Matter of Glenn T. v State of New York
Annotate this CaseDecided on December 20, 2016
Supreme Court, Oneida County
In the Matter of the Application for Discharge of Glenn T., Consec. No. 18134, from Central New York Psychiatric Center, Pursuant to MHL § 10.09, Petitioner
against
The State of New York, The New York State Office of Mental Health, and The New York State Department of Corrections and Community Supervision, Respondents.
CA2015-001819
For the Petitioner:
Mental Hygiene Legal Service
Fourth Judicial Department
Emmett J. Creahan, Director
By: Stephen C. Clark, Esq.
Staff Attorney
For the Respondents: State of New York
Office of the Attorney General
Eric T. Schneiderman, Esq., Attorney General
By: Christopher W. Schlecht, Esq.
Assistant Attorney General
Louis P. Gigliotti, J.
In this proceeding, Glenn T. has petitioned for discharge from civil confinement at Central New York Psychiatric Center (CNYPC) after having received an annual written notice from the Commissioner of the New York State Office of Mental Health (OMH), pursuant to Mental Hygiene Law § 10.09.
The task of the Court is to consider the expert testimony presented in the written reports and articulated through testimony from the State's expert, Dr. Kevin Burgoyne, and the [*2]independent expert, Dr. Leonard Bard, to review the exhibits received into evidence, and to evaluate whether Glenn T. suffers from a "mental abnormality" as that term is defined in Mental Hygiene Law § 10.03(i), and if so, whether he is a "dangerous sex offender requiring confinement," as that term is defined in Mental Hygiene Law § 10.03(e). Although Glenn T. filed the petition for discharge, the State bears the burden of showing by "clear and convincing evidence" that Glenn T. fits within these definitions.
As defined in Mental Hygiene Law § 10.03(i), a "mental abnormality" is "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 controlling such conduct." In this case, after conducting an interview and reviewing records, Dr. Bard concluded Glenn T. does not suffer from a mental abnormality because he assigned a singular diagnosis of Antisocial Personality Disorder (ASPD). The Court of Appeals held in Matter of State of New York v. Donald DD., 24 NY3d 174 [2014], that ASPD is an insufficient basis upon which to find mental abnormality when presented only with evidence of past sex crimes.
While Dr. Burgoyne also assigned a singular diagnosis of ASPD, he did add that Glenn T. meets the criteria for the condition of psychopathy. The First Department has held that a factfinder is to determine whether ASPD and psychopathy can support a finding of mental abnormality after hearing expert testimony. (See Matter of State of New York v. Jerome A., 137 AD3d 557 [1st Dept 2016]). The Fourth Department likewise found the State had presented sufficient evidence to withstand a motion for directed verdict in a case where the respondent was diagnosed with only ASPD and psychopathic traits. (See Matter of Suggs v. State of New York, 142 AD3d 1283 [4th Dept 2016]).
Counsel for Glenn T. tried to distinguish these cases on the basis that they involved lesser burdens of proof than the clear and convincing standard used in article 10 review cases. The Court does not follow this logic. While true that Jerome A. was an appeal from a probable cause hearing, the factfinder to which the Appellate Division was deferring would be the factfinder at a trial on the issue of mental abnormality, which pursuant to Mental Hygiene Law § 10.07(d) incorporates the clear and convincing standard. If ASPD combined with psychopathy, as a matter of law, was an insufficient basis upon which to find mental abnormality, there would have been no need for the Jerome A. matter to proceed to trial regardless what standard of proof was employed. Likewise, Suggs reversed a directed verdict and remanded an article 10 annual review case for further proceedings before the factfinder. In particular, the Fourth Department reversed the lower court's findings that ASPD with psychopathic traits could not, as a matter of law, constitute a mental abnormality. Consequently, even though the evidence on a directed verdict was to be viewed in a light most favorable to the State, the weight of the evidence would have no bearing if the sufficiency of ASPD and psychopathy could be dispensed with summarily as a legal issue. Moreover, with Suggs involving an annual review hearing, the standard of proof on remand would be the same as in Glenn T.'s case.
During summation, counsel for Glenn T. called attention to Matter of State of New York v. Kevin J., an unpublished decision issued on November 14, 2016 in Kings County Supreme Court. Kevin J. however, does not stand for the general proposition that ASPD and psychopathy are legally insufficient diagnoses for mental abnormality. The respondent in that case was [*3]diagnosed by both state experts with ASPD and alcohol use disorder. One of the experts also diagnosed other specified disruptive impulse control and conduct disorder along with narcissistic personality disorder, whereas the other expert's additional diagnosis was psychopathy. The Court found the State sufficiently linked these diagnoses and conditions to the element of predisposition to commit sex offenses. Where the State's evidence fell short was with respect to proving the respondent currently had serious difficulty controlling his sex offending behavior. The Court considered the evidence in this regard to be focused too heavily on past conduct. Kevin J. appears to stand more for the proposition that the factual circumstances in each article 10 proceeding must be considered carefully in making a determination as to whether a mental abnormality exists, than it does about the legal sufficiency of ASPD plus psychopathy.
This Court acknowledges that in Matter of State of New York v. Kevin F., 51 Misc 3d 911 [Sup Ct, Kings County 2016], the trial court dismissed an article 10 proceeding on the basis that ASPD plus psychopathy did not surpass the Donald DD standard. Nevertheless, this Court considers itself bound to the precedent established by the Fourth Department in Suggs. This Court also finds interesting the reasoning set forth in Matter of State of New York v. Gary K., 53 Misc 3d 1207[A] [Sup Ct, NY County 2016]. In Gary K., the trial court understood Kevin F. to draw a distinction between predicting sexual recidivism based upon psychopathy alone as opposed to psychopathy with indicia of sexual deviancy. The Gary K. Court focused on the evidence presented in that particular case showing how diagnosed conditions led to a respondent's sexual offending. The Gary K. Court then concluded that if the Court of Appeals were to limit the holding in Jerome A., the case before it was distinguishable.
The fact-intensive nature of article 10 proceedings is reiterated in Matter of State of New York v. Dennis K., 27 NY3d 718 [2016]. In that case, the Court of Appeals clarified that absent a diagnosis of a sexual disorder, the State is to show a respondent has more than a general tendency to commit crimes. Rather, detailed testimony must establish the link between a particular condition, disease or disorder and a predisposition to commit sex offenses. Combinations of diagnoses that include ASPD can meet this standard, as long as the proof shows predisposition leading to serious difficulty.
Glenn T.'s history of sex offending and conduct while incarcerated is set forth in a decision issued in the course of his original proceedings. (See Matter of State of New York v. Glenn T., 48 Misc 3d 521 [Sup Ct, Oneida County 2015]). That history is incorporated by reference here. Since residing at CNYPC, Glenn T.'s conduct has not improved. Dr. Burgoyne's written report contains more than 10 pages of incidents documented by CNYPC staff where Glenn T. was combative, aggressive, defiant and profane. At the hearing, we heard testimony and received exhibits demonstrating Glenn T.'s aggressive and impulsive nature toward female staff members at CNYPC, his continued unwillingness to abide by even the simplest of rules at the facility, and his ongoing refusal to attend treatment groups. In addition, within his review period, Glenn T. attempted to write a letter to a private business that offers soft pornography and other materials not permitted at CNYPC. He claimed he was writing for information about a drawing contest, but discarded the letter without allowing staff to read it. Glenn T. was also found in possession of a photo album he created and which included nude and sexually explicit pictures of women. CNYPC staff confiscated the album as contraband.
Looking to Glenn T.'s past and present conduct, Dr. Burgoyne identified the following [*4]factors to support his opinion that Glenn T. is predisposed to commit sex offenses: his ASPD combined with his high psychopathy score; history of sexual compulsivity; repeated return to offending behavior; continued impulsivity while at CNYPC; lack of remorse; callousness; manipulating others for sexual gain; repeatedly engaging in unlawful sexual behavior; dishonesty; lack of conscience; and failure to take responsibility for his actions. Dr. Burgoyne expressed his conclusion best when he testified that Glenn T. wants sex and does not care who gets hurt in the process. Although Glenn T. would not talk to Dr. Burgoyne, he was asked by Dr. Bard to explain his conduct but had no information or insight to offer. The Court therefore finds the State met its burden relative to establishing predisposition.
With regard to serious difficulty controlling sexual conduct, the State did not rely solely upon Glenn T.'s past sex crimes, but rather demonstrated how his current behavioral patterns support a finding of mental abnormality. Both experts acknowledge Glenn T. routinely breaks facility rules at CNYPC and is verbally aggressive toward staff. Both experts recognize Glenn T. refuses to attend — let alone participate — in any treatment programs. He also failed to complete any sex offender treatment while incarcerated with DOCCS.
Dr. Bard attributes these behaviors to ASPD, but does not see them as evidence of serious difficulty managing sexual impulses. Dr. Burgoyne counters that aggression was a key component to each of Glenn T.'s offenses, in that he forced sex upon his victims and threatened to kill them. Moreover, he threatened to force one victim into prostitution. He supplied another victim with alcohol while keeping her in a hotel room against her will. He broke into the residence of another victim and raped her while she was pregnant. Yet Glenn T. denied to Dr. Bard that he ever forced anyone to engage in sex with him. He claimed he did not need to resort to rape because lots of girls were available to him. These explanations however, fail to account for his guilty pleas to his three sex offenses.
With Glenn T. choosing to abstain from treatment that would help him understand his offense cycle and mitigate the risk for recidivism, combined with Glenn T.'s ongoing disdain for rules and boundaries, Dr. Burgoyne is concerned Glenn T. will return to sexual offending once released to the community. The fact that Glenn T. has failed to comply with parole conditions in the past, including committing rape less than one month after being released on parole, supports Dr. Burgoyne's concerns.
Dr. Burgoyne's testimony regarding Glenn T.'s risk factors linked to reoffending further supports his conclusion regarding serious difficulty. He testified that Glenn T. exhibits sexual deviance, as evidenced by his pimping prostitutes, offending against vulnerable women, selecting the environment for his offenses, and being a versatile sex offender with a large potential victim pool. With regard to criminality, Glenn T. exhibits multiple characteristics within this risk category as he has a criminal personality by virtue of his ASPD plus psychopathy, he demonstrates ongoing interpersonal aggression and impulsivity, he has no proof of meaningful community supports, he has a poor history while under community supervision and he displays intimacy deficits. Nor does he participate in treatment to address, understand or manage any of these issues.
Relative to Dr. Bard's observation that Glenn T. can control his behavior since he has not engaged in sexual misconduct over the past five years, the Court relies upon its reasoning set forth in Matter of Willie Y. v. State of New York, 2016 NY Slip Op 51107 [Sup Ct, Oneida [*5]County 2016]. As noted in that case, where a respondent in confinement consistently demonstrates those same emotional states as are an integral part of his offending cycle in the community, yet without access to his victim pool, the absence of misconduct is not necessarily determinative of control over sexual behavior. A similar observation was made by Dutchess County Supreme Court in State of New York v. Avon L., where a respondent who avoided serious disciplinary problems in confinement, but immediately reverted to sex offending conduct in the community, was viewed as having serious difficulty controlling sex-offending behavior upon release. In cases where respondents were credited with appropriate conduct while confined, such as the First Department's decision in Matter of State of New York v. Frank P., 126 AD3d 150, or this Court's decision in Matter of Wright v. State of New York, recently affirmed by the Fourth Department in a memorandum decision found at 144 AD3d 1514, other factors were present, such as engaging and succeeding in treatment, evidencing a commitment to continue treatment in the community, showing an awareness of risk factors and having a plan to address same. Similarly, the Court in Kevin J. credited the respondent with completing a sex offender treatment program while incarcerated, engaging in treatment in an OMH facility while his original confinement proceeding was pending, improving his behavior while imprisoned as reflected by the decreasing frequency of his infractions, and making a conscious choice to refrain from alcohol consumption almost 10 years before.
When asked on cross-examination as to how he could find Glenn T. does not have an ability to control his sex offending conduct when he has not acted out sexually in years, Dr. Burgoyne explained that Glenn T. spent those years in a heavily-monitored environment. Consequently, Glenn T. cannot control his circumstances as he did when he sexually offended against his three victims in the community. Dr. Burgoyne also views Glenn T.'s recent attempt to contact the private business providing soft porn, along with his hostility and struggles with female staff, as behavior reflective of his offense cycle. Crediting Dr. Burgoyne's testimony, the Court finds sufficient evidence of serious difficulty due to Glenn T.'s history of behavior while in the community and in custody, as well as his denial of wrongdoing and lack of any participation in treatment.
Having found mental abnormality, the Court must now consider whether Glenn T. is a "dangerous sex offender requiring confinement." The Court credits the following proof in support of its conclusion that the State has met its burden: (1) Glenn T.'s repeated offenses, despite sanctions and despite community supervision while on parole; (2) the integral role of his psychopathic personality traits in his offense cycle; (3) failure to engage in treatment at any time throughout his incarceration and civil confinement; (4) denial that he forced sex on his victims; (5) lack of understanding of how to reduce his risk of recidivism; and (6) absence of community supports who are aware of his offense history or have been involved in treatment.
Supporting a finding of dangerousness are the results of two actuarial risk assessment instruments. Dr. Burgoyne administered the Violence Risk Scale: Sex Offender Version, commonly known as the VRS:SO, which placed Glenn T. in the high risk range. Dr. Bard utilized a tool known as MATS-1 to find Glenn T. is in the high range.
In sum, based upon the totality of the evidence,[FN1] the Court finds the State is not relying exclusively on Glenn T.'s past criminal record or the nature of his offenses to show he is a dangerous sex offender requiring confinement. Instead, the State has presented clear and convincing factual evidence particular to Glenn T. to establish that he continues to show such a strong predisposition to commit sex offenses and such an inability to control his behavior that he is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.
The Court's determination in this matter is made nunc pro tunc to the date of the close of proof at the hearing, i.e. December 14, 2016. The Office of the Attorney General is directed to submit a proposed Order, on notice to MHLS, in accordance with this decision.
IT IS HEREBY ORDERED, that the Court record of this proceeding shall be sealed by the Oneida County Clerk's Office and will only be available to parties to this proceeding or upon further Order of the Court.
Dated: December 20, 2016
ENTER:
HON. LOUIS P. GIGLIOTTI, AJSC Footnotes
Footnote 1:Glenn T. testified on his own behalf at the hearing. He said he needed to be released to Onondaga County so that he could be a better influence over his son and stepson who reside in Monroe County. His release plan has few concrete details, and he did not talk at all about how he would avoid reoffending in the future. Without making any determinations as to credibility, the Court gives little weight to this testimony because it had little relevance to the issues that need to be decided in this case.
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