Matter of Rene I. v State of New York

2017 NY Slip Op 00062 [146 AD3d 1056]

January 5, 2017

Appellate Division, Third Department

As corrected through Wednesday, March 1, 2017

[*1]

In the Matter of Rene I., Appellant, v State of NewYork, Respondent.

Sheila E. Shea, Mental Hygiene Legal Service, Albany (Matthew Bliss of counsel),for appellant.

Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), forrespondent.

Lynch, J. Appeal from an order of the Supreme Court (Demarest, J.), entered April16, 2015 in St. Lawrence County, which dismissed petitioner's application, in aproceeding pursuant to Mental Hygiene Law article 10, for his discharge fromconfinement at a secure treatment facility.

In 1980, petitioner was convicted of, among other things, rape in the first degree andsodomy in the first degree and sentenced to 121/2 to 25 years in prison. Atthe time that he committed the crimes, he was on parole for two attempted rapeconvictions. Petitioner was subsequently diagnosed with antisocial personality disorder,exhibitionism and paraphilia not otherwise specified, determined to be a dangerous sexoffender and has been civilly confined in a secure treatment facility since February 2010(see Mental Hygiene Law § 10.01 et seq.). In November2014, petitioner exercised his right to petition the court for discharge (see MentalHygiene Law § 10.09 [a]) and an evidentiary hearing was held in April2015 (see Mental Hygiene Law § 10.09 [d]; Matter of State of New York vNelson D., 22 NY3d 233, 243 [2013]). At the conclusion of the hearing,Supreme Court determined that petitioner was a "dangerous sex offender requiringconfinement" and, thus, continued his confinement (Mental Hygiene Law§ 10.09 [h]). Petitioner now appeals.

Petitioner contends that respondent failed to establish that he suffers from a mentalabnormality to the extent there was not clear and convincing evidence that he had"serious difficulty in controlling" his sexual misconduct within the meaning of MentalHygiene Law § 10.03 (i). We disagree. Mental Hygiene Law§ 10.03 (e) defines a "[d]angerous sex offender [*2]requiring confinement" as "a person who is a detained sexoffender suffering from a mental abnormality involving such a strong predisposition tocommit sex offenses, and such an inability to control behavior, that the person is likely tobe a danger to others and to commit sex offenses if not confined to a secure treatmentfacility" (see Matter of SincereKK. v State of New York, 111 AD3d 1083, 1084 [2013], lv denied 26NY3d 906 [2015]). To establish that a sex offender has difficulty controlling his or herbehavior requires more than just a showing "that a sex offender did not make efforts toavoid arrest and reincarceration" (Matter of State of New York v Donald DD., 24 NY3d 174,188 [2014]). By comparison a "detailed psychological portrait . . . woulddoubtless allow an expert to determine the level of control [an] offender has over his [orher] sexual conduct" (id.; see Matter of State of New York v Dennis K., 27 NY3d718, 734-735, 751-752 [2016], cert denied 580 US __, 137 S Ct 579 [Dec. 5, 2016]).

Here, respondent offered the testimony of Danielle Tope, an Office of Mental Healthpsychiatric examiner, and the report that she prepared as part of her evaluation. Topeexplained that, because petitioner declined to be interviewed for the evaluation, sherelied on prior psychiatric evaluations, facility records and progress notes, police andparole records, and disciplinary reports to diagnose petitioner with borderline intellectualfunction, schizophrenia, antisocial personality disorder, exhibitionistic disorder and anunspecified paraphilic disorder. When explaining her opinion that petitioner waspredisposed to commit sex offenses and was unable to control his behavior, Tope citedsuch factors as petitioner's age when he began committing sex offenses, the proximatetiming of his offenses, his disciplinary record indicating that, on "multiple" occasions, heexposed himself and masturbated in the presence of staff and his perjorative attitudetowards women. Tope also relied on the results of a rating tool known as the ViolenceRisk Scale-Sexual-Offender Version, which indicated a high risk that petitioner wouldreoffend. She explained that petitioner remained unable to complete treatment due to hisconduct, had conceded that "if temptation is present, he will act," and that he had poorinsight and an inability to understand his triggers. Contrary to petitioner's argument, wefind that Tope provided a sufficient "psychological portrait" to support her opinion thatpetitioner lacks control over his sexual misconduct (Matter of State of New York vDonald DD., 24 NY3d at 188). According deference to the trial court's ability toevaluate Tope's opinions and absent any conflicting evidence, we find that respondentestablished by clear and convincing evidence that petitioner continues to be a dangeroussex offender requiring civil confinement (see Matter of Sincere KK. v State of NewYork, 111 AD3d at 1084).

McCarthy, J.P., Rose, Clark and Aarons, JJ., concur. Ordered that the order isaffirmed, without costs.