People v S.S.

[*1] People v S.S. 2007 NY Slip Op 52178(U) [17 Misc 3d 1128(A)] Decided on November 6, 2007 Supreme Court, Schuyler County Garry, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 6, 2007
Supreme Court, Schuyler County

The People of the State of New York, Petitioner,

against

S.S., an individual under the supervision of New York State Division of Parole.



07-341

Elizabeth A. Garry, J.

Petitioner commenced this proceeding pursuant to the recently enacted provisions of Article 10 of the Mental Hygiene Law, the Sex Offender Management and Treatment Act, by filing a Petition in the Tioga County Clerk's Office on June 8, 2007. By Order to Show Cause on this date Mental Hygiene Legal Services was appointed as Counsel for Respondent. The Order scheduled a probable cause hearing in accord with MHL Section 10.06(g). Respondent's release from parole supervision was also stayed pending said hearing, in accord with MHL Section 10.06(h). Respondent thereafter filed a Notice of Removal to Schuyler County, the location of the underlying criminal sex charges, pursuant to MHL Section 10.06(b). This request was approved by Order dated June 27, 2007, with further proceedings adjourned pending the transfer. Respondent subsequently requested further adjournment, with the consent of the Attorney General. Pursuant to MHL Section 10.06(e) the Court appointed a psychiatric examiner, upon the application of Respondent and no objection by Petitioner, by Order dated August 15, 2007. Dr. Charles Patrick Ewing, Ph.D, was directed to evaluate Respondent and report his findings. On October 5, 2007, the Respondent was charged with parole violations and was brought into the custody of the Tioga County Sheriff upon these charges. Respondent sought relief by Petition for a Writ of Habeus Corpus. This request was denied and the Petition was dismissed following oral argument thereon conducted at the Schuyler County Courthouse on [*2]October 17, 2007. The parole hearing has been scheduled for a future date.

The probable cause hearing was conducted at the Schuyler County Courthouse on October 30, 2007. Respondent sought closure of the hearing and sealing of the records, pursuant to MHL Section 10.08(g), and this request was unopposed and granted. Two witnesses testified, Dr. Jennifer Berryman on behalf of Petitioner and Dr. Charles Ewing, the court-appointed expert, on behalf of Respondent. Upon request of the Court, the closing remarks were submitted by Counsel for each party in writing thereafter, by correspondence dated November 1, 2007.

REVIEW OF EVIDENCE AND TESTIMONY

In 1992, Respondent was convicted upon a jury verdict of Rape in the First Degree, in violation of Section 130.35(3) of the Penal Law, a felony; Sodomy in the First Degree in violation of Section 130.50(3) of the Penal Law, a felony; and Endangering the Welfare of a Child in violation of Section 260.10(1) of the Penal Law, a misdemeanor. (Exhibit 1). The convictions arose from his admitted penis to vagina and penis to anus intercourse with a six-year-old girl on one occasion in 1991. Respondent was 17 years of age at this time.

Respondent was incarcerated thereafter upon this conviction until early May of 2002, when he was released to parole supervision. He was charged with violations of the conditions approximately two months later. At the parole revocation hearing held in October 2002, several violations were sustained, specifically including engaging in prohibited contact with a 3-year-old boy on several occasions and falsely reporting that he had not had such contact upon inquiry of his parole officer. (Exhibit 4). Parole was revoked effective January 15, 2003. Respondent was re-incarcerated until late October, 2005, when he was again conditionally released to parole supervision. The maximum expiration of his sentence was June 10, 2007, two days following the date of filing of the instant Article 10 proceeding.

As briefly presented above, Respondent's release from parole supervision was stayed by the Order to Show Cause in this matter dated June 8, 2007. He was subsequently arrested and confined upon alleged parole violations on October 5, 2007. This Court denied Respondent's prior Petition for Habeus Corpus relief, finding that the conditions of parole remained in force and effect pending this probable cause hearing, by Order issued from the bench following oral argument on October 17, 2007, and in writing thereafter dated October 24, 2007. The parole hearing is pending, and no evidence regarding those allegations was presented in this matter.

Dr. Berryman has been a licensed clinical psychologist since 1997. She is not a Board-certified forensic psychologist, and has no particular educational background in that field. She has been employed with the Greater Binghamton Health Center since 1994 and has performed the duties currently ascribed to her position as "Chief Psychologist" at the facility since 2001. Her responsibilities involve performing risk assessments in the course of treatment rendered at the facility to sex offenders, and she has received on the job training in this position. She had minimal experience in testifying in court proceedings, and this was her first evaluation conducted in the context of an MHL Article 10 proceeding.

Based upon her review of documents, an interview with Respondent, and phone interviews with his counselor and probation officer, Dr. Berryman opined that Respondent met the diagnostic criteria of pedophilia as defined by the DSM-IV. As this diagnosis would be consistent with the statutory definition of a mental abnormality, (see MHL Section 10.03 [i]), she further testified that he met the criteria for designation as a "sex offender requiring civil [*3]management" (MHL Section 10.03 [q]). She testified that in her opinion, within a reasonable degree of certainty, Respondent poses a risk if released without ongoing supervision. She testified that her finding was based upon consideration of the seriousness and circumstances of the underlying offense, the differing accounts regarding the event offered by Respondent, and his parole violations, as the risk increases if supervision is disregarded, demonstrating an attitude that would create a higher potential risk of re-offending. In testimony allowed over objection Dr. Berryman described Respondent as"dishonest" in the course of his assessment interview, causing her increased concern. One instance she cited regarding his lack of candor involved his description of the time he would spend at his parents' home for the holidays. Respondent described that there would be no children present, but Dr. Berryman was familiar with the address and noted that he had failed to also advise her that the home is located very near a day care, a park, and two baseball fields, so that access to children was a real potential. She testified that the fact that he would withhold these facts was a matter of concern. While Dr. Berryman's report and her testimony on direct examination also referenced the use of actuarial instruments in rendering her risk assessment, in particular the STATIC-99, this testimony was discredited upon cross examination, as she lacked significant understanding of the instrument, and she failed to consider the results of a prior analysis based upon this same test which were markedly different, establishing that Respondent posed a low rather than moderate level risk.

Court-appointed expert Dr. Charles Ewing had a significantly stronger background in the field of forensic psychology. He is Board certified in that field, as well as dually licensed as an attorney and psychologist. (See vita, Exhibit B). Dr. Ewing also reviewed the various available documents, including both of the STATIC-99 assessments, and conducted a lengthier and more thorough personal interview with Respondent. Dr. Ewing concluded that Respondent does NOT meet the diagnostic criteria for pedophilia, as defined by the DSM-IV. Thus, without evidence of a "mental abnormality" as statutorily defined, and based upon proof of only the single sexual offense committed by Respondent at age 17, Dr. Ewing opined that he could not be considered a detained "sex offender requiring civil management". (See MHL §§ 10.03 [i] and [q]). Dr. Ewing was qualified to opine regarding the STATIC-99 actuarial instrument, and concluded that both tests properly viewed and analyzed would result in a recidivism risk in the "moderate low" or "low" category. He testified that this risk assessment was consistent with other actuarial instruments that he utilized in his review, specifically including the Vermont Assessment of Sex-Offender Risk, the Bays & Freeman-Longo Evaluation of Dangerousness for Sexual Offenders, and the Carich-Adkerson Victim Empathy Inventory.

There was considerable dispute at the hearing regarding an allegation of sexual misconduct relative to the three-year-old boy with whom Respondent was found to have been in contact during his initial period of parole supervision in 2002. The parole violation charges included an allegation that he had violated the law by placing his mouth upon the penis of this child. These charges were not approved by the Board for prosecution, and so there was no determination rendered relative to this charge. (Exhibit 4). Dr. Berryman considered this unproven report in the course of her assessment; Dr. Ewing did not, but stated on cross examination that if there were legally acceptable proof that Respondent had abused this boy it might change his opinion.

LEGAL ANALYSIS

The legal inquiry at this juncture is limited to determining upon the evidence produced at [*4]the hearing "whether there is probable cause to believe that the respondent is a sex offender requiring civil management". (MHL Section 10.06 [g]). Thereafter, if the State has not established probable cause, the petition shall be dismissed, and as Respondent's sentence has been completed at this time he will be under no continuing restrictions; if probable cause has been established the Respondent shall be committed and held at a secure treatment facility pending a jury trial to be conducted within sixty days.(MHL Sections 10.06 [k], 10.07 [a]). At trial the State will bear the burden of establishing by clear and convincing evidence that Respondent is "a detained sex offender who suffers from a mental abnormality" (MHL Section 10.07 [d]). The jury finding must be unanimous, and the court is specifically directed to instruct and admonish the jury "that the jury may not find solely on the basis of the respondent's commission of a sex offense that the respondent is a detained sex offender who suffers from a mental abnormality." (MHL Section 10.07 [d]).

The statute defines a "dangerous sex offender requiring confinement" as "a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility." (MHL Section 10.03 [e]). A "mental abnormality" is further defined as "a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct."(MHL Section 10.03 [i]).

The State's proof in this matter relative to Respondent's "mental abnormality" was weak. Both of the experts testifying in this regard referenced the diagnosis of "pedophilia", and agreed that the criteria for this diagnosis are as established by reference to the DSM-IV. The established definition of this condition involves findings over a period exceeding six months of "recurring intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children", and further, the"fantasies, sexual urges, or behaviors" must cause significant distress or impairment of function. Respondent established on cross examination that the State's witness failed to inquire or consider Respondent's fantasies or urges. Her evaluation was essentially based upon his behavior in committing the underlying offense and parole violations, and her clinical evaluation based upon experience in the field, with extremely limited reliance upon actuarial instruments, as she lacked any significant training in the use of the primary instrument referenced in her report, the STATIC-99.

Conversely, as the Attorney General effectively established on his cross examination of Dr. Ewing, this expert apparently placed great reliance upon the Respondent's own description of events in his interview, and did not thoroughly review or investigate Respondent's claims for accuracy and validity.

As Petitioner argues, Respondent has spent such a significant period in incarceration that there is little evidence of his conduct in the community. It is certainly of concern that within approximately two months of his initial release to parole, he violated the conditions by being in prohibited contact with a young child - and was then dishonest when confronted by his parole officer. Taken together with Dr. Berryman's testimony regarding Respondent's failure to advise that there was a park, day care and ball field in the immediate proximity of the residence at which he plans to spend the holidays, there is evidence in the record before this Court that [*5]Respondent may seek an opportunity for further sexual offense.

The determination in this matter must, at this juncture, be made without reference to the unproven allegation of a sexual offense in 2002. There was no direct evidence presented at the hearing in this matter. As this claim was never prosecuted no legal finding has been made relative to the sufficiency of the proof, but it would be most inappropriate for this Court to consider a wholly unsubstantiated accusation in the absence of any witness testimony.

In light of all the above, the determination in this matter rests largely on the current procedural context. The statute expressly directs that this stage of review is governed by a "probable cause" standard. This standard is not independently defined within Article 10, but in the existing statutory and case law in the context of criminal procedure and arrest it is viewed as a relatively low burden. The term "reasonable cause" is generally accepted as a substitute definition. (See, CPL Section 70.10(2); Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 70.10; Matter of Junco, 16 Misc 3d 327, 329 [Supreme Court, Washington County 2007]). In the context of arrest, probable cause is defined as a "practical, non-technical conception" dealing with probabilities and depending on the totality of the circumstances. (Maryland v. Pringle, 540 US 366, 371 [2003]). In enacting this Act, the Legislature chose to subject these cases to a prompt but not weighty judicial review at the threshold, with a substantially higher burden of proof imposed in subsequent proceedings.

While, for the reasons outlined above, the proof developed at this hearing might not meet a preponderance of the evidence standard, it was sufficient to establish reasonable or probable cause to believe that Respondent suffers from the condition of pedophilia and that this predisposes him to conduct constituting a sex offense. In particular, as above, the parole violations established in 2002 within approximately two months of release upon supervision and the State expert's assessment of his dishonesty, considered in light of all of the evidence, including the circumstances of his initial offense, are sufficient to support a finding of probable cause that Respondent is a sex offender requiring civil management. [*6]

A trial to be conducted pursuant to MHL § 10.07 shall be scheduled by the Court within sixty (60) days. A further conference to determine the date of the trial and to review other pre-trial matters, including where Respondent shall be detained pending completion of the trial, shall be held by phone on November 13, 2007, at 10:00 a.m. Pending further determination following the conference Respondent shall continue in the custody of the Tioga County Sheriff.

Dated:

Norwich, New York

ENTER__________________________________________

Hon. Elizabeth A. Garry

Justice of the Supreme Court

To:

Hollie S. Levine, Esq.

Mental Hygiene Legal Service

State of New York, Supreme Court,

Appellate Division, Third Judicial Department

44 Hawley Street, 16th Floor

Binghamton, New York 13901-4435

Geoffrey B. Rossi, Assistant Attorney General

Office of the Attorney General

Binghamton Regional Office

44 Hawley Street, 17th Floor

Binghamton, New York 13901

Rita Decker, Schuyler County Supreme and County Court Chief Clerk, original Decision and Order.