Cite as: NYS v. Luis P., 24026-2007, NYLJ 1202587739010, at *1 (Sup., SUF, Decided February 4, 2013)

Justice Emily Pines

Decided: February 4, 2013

ATTORNEYS

Attorney for Petitioner: Eric T. Schneiderman, Cheryl Henderson, AAG., State of New York, Office of The Attorney General, New York, New York.

Attorney For Respondent: Andrew F. Murray, Esq., Elmhurst Hospital Center, State of New York, Mental Hygiene Legal Service, Elmhurst, New York.

PROCEDURAL BACKGROUND

 

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This proceeding began on July 23, 2007, when the State of New York, by the Attorney General, sought an order authorizing civil management of Respondent, Luis P., pursuant to Article 10 of the Mental Hygiene Law("MHL"). After this Court determined, following a hearing, that there was probable cause to believe that Respondent was a sex offender requiring such civil management, the Respondent appeared, represented by counsel on February 11, 2008, following a motion made on his behalf to reopen the probable cause hearing. At such court

 

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appearance, Luis P. waived his rights on the record both to reopen the Probable Cause determination (which this Court had agreed to do) and testified under oath that he was a sex offender with a mental abnormality, setting forth that he understood the two pronged test, required to be demonstrated by clear and convincing evidence under the subject statute. He stated on the record both that he had a predisposition to commit sex offenses and that he had serous difficulty in controlling such behavior. Respondent thereafter waived his right to a trial by jury on this issue.

Based upon the Court's extensive allocution of the Respondent, as well as the Court's review of both testimony and reports of a psychiatric examiner on behalf of the State and an independent psychiatric examiner retained by Respondent's counsel, the Court found both that Respondent was a sex offender with a mental abnormality and that he was in need of a regimen of strict and intensive supervision (SIST) as defined under MHL Article 10. The Court thereafter issued an Order directing the New York State Division of Parole to conduct a background investigation of the Respondent, in coordination with the New York State Office of Mental Health and the New York State Office of Mental Retardation and Developmental Disabilities, for the purpose of imposing a regimen of strict and intensive supervision and treatment tailored to the needs of the Respondent and the community in which he proposed to reside in Suffolk County.

Pursuant to the records of the Attorney General, Respondent began his SIST regimen, as approved by this Court, on April 14, 2008 pursuant to MHL §10.11. This SIST program included, inter alia, the requirement that the Respondent attend, participate in and complete a sex offender treatment program; that the Respondent attach an electronic surveillance device to his person (commonly referred to as a global positioning "GP" device); that the Respondent refrain from owning or driving an automobile; and that Respondent remain away from areas where children congregated.

Based upon the records provided to this Court, the Respondent was discharged from his sex offender treatment program on September 30, 2008 and Respondent removed his GP device and absconded from his residence on the same date. He was thereafter arrested on October 11, 2008 and incarcerated based upon the violation of

 

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the provisions of his parole. Since Respondent's actions in being discharged from his treatment program, removing his GP device, and absconding in an automobile all violated his conditions of SIST, the State applied to this Court for an order finding that Respondent is a dangerous sex offender requiring confinement under MHL §10.11 (d)(4). As Respondent's date for release from his incarceration, following the above described incident, approached, the Court ordered the reexamination of the Respondent by psychiatric examiners for the State and an independent psychiatric examiner chosen by Respondent's counsel and scheduled a hearing to determine whether Respondent should be afforded a new SIST program or be confined to a mental treatment facility based upon a finding that he presents a danger to the community, including the danger of commission of repeated sex offenses.

TESTIMONY

On January 13, 2013, the Court conducted a hearing, during which three witnesses testified. The Court had the opportunity to consider the exhibits presented, which included the reports of two psychiatric examiners and to weigh the credibility of the witnesses.

Parole Officer (P.O.) Pedro Torres testified on behalf of Petitioner. He stated that he currently works for the New York State Department of Corrections, and was formerly assigned to the Division of Parole. In that position, beginning in 2008, after the enactment of Article 10 of the MHL, P.O. Torres became a SIST Officer in the Nassau and Suffolk County region. He stated that his duties included supervision of persons assigned SIST, including reviewing with such persons their SIST provisions, installation of their GP bracelets, weekly meetings, and conversations with the coordinators of their treatment programs. He was assigned this role vis a vis Luis P. on April 23, 2008. He set forth that he went over all of the SIST requirements with the Respondent, including the requirement to report all sexual activities; to report his residence; to engage in appropriate treatment for his condition; as well as restrictions concerning locations where the Respondent was prohibited from placing himself. He told the Court that the Respondent had a 7 pm to 7 am curfew unless he obtained

 

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prior permission to remain outdoors; that he was constrained from placing himself in areas where children congregated such as schools and playgrounds; that he was prohibited from the use or ownership of motor vehicles without prior approval; and that he was required to attend and participate in a sex offender treatment program. P.O. Torres testified that he supervised the Respondent in these areas from April 23, 2008 through September 20, 2008.

The witness stated that he got the Respondent into a Spanish speaking treatment program. At one point, according to P.O. Torres, Respondent complained that he was afraid of the traffic going to and from his assigned program; and he therefore changed the time of the appointments to when traffic was less congested. P.O. Torres did follow Respondent at various times and became concerned when he witnessed the Respondent, stopped in front of the Department of Social Services building, looking at young children. He spoke with the Respondent and warned him not to remain with young children in sight and also spoke with Respondent's sex therapist about the same. Thereafter, the Respondent was administered a polygraph exam, but, according to the witness, Respondent's behavior during the exam prevented any results from being obtained. He was aware that Luis P. was obtaining benefits from DSS and that he made no contact with the children whom P.O. Torres saw in front of the building.

P.O. Torres stated that he found Respondent on a particular date at the Department of Motor Vehicles in Medford. Respondent told him that another resident, and not he, had obtained an automobile and gotten it registered; however, when the witness searched the Respondent's room, he found license plates and keys for such automobile and confiscated them. He reminded Respondent that he was not permitted to drive and attempted to determine whether the Respondent was lying to him. He regularly checked the GP device and on September 30, 2008, he got a signal that the GP device had been removed from the Respondent's person. In addition, P.O. Torres set forth that he learned from the treatment coordinator that Respondent was unwilling to share any information in treatment and had been removed from the program. When P.O. Torres arrived at the Respondent's residence he realized that the bracelet had indeed been removed and that the Respondent had

 

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absconded in the automobile in question. He is aware that Respondent was returned to custody in upstate New York.

Dr. Ronald Field, who has a PH.D. in clinical psychology and is a licensed clinical psychologist, testified as a psychiatric examiner, on behalf of the State. He set forth that since the enactment of MHL Article 10, he has conducted evaluations of Respondents under SIST and those accused of SIST violations. Dr. Field was qualified as an expert in forensic and clinical psychology by the Court. He testified that he conducted a psychological examination of the Respondent on June 12, 2012, in the presence of attorneys for the Petitioner and Respondent. Dr. Field reviewed the Criminal History Record Information report of the New York State Division of Criminal Justice Services (Petitioner's 3), the reports by P.O. Torres, pre-sentence investigation reports, monthly treatment summaries, two polygraph reports, records of the SIST violation incidents, reports by two independent psychiatric examiners [Drs. Scroppo and Bard(Respondent's A)], as well as the initial probable cause evaluation produced in this case by Dr. Rackley. Dr Field concluded that the Respondent has such a strong predisposition to commit sex offenses and such serious difficulty in controlling his behavior that he is likely to be dangerous to the community and to re-offend and commit further sex offenses if he is not confined to a mental health treatment facility.

Dr. Field set forth numerous discrepancies in the Respondents' statements to be highly relevant. For example, he stated that Respondent repeatedly denied that he had committed sex offenses and that he had never written a list of those children he had touched in an inappropriate manner; yet, he had in certain records admitted sexual touching and sexual thoughts regarding children. Respondent assertedly told Dr Field that to the extent he touched children such was completely accidental while he was playing with them. In reviewing Respondent's criminal records, Dr Field discovered that while Respondent was on parole in Florida, following incarceration for his first recorded sex offense, he absconded to New York, where he was arrested in 1997, following his arrest for three counts of sexual abuse. After serving the remainder of his Florida sentence, the Respondent assertedly returned to New York, where he was arrested and convicted of his third sexual offense, in 2001 regarding an

 

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eight year old girl and an eleven year old boy.

Dr. Field testified that he diagnosed Respondent with pedophilia, constituting a pattern of behavior and fantasy regarding children, which he had repeatedly admitted in various guilty pleas in criminal court proceedings as well as before this Court in the Article 10 Proceeding. However, he found that Respondent was not able to come to terms with his mental issues, that he was not truthful in any of his treatment programs, that he tried to beat the polygraph test that was taken during his SIST period, and that he had lied to the P.O. concerning his ownership of an automobile.

In addition, Dr. Field conducted a risk assessment known as Static 99r, which is used to measure certain constant risk factors, such as the subject's age, and the number of sex offense convictions. From this test, he gave the Respondent a score of "5", which he translates to a category of "moderate" risk of recidivism. According to Dr Field, dynamic factors, which take into account the recent behavior of a subject are more relevant than the statistical analysis, in determining the real risk of recidivism. He found the following dynamic factors to be highly relevant: 1)Respondent's attitude toward his past sexual behavior as being not harmful to children; 2) his ongoing sexual fantasies regarding children; 3) his inability to remain monitored via a GP device; and 4) his inability even to engage in a treatment program. Dr. Field did state that while incarcerated, Luis P. did engage in a treatment program between January and August 2012. He contacted the program provider who informed him that while the Respondent had completed the program, he had not yet achieved any strategies to alleviate the risk of relapse.

Dr. Leonard Bard, who has a PH.D. in psychology and has conducted over 1,000 forensic evaluations of sex offenders over the past six years, testified as an expert independent psychiatric examiner on behalf of Respondent. Like Dr. Field, he set forth that to make a true risk assessment of the dangerousness of a sex offender, an examiner should utilize both actuarial tools, such as the Static 99r test and dynamic risk factors. Like Dr. Field, Dr. Bard placed Luis P. in the "moderate" risk category based upon the actuarial test. However, he stated that the recidivism rate of

 

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sex offenders happens to be quite low. Thus, he stated that the estimated recidivism rate of a person with the Respondent's score is 11.4 percent. In an alternate actuarial test, he called the Multi Age Stratified Table of Recidivism, he stated that the recidivism rate of one with Luis P.'s history is 28 percent over a period of 8 years. Dr. Bard concurred with Dr. Field's diagnosis that the Respondent suffers from pedophilia. However, he opined that such does not necessarily make him dangerous and that it is necessary to examine dynamic factors, which are not static.

Dr. Bard conducted an in person interview with Luis P. on September 24, 2012. In addition, Dr. Bard reviewed Respondent's Criminal History Report, the prior psychiatric examination reports of Dr. Rackley and Dr. Field and the police report concerning the Respondent's SIST violations. He believed that it was significant that Respondent was not violent, even while he was under SIST. Dr. Bard disagreed with Dr. Field regarding the significance of the Respondent's denials and lack of participation in treatment programs and denial of certain aspects of his crimes as having any relation to the risk of re-offending and, therefore, dangerousness. It was his opinion that while Luis P. would benefit from therapy, which he states must be in Spanish so he can truly participate, the Respondent does not present a high risk of recidivism and, therefore, is not a danger to the community and that he does not need to be confined.

Dr. Bard set forth that, in his view, the reason the Respondent absconded did not relate to his risk of recidivism; but rather, to his panic after being discharged from his treatment program (for reasons that are unclear) and the issue regarding the automobile. There was no evidence, according to Dr. Bard, of any intent by Respondent to commit a sex offense. Thus, while he agreed that violations of the conditions of parole as well as acts, such as cutting off a GP device, are problematic and demonstrate poor judgment, they do not project a risk of recidivism. Dr. Bard believes that the Respondent is in need of SIST and could benefit from treatment; however, he does not consider the Respondent dangerous and a serious risk to the community.

When an Article 10 Respondent has been released into the community under a

 

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regimen of strict and intensive supervision, MHL §10.11 delineates the procedures that should be followed when the Division of Parole finds that the respondent has violated a condition of such regimen. As occurred in this case, the Division of Parole has the authority to take the respondent into custody immediately when it has reasonable cause to believe a respondent has committed such a violation. Thereafter, the Attorney General must petition the court either for confinement of the respondent or a modification of the terms of supervision and a judicial hearing must be held on such petition. MHL §10.11 (d-h); see, Matter of Donald N., 63 Ad 3d 1391, 881 NYS 2d 542 (3d Dep't 2009). Where evidence is presented that respondent engaged in certain high risk behaviors in violation of the SIST conditions, such may be sufficient to justify a finding of dangerousness requiring confinement. Matter of Donald N., supra. In fact, such may be the case even where the respondent's violations do not include engagement in sexually inappropriate conduct. Id. Moreover, a respondent's argument that more intense monitoring under SIST would be sufficient to control the respondent's behavior is undermined where evidence exists of Respondent's blatant disregard for the parole officer's authority and advice. Matter of State v. Donald N, supra.

This Court does not discount the significant issues rased by the independent psychiatric examiner; to wit, that the conditions set forth in many SIST programs, for convicted sex offenders, are so burdensome, that they are often destined to failure. However, the legislation enacting MHL Article 10 grants such determinations to the agencies that govern both mental health issues as well as those that deal on a daily basis with those on parole. In this case, this Court, in 2008, gave the Respondent an opportunity, over the State's vehement objection, to remain out of confinement, subject to monitoring and participation in a treatment program. The Court found credible the testimony of P.O. Torres, that he went out of his way both to find a Spanish language treatment program and to help Respondent with his issues regarding his travel times to avoid heavy traffic. Yet, the Respondent removed his global positioning device, giving him the ability to escape any monitoring; he persists in setting forth his tolerance for his sexual crimes even to the time of the 2012 interviews with psychiatric examiners; he persists in contradicting himself

 

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concerning his commission of sexual offenses and stating that they were accidental occurrences; he was terminated from his SIST sexual treatment program based upon his refusal to participate in such; and he clearly lied about his involvement with obtaining an automobile. Based upon all of the above, as well as the credible testimony of Dr. Field and the criminal records presented to the Court, it is this Court's opinion that the Petitioner has demonstrated, by clear and convincing evidence, that Respondent presents a danger to the community, including the danger of committing repeated sex offenses unless he is confined to a secure mental health treatment facility.

This constitutes the DECISION and ORDER of the Court. Submit Order, on notice, providing for commitment of Respondent to a secure treatment facility by the State Department of Mental Health.