New York Criminal Lawyer Blog
In 1998, respondent was charged in two criminal indictments with breaking into four different homes and attempting to rape or sexually abuse the female occupants of each. In January 2000, he entered guilty pleas under both indictments in exchange for concurrent sentences of eight years imprisonment in each case. Specifically, respondent pled guilty to Burglary in the Second Degree and Sexual Abuse in the Second Degree and pled guilty to Burglary in the Second Degree and Sexual Abuse in the First Degree, and the promised sentences were subsequently imposed. The victim in one of the cases was a five-year old girl.
A Nassau County Sex Crime attorney said that at the probable cause hearing, petitioner presented the testimony of a psychiatrist licensed to practice in the State of New York since 1974. According to the reports of the psychiatrists who evaluated him, respondent suffered from severe physical and sexual abuse as a child, and eventually began to use and abuse marihuana. Before being convicted of the felonies that led to his lengthy incarceration, respondent was arrested various times for indecent exposure. The certificates of conviction introduced into evidence at the hearing confirm that, in addition to the felonies described above, respondent was convicted of Criminal Possession of Marihuana in the Fifth Degree, Public Lewdness, and Public Lewdness and Exposure of a Person.
The psychiatrist has known respondent since October 2005, when respondent was first civilly confined at the hospital after being incarcerated. In addition, he interviewed and evaluated respondent and reviewed several documents in connection with the evaluation: respondent’s medical records, respondent’s pre-sentence report, respondent’s criminal history, and the reports of the other psychiatrists who had evaluated respondent. The psychiatrist relied on these materials in diagnosing respondent, and testified that mental health professionals regularly rely upon such materials in diagnosing and treating psychiatric disorders.
The psychiatrist opined that respondent had great difficulty controlling his behavior, and would be likely to commit sexual offenses in the future if not confined to a secure treatment facility and also opined that respondent would pose a danger to others if he was treated in a community-based or outpatient setting. In rendering his opinion, he was influenced by respondent’s refusal to take the medication prescribed for his bipolar disorder and his refusal to participate in a program for sexual offenders at the hospital. The doctor also considered respondent’s failure to complete a program for sexual offenders while incarcerated and his documented history of mental illness, his sexual abuse of others, and his acts of exhibitionism.
The reports of the other psychiatrists who evaluated respondent, while differing to some degree in their assessments of respondent’s condition, are consistent in documenting respondent’s long history of mental illness, sexual abuse of others, and substance abuse. The reports suggest that, with the exception of his recognition that it was wrong for him to touch the little girl inappropriately, respondent tended to deny or otherwise minimize responsibility for the conduct that led to his incarceration in the first place.
The Court finds that there is probable cause to believe that respondent not only is a sex offender requiring civil management, but also is sufficiently dangerous to justify his continued confinement pending the trial of this case. To the extent that respondent suggests that the Legislature’s use of the phrase “probable cause” in the statute was intended to signal that the Court should apply something akin to a preponderance standard or anything more stringent than the time-honored and familiar test of reasonable cause, The ruling judge rejected his position.
To support his view, respondent cites to language in the Court of Appeals’ decisions where the Court essentially held that police officers cannot make a lawful arrest during a street encounter based upon nothing more than an observation that a person with disheveled clothes and “frizzled” hair is carrying a paper bag and cannot accurately state the brand name of the radio he is carrying. In reaching that conclusion, the Court suggested that a police officer cannot justify an arrest simply by acting reasonably; instead, the Court remarked, “we consistently have made it plain that the basis for such a belief must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice.” In another case, the Court considered the question whether the presence of two men in a single bathroom stall without any evidence of a wheelchair or other indicia of a person needing assistance could justify an officer’s peering into the space through an adjoining stall.
Had the Legislature meant to employ a standard more stringent than “probable cause” in Section 10.06(g) it would have said so; the Court must construe the statute according to the words that the Legislature used.
Accordingly, the question here is whether the petitioner elicited sufficient information to supply the Court with sufficient information to give rise to a reasonable belief that the respondent is a sex offender requiring civil management and that he is sufficiently dangerous to require confinement rather than a lesser condition of supervision pending the trial.
The petitioner has made the requisite showing. See MHL ยงยง 10.06(g), 10.03(q), 10.03(e), 10.03(r). First, there is ample reason to conclude that respondent is a detained sex offender; the record demonstrates that he was convicted of sex offenses and committed sexually-motivated felonies within the meaning of the statutes. Second, there is probable cause to conclude that respondent suffers from mental abnormalities. Specifically, the psychiatrist’s testimony demonstrates that respondent suffers from exhibitionism, antisocial personality disorder, bipolar disorder and an otherwise unspecified form of paraphilia. Moreover, those conditions, according to the psychiatrist, constitute a mental abnormality that affects respondent’s emotional, cognitive or volitional capacity in a manner that predisposes him to the commission of a sex offense and results in serious difficulty in controlling such conduct. Indeed, the doctor’s testimony, especially when considered with the reports of the other psychiatrists, demonstrates that there is ample probable cause to believe that respondent’s mental abnormality gives rise to such a strong predisposition to commit sex offenses that he is unable to control his behavior. Respondent’s criminal history, his history of mental illness, his high scores on both the Static 99 and MNSOST-R tests, and his alleged conduct while confined at MPC including his alleged masturbation in front of a nurse all show that respondent has lacked, and continues to lack, the ability to control himself.
The Court also concludes that there is ample probable cause to believe that respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility pending trial. Respondent’s criminal history demonstrates his capacity to commit dangerous acts, and there are forceful reasons to believe that he would pose a significant danger to the community if not confined pending trial. First of all, respondent is not taking his prescribed medication. Second, he is not currently participating in a sex offender program. Third, he did not complete a sex offender program while incarcerated. Fourth, he is alleged to have masturbated in front of a nurse, has reportedly had multiple outbursts while confined at MPC, and supposedly walked around in an open bathrobe at least once, potentially exposing himself while in the facility. Finally, and even more significantly than those disputed events, both the psychiatrist and the other professionals who proffered opinions about respondent’s risk of re-offending all agree: he falls on the high end of the scale for sexual recidivism. The psychiatrist also opined that respondent should be treated in a secure facility because he would pose a danger to the public if treated in an outpatient or community-based setting.
For the foregoing reasons, the Court finds that there is probable cause to believe that respondent is a sex offender requiring civil management and that he is sufficiently dangerous to require confinement because there are no lesser conditions of supervision that will suffice to protect the public during the pendency of the proceedings.
Accordingly, it is hereby ORDERED that respondent is committed to a secure treatment facility designated by the Commissioner of Mental Health for care, treatment and control upon his release.
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