNamara, J.), found that petitioner was a dangerous sex offender in need ofconfinement and committed him to a secure treatment facility (see Myron P., 86AD3d at 28).
In 2014, petitioner filed a petition pursuant to Mental Hygiene Law§ 10.09 (f), seeking his release under a regimen of strict and intensivesupervision and treatment. At the trial on the petition, respondents called Dr. Allison T.Prince, who opined that petitioner remained a dangerous sex offender requiringconfinement. Dr. Prince based her opinion, inter alia, on her diagnosis that petitionersuffers from antisocial personality disorder, cannabis dependence in remission in a secureenvironment and paraphilia, otherwise specified, i.e., his arousal by and predisposition toengage in nonconsensual sex, in a highly formulaic and compulsive manner, following awell-defined cycle of offending. Dr. Prince testified regarding petitioner's history ofoffending, including his admission that he offended against 21 women, and his recentlack of progress in treatment. She also testified regarding the psychological tests given topetitioner, and developed a comprehensive profile of his sexual compulsions. Dr. Prince'sevaluation of [*2]petitioner was also received inevidence.
At the conclusion of Dr. Prince's testimony, petitioner moved for a directed verdictpursuant to CPLR 4401, contending, inter alia, that respondents failed as a matter of lawto meet their burden of establishing that he has serious difficulty controlling his conductwithin the meaning of the Mental Hygiene Law. We agree with respondents that thecourt erred in granting the motion for a directed verdict. We therefore reverse the order,deny the motion and remit the matter to Supreme Court for further proceedings on thepetition.
It is well settled that, "[i]n determining a motion for a directed verdict, the court mustview the evidence in the light most favorable to the nonmoving party and resolve allissues of credibility in favor of the nonmoving party . . . , and may grant themotion only if there is no rational process by which the jury could find for the[nonmoving party] as against the moving" party (Wolf v Persaud, 130 AD3d 1523, 1524 [2015]; see generally Matter of State ofNew York v Farnsworth, 107 AD3d 1444, 1445 [2013]). In considering such amotion, "the trial court must afford the party opposing the motion every inference whichmay properly be drawn from the facts presented, and the facts must be considered in [the]light most favorable to the nonmovant" (Szczerbiak v Pilat, 90 NY2d 553, 556[1997]; see Shelters v City ofDunkirk Hous. Auth., 126 AD3d 1329, 1329 [2015]).
Pursuant to the Mental Hygiene Law, a person is classified as a dangerous sexoffender requiring confinement if that person "suffer[s] from a mental abnormalityinvolving such a strong predisposition to commit sex offenses, and such an inability tocontrol behavior, that the person is likely to be a danger to others and to commit sexoffenses if not confined to a secure treatment facility" (Mental Hygiene Law§ 10.03 [e]). The statute defines a mental abnormality as "a congenital oracquired condition, disease or disorder that affects the emotional, cognitive, or volitionalcapacity of a person in a manner that predisposes him or her to the commission ofconduct constituting a sex offense and that results in that person having serious difficultyin controlling such conduct" (§ 10.03 [i]).
Here, the court concluded that, as a matter of law, respondents failed to establish thatpetitioner has serious difficulty in controlling his predisposition to commit sexualoffenses. Respondents' burden with respect to that issue was to submit "clear andconvincing evidence that [petitioner] had 'serious difficulty in controlling' his sexualmisconduct within the meaning of section 10.03 (i)" (Matter of State of New York v Donald DD., 24 NY3d 174,187 [2014]). Although we agree with petitioner that the evidence establishing that he wasdiagnosed with antisocial personality disorder and paraphilia is, standing alone,insufficient to meet that burden (see id. at 189-191), we conclude that theevidence presented by respondents in this case was sufficient to withstand petitioner'smotion for a directed verdict.
Respondents introduced evidence that petitioner had been diagnosed with threemental disorders, i.e., antisocial personality disorder, paraphilia otherwise specified, andcannabis dependence in sustained remission in a controlled environment. We agree withthe dissent that, when asked which factors led her to the conclusion that petitioner hadserious difficulty in controlling his sexual behavior, Dr. Prince listed only certain factors.We note, however, that respondents elicited significant additional informationconcerning petitioner's predispositions from Dr. Prince throughout the trial, and shetestified that such information factored into her diagnosis and her opinion that petitionerhad the requisite serious difficulty in controlling his sexual conduct. That evidencetherefore leaves an issue for the trier of fact whether petitioner has serious difficulty incontrolling his predisposition to commit sexual crimes. First, respondents established thatpetitioner engaged in sexual offenses against 21 women but was not prosecuted for all ofthose offenses, and petitioner had "voiced having . . . sexual arousal tononconsensual activity." Petitioner told Dr. Prince that there was a 50-50 chance that hewould reoffend, thus lending credence to Dr. Prince's opinion that he had seriousdifficulty in controlling his conduct.
More importantly, however, Dr. Prince indicated that petitioner follows "a script ofbehaviors with his offense cycle . . . that he would play out with eachoffense," and she wrote in her report that petitioner "presents with a pattern of highlyrepetitive, compulsive sexual behavior." Dr. Prince testified that petitioner's cycle beginswith feelings of loneliness, anger, powerlessness and isolation, which lead to the start ofhis cycle of offending. His cycle then progresses through fixating on a particular woman,stalking her, fantasizing about nonconsensual [*3]sexwith her, planning on how to approach her, and then physically touching her andengaging in sex with her without her consent, often with the use of weapons.
Furthermore, Dr. Prince testified that petitioner never completed a sexual offendertreatment program, became stagnant in his current treatment program, and slept duringrecent group treatment sessions. Dr. Prince testified that petitioner's treatment had notprogressed to the point where he had a viable plan for coping with that cycle, and thatpetitioner was isolating himself as a method of coping with the stresses that he facedfrom, inter alia, these Mental Hygiene Law article 10 proceedings. She also opined thathe needed to update his relapse prevention plan to account for his specific sexual offensecycle, but he had not done so. Dr. Prince testified that petitioner has "been repeatedlyreally encouraged to focus more intently on areas related to his cycle, and he just hasn'tdone that." In addition, although petitioner had previously submitted to two penileplethysmograph (PPG) tests earlier in the treatment process, they were inconclusive, andhe refused to take a polygraph or another PPG test during his most recent phase oftreatment.
Dr. Prince also relied on psychological testing of petitioner. She noted that he hadundergone Static-99 tests on several occasions, and that his test scores of seven in 2007and 2008 supported her conclusions. In addition, she scored a VRS:SO test regardingpetitioner, which indicated that he was in the high risk group for reoffending sexually.Consequently, we conclude that Dr. Prince created "[a] detailed psychological portrait ofa sex offender [that] allow[ed] [her] to determine the level of control the offender hasover his sexual conduct" (Donald DD., 24 NY3d at 188). Indeed, when the Courtof Appeals was confronted with a trial of an offender with a similar diagnosis andsupporting facts, the Court concluded that there was overwhelming evidence on the issueof the offender's inability to control his conduct (see Matter of State of New York v Robert F., 25 NY3d448, 454-455 [2015]).
Dr. Prince also testified that petitioner indicated that he was becoming increasinglyfrustrated with the Mental Hygiene Law article 10 process, and his continued detention.When coupled with the evidence of petitioner's clear, well-defined cycle of offendingthat begins with becoming frustrated, the deficits in his recent treatment plan on thatspecific area, and his stagnating course of treatment, we conclude that Dr. Prince'sopinion and the supporting evidence, " 'when viewed in light of such features ofthe case as the nature of the psychiatric diagnosis, and the severity of the mentalabnormality itself, [establish that petitioner is a] . . . dangerous sexualoffender whose serious mental illness, abnormality, or disorder subjects him to civilcommitment[,] [rather than a] dangerous but typical recidivist convicted in anordinary criminal case' " (Donald DD., 24 NY3d at 189, quotingKansas v Crane, 534 US 407, 413 [2002]). Thus, respondents submittedsufficient evidence that, if it is credited by the factfinder, would establish that petitionerhas a condition, disease or disorder "that predisposes him . . . to thecommission of conduct constituting a sex offense and that results in [petitioner] havingserious difficulty in controlling such conduct" (Mental Hygiene Law§ 10.03 [i]; seegenerally Matter of State of New York v John S., 23 NY3d 326, 348-349[2014], rearg denied 24 NY3d 933 [2014]). Consequently, we conclude that, ifthe factfinder accepts that evidence, there is a "rational process by which the [factfinder]could find for [respondents] as against" petitioner (Wolf, 130 AD3d at1524).
All concur except Lindley and DeJoseph, JJ., who dissent and vote to affirm inaccordance with the following memorandum.
Lindley and DeJoseph, JJ. (dissenting). We respectfully dissent because we disagreewith the conclusion of the majority, quoting Matter of State of New York v Donald DD. (24 NY3d 174,188 [2014]), that respondents' expert created " '[a] detailed psychological portraitof [petitioner that] allow[ed] [her] to determine the level of control the [petitioner] hasover his sexual conduct.' " We therefore vote to affirm.
In 2014, the Court of Appeals wrote that sufficient evidence of a serious difficultycontrolling sex-offending conduct may not consist of such "meager material" as that asex offender did not make efforts to avoid arrest and re-incarceration, but instead mustinclude a "detailed psychological portrait of a sex offender [to] allow an expert todetermine the level of control the offender has over his sexual conduct" (id.).Shortly thereafter, the First Department in Matter of State of New York v Frank P. (126 AD3d 150[2015]), relying on Donald DD., held that the evidence on which the Stateexperts relied was insufficient to establish by clear and convincing evidence thatrespondent has or will have serious difficulty controlling his behavior, where[*4]"respondent spent 33 consecutive years in prison and thereis no evidence that he engaged in any inappropriate sexual behavior during thatprolonged period to suggest that he had serious difficulty controlling his behavior in suchan environment. Instead, [respondent] voluntarily attended anger management and sexoffender treatment programs while in prison" (id. at 163).
Here, during respondents' direct examination of their expert, Dr. Allison T. Prince,she was specifically asked to provide her opinion on why petitioner has serious difficultycontrolling his behavior. In response, she listed only four factors: (1) the chronic natureof the offenses, including the fact that they started at a young age; (2) the fact that heoffended despite the likelihood of being caught; (3) his previous criminal sanctions,including incarceration; and (4) his history of offending in a secure environment.
In our view, those factors are insufficient to establish by clear and convincingevidence "that [petitioner] had 'serious difficulty in controlling' his sexual misconductwithin the meaning of section 10.03 (i)" (Donald DD., 24 NY3d at 187).With respect to the second and third factors, as we previously noted, the Court ofAppeals made it clear that evidence of serious difficulty cannot consist of such "meagermaterial" as a failure to make efforts to avoid arrest and re-incarceration (id. at188). As for the fourth factor, although there is some evidence that petitioner "sexuallyacted out" while imprisoned in the mid-1980s, the record is also clear that from 2000 tothe present petitioner has not had any instances of sexual misconduct and has notengaged in any "proxy" behaviors—behaviors that mimic aspects of a person'ssexual offenses—while in a secure facility. The events contemplated by the fourthfactor occurred approximately 30 years ago, well prior to the offenses that led topetitioner's current confinement. Those instances can hardly support the conclusion "thatpetitioner currently suffers from a 'mental abnormality' " (Matter of Groves v State of NewYork, 124 AD3d 1213, 1214 [2015] [emphasis added]).
As for the first factor, there is no dispute that petitioner has a lengthy criminal historyof sex offenses dating back to the 1970s. These offenses, in Dr. Prince's view, followed a"script" or a pattern in which petitioner would form a relationship with a prostitute, stalkher, fantasize about the attack, plan the attack, and then complete the attack.Nevertheless, Dr. Prince did not provide a connection between the number of victims andthe "serious difficulty" standard. In any event, while in Donald DD. there werecertainly fewer victims and fewer crimes than here, in Frank P., the respondent"was convicted of raping and sodomizing four women in their homes, and accused ofraping seven more women" (Frank P., 126 AD3d at 151). On those facts, the FirstDepartment, relying heavily on Donald DD., determined that "the inferences thatlogically flow from [the] evidence [were] insufficient to support a determination, underthe clear and convincing evidence standard, that respondent has or will have seriousdifficulty controlling his sexual behavior" (id. at 163). Simply put, as in FrankP., it is impossible to conclude on this record whether the number of victims meansthat petitioner had "difficulty in controlling his urges or simply decided to gratify them"(Donald DD., 24 NY3d at 188).
Although the majority is correct that respondents "elicited significant additionalinformation concerning petitioner's predispositions from Dr. Prince throughout the trial,"we disagree with the majority's view that Dr. Prince "testified that such informationfactored into her . . . opinion that petitioner had the requisite seriousdifficulty in controlling his sexual conduct." The issue of "serious difficulty" was not theonly issue at the hearing and therefore not the only issue discussed by Dr. Prince; sheprovided testimony on the "mental abnormality" question along with testimony on theissue of whether petitioner is currently a dangerous sex offender requiring confinement.In our view, it is entirely speculative to conclude that the additional information providedby Dr. Prince was intended to address the serious difficulty question, and she simplyfailed to provide the connection suggested by the majority.
Finally, we note our disagreement with the majority's view of the record and thetestimony of Dr. Prince that petitioner never completed a sex offender treatment programand has become stagnant in his current programs. Dr. Prince testified that one ofpetitioner's treatment providers told her that petitioner had " 'maxed out' of thetreatment opportunities at the facility, because he . . . engaged in. . . mostly all of the groups that they offer." Moreover, the record is clearthat petitioner is currently in phase III of his treatment and has been recommended for thefinal phase of treatment and apparently could proceed to phase IV if he took a third PPGtest and a polygraph. In the four-phase treatment program provided by Office of MentalHealth (OMH) secure facilities, "[p]hase III . . . requires participants to meetgoals that demonstrate the ability to [*5]utilize skills andinsights acquired earlier in the program. Upon completing these goals and maintainingthem for six months or longer, participants may enter phase IV, which addressesindividualized discharge planning for the transition back to the community. As ofOctober 2011, approximately 270 residents of [OMH secure facilities] were participatingin the OMH program; fewer than 30 had reached phase III and only one . . .was in phase IV" (Matter ofCharles A. v State of New York, 101 AD3d 1535, 1537 [2012]). In our view,petitioner's presence in phase III shows that he has made progress and has some level ofunderstanding of his prior offenses and actions, and the so-called stagnancy ofpetitioner's treatment was not completely explained by Dr. Prince, who simply concludedthat "[y]ou can still glean additional information from attending these [therapy] groupsagain." Present—Smith, J.P., Carni, Lindley, Valentino and DeJoseph, JJ.