Matter of State of New York v Sanchez
Annotate this CaseDecided on February 18, 2009
Supreme Court, Richmond County
In the Matter of the Application of The State of New York, Petitioner,
against
Ralph Sanchez, Respondent.
80341/2008
Appearance of Counsel:
Petitioner:Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Cheryl Henderson, Esq.
Assistant Attorney General
Respondent:Bruce Harris, Esq.
Associate Attorney
Mental Hygiene Legal Service
Robert J. Collini, J.
This written Decision and Order supplements the oral, on-record Decision and
Order, issued by this Court on January 9, 2009, as well as the written Securing Order, dated
January 9, 2009.
The Court has heard the testimony of the sole witness - Dr. Joel Lord - who testified on January 6, 2009 and January 9, 2009. After hearing his testimony and [*2]observing Dr. Lord's demeanor, the Court finds him credible in all respects. The Respondent introduced some documentary exhibits on the Petitioner's case. He did not present any witnesses and rested immediately after the Petitioner rested. Further, the Court has considered the oral arguments presented by both parties on January 9, 2009.
Based upon Dr. Lord's testimony, the Court finds that the definition of a "sex offender requiring civil management," set forth in Article 10 of the Mental Hygiene Law (see, MHL 10.03 [q]), has two elements: (1) Respondent is a detained sex offender; and (2) Respondent suffers from a mental abnormality as defined by MHL 10.03 (i).
Dr. Lord's qualifications as an expert in the field of psychology have been established. He has made an evaluation of the Respondent and has presented his opinion that the Respondent has the following diagnoses as defined by the DSM-IV-TR [FN1] (4th ed.): (1) Axis I, Criteria 4: pedophilia and alcohol dependence; and (2) Axis II: mild mental retardation. His opinion is based on various tests; statistical studies; a review of various records, which include Static 99 and MnSoST-R results; as well as a ninety-minute personal interview. He concluded that the Respondent suffers from a mental abnormality as defined in Article 10 of the Mental Hygiene Law.
Therefore, the Court finds that the Petitioner has provided sufficient evidence to establish
probable cause that the Respondent suffers from a mental abnormality. The foregoing, coupled
with the finding that he is a detained sex offender, leads to the conclusion that probable cause
has been established that the Respondent is a "sex offender requiring civil management."
Pretrial Detention/ "Independent Finding of Dangerousness'"
Pursuant to Article 10 of the Mental Hygiene Law (MHL 10.06 [k]), the Court now looks at the issue of whether detention pending trial versus a lesser condition of supervision in accordance with the decision by the United States District Court in Mental Hygiene Legal Services v. Spitzer [FN2], 2007 U.S. Dist. LEXIS 85163 (S.D.NY, November 16, 2007) is appropriate.
Based upon counsels' arguments of the evidence presented, the Court finds that the Respondent is "dangerous" and that a lesser condition of supervision would not suffice during the pendency of these proceedings.
The definition of "dangerous" according to Blacks Law Dictionary is "attended with risk; perilious; hazardous; unsafe." In the case of Rosenfield v. Overholser, 262 F.2d 34 (DC Cir 1958), the court found the definition of "dangerous" to include a reasonable foreseeability of danger to patients or the community. The same court in the seminal case of Cross v. Harris, 418 F.2d 1095 (DC Cir 1969), established a three-prong test to be addressed by an expert's testimony: (1) the likelihood or recurrence of sexual misconduct; (2) the likely frequency of any such behavior; and (3) the magnitude [*3]of harm to other persons that is likely to result.
Accordingly, the Court finds that there is probable cause to believe that all prongs of the "Harris test" have been met and the Respondent is sufficiently dangerous to require confinement, and that lesser conditions of supervision will not suffice to protect the public during the pendency of these proceedings.
Although this Court has rendered an independent finding that the Respondent is "dangerous" and requires confinement, it also concurs with the reasoning set forth in People v. Brooks, 19 Misc 3d 407 (Sup Ct, Kings County 2008, Mullen J.) and holds that there is no separate finding of "dangerousness" required in the probable cause phase under Article 10 of the Mental Hygiene Law.
In Brooks the court held - as does this Court - that it need not consider itself bound by the United States District Court's decision in Short that requires an independent probable cause finding of dangerousness. Neither is this Court of the opinion "that a separate and distinct finding of dangerousness is somehow implicit in the probable cause phase of Article 10." 19 Misc 3d at 413. To hold otherwise would amount to a blatant disregard of a basic rule of statutory construction, which is to give a statute its plain meaning. Id., citing McKinney's Cons Laws of NY, Book 1, Statutes § 94. Neither MHL 10.06 (k), nor any other related statute, specifies that a court must make a separate finding of dangerousness at the probable cause stage. 19 Misc 3d at 413.
It is impossible to countenance the notion that an independent finding of dangerousness is required in so far as that notion would necessarily suggest "that a person who is predisposed to commit a sex offense and has serious difficulty in controlling his conduct has the probability of not being dangerous." Id.
However, for the same reasons enumerated by the Brooks court, this Court has
separately considered the issue of dangerousness.
Pretrial Detention Finding - Burden of Proof
Respondent has advanced the argument that the probable cause standard should not apply to the issue of whether Respondent is dangerous as defined in Short. Respondent argues that a standard of "clear and convincing evidence" should apply to the issue of dangerousness at the probable cause stage mirroring the evidentiary standard that the Court must apply during the dispositional phase. MHL 10.07 (d). This argument is unavailing.
If the "clear and convincing" standard is applied at the probable cause stage it would render the dispositional phase moot. (Would Respondent be entitled to litigate his dangerousness again, or would the Court's determination be the law of the case?)
In addition, such a finding has the potential to cause an absurd result, i.e., the Court could find that Respondent is dangerous by clear and convincing evidence and a jury could subsequently find that Respondent has no mental abnormality by clear and convincing evidence. This scenario is possible because the Court must hear evidence of statistical recidivism rates as well as Respondent's scores on various risk assessment tools such as the Static 99 and MnSoST-R. During the trial to determine mental abnormality the jury does not hear such evidence: its consideration is to [*4]diagnostic issues and their relationship to predisposition to commit sex offenses. Thus, the statute would become unworkable.
Moreover, related pretrial confinement statutes support the application of the probable cause standard to the issue of dangerousness during the initial probable cause phase of the proceeding.
As discussed at great length in Brooks, the definition of "probable cause" under the
Mental Hygiene Law is no different than that found throughout all other laws, i.e., "reasonable
cause to believe." New York law has recognized the probable cause standard for pretrial
detention in criminal matters. Although "dangerousness" or "danger to the community" is not
ordinarily an independent criterion for a New York State court's determination of pretrial
detention, an exception is embodied under CPL 530.60:
Whenever in the course of a criminal action or proceeding a defendant charged with
the commission of a felony is at liberty as a result of an order of recognizance or bail . . . it shall
be grounds [to revoke bail and remand the defendant to custody pending trial where] the court
finds reasonable cause to believe the defendant committed one or more specified class A
or violent felony offenses or intimidated a victim or witness . . . A transcript of testimony taken
before the Grand Jury upon presentation of the subsequent offense shall be admissible as
evidence during the hearing" [emphasis added] (CPL 530.60 [2][a]).
In light of the above, not only did the Legislature specify that defendants in criminal cases may be detained prior to trial based on a "reasonable cause" standard, it permits testimony that was not subjected to cross-examination (i.e., Grand Jury testimony) to be introduced as evidence at a bail revocation hearing. Thus, the Respondent's argument that a standard greater than probable cause (i.e., clear and convincing evidence) should be applicable in the determination of "dangerousness" is unavailing when a lesser standard is constitutionally permitted in a criminal action.
Pursuant to MHL 10.07 (a), Respondent shall be committed to a secure treatment facility designated by the Commissioner for care, treatment and control and that the Respondent shall not be released from placement pending the completion of such trial. Further, the Respondent shall be provided with a transcript of the proceedings pursuant to CPLR 1102 (b), and the court record of these proceedings shall be sealed by the Richmond County Clerk's Office and will be only made available to the parties to these proceedings or upon further Order of this Court.
This constitutes the decision, opinion and order of the Court.
__________________________
Dated: February 18, 2009J. S. C.
Staten Island, New York
[*5]
Footnotes
Footnote 1: Diagnostic and Statistical
Manual of Mental Disorder (American Psychiatric Association, 4th ed.).
Footnote 2: This case is commonly referred
to as "Short," which reflects the name of the second plaintiff.
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