A New York Criminal Lawyer said that, the respondent is a 36–year–old convicted sex crime offender whose first conviction for a sexual offense occurred in 1990 when he raped and sodomized a 4–year–old girl whom his mother was babysitting. He pleaded guilty to rape in the first degree and was sentenced to a prison term of 1 to 3 years.
A New York Sex Crimes Lawyer on January 23, 2001, the respondent was arrested and charged with multiple counts of deviate sexual intercourse with a person under age 11, sodomy and sex abuse. He pleaded guilty to two counts of sex abuse in the first degree involving sexual contact with his girlfriend’s 7–year–old daughter and forcing an 11–year–old girl to undress and allow him to fondle her breasts and vagina. The 2001 rape and sodomy came to light when the younger victim told her mother that she knew about sex because the respondent had forced her into numerous sexual activities, including putting his penis in her mouth and forcing it into her rectum. An investigation determined that between July 1, 2000 and August 31, 2000, the respondent subjected the victim to numerous forms of sexual contact against her will; during the same period, on at least three occasions, he forced a second child to undress and fondled her breasts and vaginal area. In subsequent sex offender counseling, the respondent admitted to the activity, and said he “groomed” the victims by buying them things and that he “fantasized” about them getting naked and in sexual positions; he said his “excuse” was that the older victim was a “big boned girl” who was “ready for sex” and the younger one was “getting there too so it’s ok for her too.” He was sentenced on March 2, 2001 to a term of 5 years to be followed by 5 years’ post-release supervision.
A New York Criminal Lawyer said that, after the respondent was released to parole supervision on June 17, 2005, he absconded to Florida and tampered with his electronic monitoring unit, resulting in his parole being revoked on August 15, 2006. The respondent was returned to custody to complete his sentence. The respondent’s scheduled release date of January 23, 2011 brought him within the purview of Article 10 in October 2010.
The issue in this case is whether the Supreme Court erred in ordering the unconditional release of the respondent, based on a finding that the pretrial civil detention provisions mandated by MHL § 10.06(k) are facially unconstitutional.
Article 10 forms the basis of SOMTA, enacted by the Legislature, effective April 13, 2007. The statute was based on legislative findings “that some offenders have mental abnormalities that predispose them to engage in repeated sex offenses.” The Legislature’s concern was that “recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management.” “Civil management” means either commitment to a secure psychiatric facility, or management in the community under the supervision of the division of parole. The second option is known as strict and intensive supervision and treatment (hereinafter referred to as “SIST”). Drug possession was not involved.
When a detained sex offender is nearing release, the agency with jurisdiction over the offender is required to give notice of the anticipated release to the Attorney General and the Commissioner of Mental Health. The Commissioner is authorized to designate a multidisciplinary staff that will make a “preliminary review” of the need for civil management and whether to refer the person to a case review team.
A New York Criminal Lawyer said that, after the respondent was released to parole supervision on June 17, 2005, he absconded to Florida and tampered with his electronic monitoring unit, resulting in his parole being revoked on August 15, 2006. The respondent was returned to custody to complete his sentence. The respondent’s scheduled release date of January 23, 2011 brought him within the purview of Article 10 in October 2010.
The issue in this case is whether the Supreme Court erred in ordering the unconditional release of the respondent, based on a finding that the pretrial civil detention provisions mandated by MHL § 10.06(k) are facially unconstitutional.
Article 10 forms the basis of SOMTA, enacted by the Legislature, effective April 13, 2007. The statute was based on legislative findings “that some offenders have mental abnormalities that predispose them to engage in repeated sex offenses.” The Legislature’s concern was that “recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management.” “Civil management” means either commitment to a secure psychiatric facility, or management in the community under the supervision of the division of parole. The second option is known as strict and intensive supervision and treatment (hereinafter referred to as “SIST”). Drug possession was not involved.
When a detained sex offender is nearing release, the agency with jurisdiction over the offender is required to give notice of the anticipated release to the Attorney General and the Commissioner of Mental Health. The Commissioner is authorized to designate a multidisciplinary staff that will make a “preliminary review” of the need for civil management and whether to refer the person to a case review team.
If the preliminary review results in referral to a case review team, the team must review relevant medical and other records, and may arrange for a psychiatric examination. MHL § 10.05(e). If the case review team finds that a respondent is a sex offender requiring civil management, it must notify the respondent and Attorney General. MHL § 10.05(g). The Attorney General then may file a sex crimes offender civil management petition.
Within 30 days after the filing of a civil management petition, the court is required to conduct a hearing without a jury to “determine whether there is probable cause to believe that the respondent is a sex crimes offender requiring civil management.” If the court finds “there is probable cause to believe that the respondent is a sex offender requiring civil management,” it must order that the respondent be committed to a secure treatment facility designated by the Office of Mental Health (hereinafter referred to as “OMH”) for care, treatment and control. The court is also required to set a date for a jury trial, to be conducted within 60 days after the probable cause determination, and “the respondent shall not be released pending the completion of such trial.”
Subsequently, if, at trial, a jury finds that the respondent is a sex offender suffering from a mental abnormality, then the court determines the appropriate disposition at a hearing. It “shall consider whether the respondent is a dangerous sex offender requiring confinement or a sex offender requiring strict and intensive supervision.” Additional evidence may be offered on that issue by both the respondent and the Attorney General.
Civil commitment to a secure treatment facility is required if the court finds, upon clear and convincing evidence, that the respondent “has a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.” If the court does not so find, it must make a finding of disposition that the respondent is a sex offender requiring SIST. The determination is based on consideration of the conditions that would be imposed under SIST, and all available information about the prospects for the respondent’s reentry into the community. A weapon was not used.
On appeal, the respondent does not assert more. He argues, inter alia, that MHL § 10.06(k)’s mandatory detention provision is unconstitutional as applied to him because he belongs to that class of sex offender that may ultimately be found suitable for SIST, that the evidence before the hearing court indicated that he could be “safely” released on conditions pending trial, and thus that the Attorney General failed in sustaining its burden of proving that less restrictive alternatives would not suffice to protect the community from him. Therefore, the respondent argues, the provision offends the due process guarantees of the Federal Constitution, and violates the New York State Constitution’s guarantee that mental health patients be treated in the “least restrictive alternative setting.”
We confine our analysis to the respondent’s assertion that the statute is unconstitutional as applied to him as well as to that criminal category of Article 10 sex offender who, at disposition, may be approved for release into the community under SIST. The respondent argues that if he and others like him are found not sufficiently dangerous to warrant confinement post trial and disposition, then they are not sufficiently dangerous to warrant detention pre-trial. Thus, he asserts, the provision is not narrowly tailored to effectuate the government’s objective of protecting the public from him and those like him. We disagree.
Any view that there are dangerous and non-dangerous Article 10 sex offenders, or that there is no judicial determination of dangerousness at the probable cause stage is based on an essential misreading of the statute. The statute is clear that a “‘sex offender requiring civil management’ means a detained sex offender who suffers from a mental abnormality.”
The fact that a sex offender requiring SIST is defined as “a detained sex offender who suffers from a mental abnormality but is not a dangerous sex offender requiring confinement” is not to be interpreted to mean a sex offender who is not dangerous at all. Rather, it should be interpreted to mean a sex offender who is not dangerous to the extent where his dangerousness must be managed by confinement. Indeed, Article 10’s procedures are designed to winnow out the most dangerous of the dangerous sex crimes offenders where “confinement will need to be extended by civil process.”
The respondent’s claim that the New York State Constitution mandates that mental health patients must be treated in the “least restrictive setting,” and that Article 10 is unconstitutional because it fails to do so, is without merit. The statute states clearly that sex offenders in need of civil management are a different population from traditional mental health patients. As the court below specifically found, “mental abnormality” as used in the statute at issue has no medical validity. Rather, it is a legal term containing an inherent meaning of dangerousness. Thus, while Article 10 aims to treat the sex offender, it was nevertheless primarily enacted to protect the community from high risk sex offenders and, as in other statutes designed for the protection of the community, to “remove the offender from the arena of possible action.”
Finally, we do not agree with the respondent that the issue of constitutionality as applied to him will be moot upon his dispositional hearing. The respondent’s mootness argument is based on the view that once a disposition is made, this Court would no longer need to decide whether the Attorney General sustained his burden of establishing that lesser conditions than confinement would not suffice to protect the public in the respondent’s case. However, the issue raised by the respondent’s as-applied challenge—and determined here in the negative—is whether the Attorney General has that burden at all with regard to Article 10 sex offenders. In that sense, it is a challenge the Attorney General is certain to face again from sex offenders in the same category as the respondent, or those where the propriety of SIST is immediately apparent. Moreover, the temporary nature of pretrial detention makes it unlikely that the constitutional issue will be decided before a respondent’s dispositional hearing. Hence, as an issue likely to arise in other cases, but likely to evade review, it meets the exception of mootness.
This Court now finds that Supreme Court erred in attempting to make such a determination. We therefore reverse, on the law, vacate the order of the respondent’s unconditional release, and order the respondent returned to detention pending completion of disposition pursuant to the Sex Offender Management and Treatment Act (hereinafter referred to as “SOMTA”). 1 Additionally, we reject the respondent’s argument on appeal that the statute is unconstitutional as applied to him and those criminal sex offenders who may ultimately be under arrest and approved for civil management under strict and intensive supervision and treatment, a less restrictive alternative to confinement.
Accordingly, the order of the Supreme Court, Bronx County entered on or about August 10, 2011, which, upon finding that the pre-trial detention provisions of MHL § 10.06(k) are facially unconstitutional and ordered petitioner to immediately release respondent without supervision, should be reversed, on the law, without costs, the order for the respondent’s unconditional release vacated, and the matter remanded for proceedings consistent with this decision and order.
If you are involved in a similar situation seek the help of a New York Criminal Attorney and New York Sex Crime Attorney at Stephen Bilkis and Associates. Call us now.