Matter of R.B.

[*1] Matter of R.B. 2006 NY Slip Op 50122(U) [10 Misc 3d 1078(A)] Decided on January 25, 2006 Supreme Court, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 25, 2006
Supreme Court, Dutchess County

In the Matter of R.B., , Defendant.



100XX/04

James D. Pagones, J.

This application for a subsequent retention order pursuant to CPL §330.20(1)(i)(j) and (9) is granted.

BACKGROUND

In 1998, defendant R.B. was found not guilty of sexual abuse in the first degree [Penal Law §130.65, a Class D felony] and endangering the welfare of a child [Penal Law §260.10, a Class A misdemeanor] by reason of mental disease or defect. He was committed to the care and custody of the Commissioner of Mental Health and was confined in a secure facility pursuant to Criminal Procedure Law §330.20 ("CPL").

R.B. was diagnosed as suffering from Major Depression Disorder with psychotic features, Polysubstance Dependence, Pedophilia, and Personality Disorder NOS.

R.B. was confined to Mid-Hudson Psychiatric Center from 1998 through November, 2002. He was transferred to Hudson River Psychiatric Center ("HRPC"), a non-secure psychiatric facility operated by the New York State Office of Mental Health, at that time. His confinement at HRPC continues.

In or about the end of June, 2004, HRPC applied to this court for a subsequent retention order authorizing R.B.'s continued retention for another two (2) years. The current order was due to expire on August 5, 2004. R.B. seeks a release order with a five year order of conditions. [CPLR §330.20(1)(o).] The matter was adjourned many times on consent of the parties. A retention hearing was commenced on May 20, 2005 and continued on four (4) subsequent dates [June 8, July 19, July 26, and August 11, 2005]. A contested motion filed by Mental Hygiene Legal Service on behalf of R.B. concerning a subpoena duces tecum resulted in a decision and order, dated September 27, 2005. The matter was marked fully submitted on November 30, 2005 to permit the parties to submit memoranda of law and a transcript of the proceeding. The Dutchess County District Attorney received notice of this proceeding and elected not to participate.

BURDEN OF PROOF

The statute requires the applicant to "establish to the satisfaction of the court that the [*2]defendant has a dangerous mental disorder or is mentally ill" [CPL §330.20(9)].

The standard of proof petitioner must achieve in order to warrant a subsequent retention order is by a preponderance of the evidence. (Matter of Francis S. 87 NY2d 554, 564 [1995].) "Properly interpreted,...the preponderance rule means that the evidence must be of such weight as to produce a reasonable belief in the truth of the facts asserted." (Fisch, New York Evidence [2d ed], §1090, pg. 613.) Petitioner has met that burden.

THE WITNESSES

The certainty of words always depends upon the integrity of the speaker. "For the ear test words, as the mouth tastes food." JOB 34:3. I had the unique opportunity to observe the testimony of the witnesses. In so doing, I considered the following factors in weighing their testimony: the interest or lack of interest of the witness in the outcome of the proceeding, potential bias or prejudice on the part of the witness, the age, the appearance, sincerity, demeanor, the manner in which the witness gave testimony, the opportunity the witness had to observe the facts about which he or she testified and the probability or improbability of the witness' testimony when considered in the light of all of the other evidence in the proceeding. (See PJI, Vol. 1A, 1:8.) I resolve all issues of credibility and reliability in favor of petitioner's witnesses.

PETITIONER'S WITNESSES

Dr. Franck Paul is R.B.'s treating psychiatrist. Dr. Paul testified that R.B.'s Axis I diagnosis consisted of major depression with psychotic features, polysubstance dependence and pedophilia. All were in remission because of his hospitalization. R.B.'s Axis II diagnosis is personality disorder, NOS. This diagnosis remains active, with R.B. engaging in narcissistic, borderline and antisocial features. Dr. Paul described R.B. as a manipulative person, one who lacks insight into his mental illness, and one who has a documented history of either being assaulted or being the aggressor in a physical altercation while in custody. Dr. Paul gave specific examples of all of the foregoing characteristics.

Dr. Donald Schwab is the Director of Psychiatry and Forensic Services at HRPC. Dr. Schwab provided a chronological (historical) perspective of R.B. commencing with the underlying crimes through the present.

Dr. Schwab testified that R.B. underwent the Abel Assessment for Sexual Interest test on three (3) occasions: June 9, 1998, July 14, 1999, and June 23, 2000. In each instance, the test result revealed that he had a sustained sexual interest in children, along with other deviant sexual interests. He repeatedly acted out on these interests.

R.B. was issued an order and conditions in or about October, 2002 upon his transfer from Mid-Hudson Psychiatric Center to HRPC. One of the conditions of the order prohibited him from possessing pornographic materials. On April 28, 2003, a search of R.B.'s room revealed a pornographic magazine in his possession.

Dr. Schwab chairs the Forensic Committee. It was the committee's responsibility to review the treatment team's current application to seek subsequent retention of R.B. The committee supported the application unanimously so as to protect the public's safety.

Dr. Howard Smoller is the court appointed independent psychiatrist. He did not mince words. He testified R.B. has two mental disorders: pedophilia (Axis I) and personality disorder (Axis II). Dr. Smoller's unflinching and vivid testimony painted R.B. as a chameleon, one who is [*3]at high risk to reoffend because of his diagnosis as a pedophile and sociopath. He unequivocally believes R.B. requires continued hospitalization because he needs a highly structured setting. R.B. should remain at HRPC until he completes his forty-four (44) step program [he's currently at step twenty-three (23)] and an application to the court is made for conditional release.

Dr. Beatrice Kovasznay is the Clinical Director of the Division of Forensic Services, New York State Office of Mental Health. Dr. Kovasznay interviewed R.B. on two (2) occasions: July 15, 2004 and January 12, 2005. She expressed the opinion that R.B. has a history of major depression (in remission), history of alcohol and cocaine abuse, history of personality disorder with borderline anti-social behavior and history of narcissistic behavior.

Dr. Kovasznay explained that R.B. lacks insight into his circumstances because he believes there is nothing wrong with him and that his problems are external and that his track record of non-compliance with treatment suggests he will not adhere to an order with conditions. Dr. Kovasznay stated R.B. is a danger to himself and the community and that any increase in his freedom needs to be accomplished gradually because of his history. Dr. Kovasznay observed that R.B. is not ready to be released into the community since he has yet to have either escorted or unescorted furlough privileges. Insight is more than just knowing your diagnosis, and it is not one single incident but the overall pattern of behavior which needs to be carefully scrutinized.

DEFENDANT'S WITNESSES

Dr. Michael Kulla is a licensed psychologist. He testified on behalf of R.B. He performed an evaluation of R.B. on the limited issue of whether he can be treated in a community setting. He answered the question in the affirmative. However, Dr. Kulla admitted he does not have the forensic experience with sex offenders, is not familiar with programs designed to assist sex offenders like R.B., and is not familiar with CPL §330.20.

Dr. Richard Bohn Krueger is a psychiatrist affiliated with the Sexual Behavior Clinic, New York State Psychiatric Institute. The court finds that Dr. Krueger's opinion is insufficient because he based it without considering relevant data, for example, the three Abel Assessment for Sexual Interest tests. He also failed to provide an Axis II diagnosis for R.B. Dr. Krueger stated that deference should be given to HRPC's decision to seek subsequent retention of R.B.

Dr. Arnon Ben-Yoseph is a licensed psychologist employed at HRPC. He conducted a personality test on R.B., commonly referred to as the MMPI2 test, on September 25, 2003. The results, in evidence, are embodied in a report, dated October 9, 2003. According to the test results, and as of the time they were administered, and as the findings were interpreted suggest that R.B. was free from any significant psychopathology in the opinion of this witness. Dr. Ben-Yoseph recommended that the HRPC treatment team continue to move R.B. along the forensic pathway towards conditional release.

Upon cross-examination, Dr. Ben-Yoseph acknowledged the MMPI2 test is commonly used as a means of increasing knowledge into a person's emotional or personality functioning. It is not designed to assess the chances for reoffending, nor is it used as a risk assessment tool. It may aid in the diagnostic process. It is considered a valid test. The treatment team requested it as an aid in their understanding of R.B.'s functioning at the time.

Dr. Ben-Yoseph indicated he was aware of the documented history of R.B.'s prior attempts to manipulate tests used to assess his psychology.

There was no testimony from any psychiatrist or psychologist from either the petitioner's [*4]or defendant's perspective that R.B. is free from mental illness and posed no danger to either himself or others to justify a conditional release.

Jean Dingee is the Director of Social Work at HRPC. She has served as R.B.'s therapist. The witness assesses him periodically for the benefit of the HRPC treatment team. Her work complements their mission. The witness testified that R.B. has learned to handle his anger, to interact with others more appropriately, and that he needs to trust other people instead of just himself. However, there is still a level of mistrust between R.B. and his treatment team. This witness believes R.B. is ready to assimilate into the community with escorted off ground privileges to see how he responds before he can be released.

Anthony Hamel is employed by the New York State Department of Mental Health as a vocational instructor at the Rainbow Carwash. R.B. had participated in the program for seventeen (17) months at the time of the hearing. Patients are evaluated monthly. Mr. Hamel described R.B. as one of his best employees. They have an excellent employer/employee relationship. R.B. is conscientious in his work and has made progress. He has never been contentious with his supervisors or co-workers.

R.B. testified. He acknowledged he does not enjoy a positive relationship with his treatment team. In fact, it is quite contentious. R.B. credits Jean Dingee with helping him. She is the only person he trusts at HRPC.

R.B. displayed an "I know what's best" attitude throughout his testimony. It was quite evident to this observer that at various times in his testimony, R.B. displayed the behavioral characteristics discussed by the petitioner's experts, namely, manipulative, denial, evasive and defiant.

Anthony Hamel's testimony portrayed R.B. as an exemplary employee at a carwash. However, it provided no insight as to whether he is at risk to reoffend against children or pose a risk to himself or others.

Jean Dingee spoke about R.B. in positive, yet cautious terms. She noted that he continues to have conflict with the treatment team. R.B.'s testimony verified that fact.

DECISION

Petitioner has established by a preponderance of the evidence that R.B. is mentally ill as defined by CPL §330.20(1)(d) and Mental Hygiene Law §1.03(20). His Axis II diagnosis of personality disorder brings him within that definition so as to warrant involuntary retention. (Matter of MHLS v. Wack, 75 NY2d 751, 753 [1989]; Matter of Consilvio v. Alan L., 7 AD3d 252, 254 [1st Dept. 2004]; Matter of Crumpley v. Wack, 212 AD2d 299, 307 [1st Dept. 1995], mot for lv to app den 86 NY2d 808 [1995].)

Petitioner has made the requisite showing of both mental illness and minimum level of dangerousness to himself or others to warrant continued retention at HRPC. (Matter of David B., 97 NY2d 267 [2002].) The cumulative effect of petitioner's evidence in support successfully provides an accurate psychological profile of R.B.'s current condition, as well as addresses the various factors discussed in Matter of David B., supra.

Counsel for R.B. has invited the court for the first time in his Trial Memorandum of Law to consider and apply the test standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 [1993] and disregard the test generally accepted by New York courts from the case of Frye v. U.S., 293 F. 1013 [DC Cir 1923] when considering the reliability of the [*5]psychiatric/psychological testimony adduced at the hearing (defendant's Trial Memorandum of Law, pg. 3). I decline to do so.

Under Frye, New York courts will admit expert testimony deduced from (1) a well recognized scientific principle or technique and (2) that the theory or methodology is generally accepted in the relevant scientific community. (People v. Wesley, 83 NY2d 417, 422 [1994].)

Daubert relaxes that standard (People v. Wesley, supra, pg. 423, note 2). Prior to admitting scientific, technical or other specialized knowledge, the court should determine whether the theory or methodology was (1) falsified or refuted through testing, (2) had a known or potential rate of error, (3) subjected to peer review and publication, and (4) generally accepted in the relevant scientific community.

In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 [1999], the Supreme Court tweaked the Daubert standard by holding that all matters of a scientific, technical and other specialized knowledge are to be reviewed by the court for the validity of the methodology and procedures in assessing the expert's conclusions or opinions.

This court finds no basis to deviate from Frye. There were no novel, unproven or speculative theories relied upon by the petitioner's experts in support of the instant application. Their testimony was based upon accepted psychiatric and psychological practices and the clinical record. Nothing unusual was presented. The testimony was entirely reliable.

R.B.'s lack of insight into his mental illness was glaringly on display when considered in the light of all the testimony and fair interpretation of the evidence. He is unwilling to acknowledge that he continues to suffer from an active mental illness, and because of his mental illness constitutes a physical danger to himself or others. (CPL §330.20[1][c].)

It is the finding of the court that R.B. is mentally ill, that in-patient care, treatment and retention are fundamental to his well-being and that his current judgment remains impaired to the extent that he does not understand the need for such care or treatment. The court also finds the proposed retention is the least restrictive and intrusive. It is appropriate to R.B.'s current mental status.

Submit order, effective August 5, 2004, on notice within ten (10) days of service of a copy of this decision.

The foregoing constitutes the decision of the Court.

Dated:Poughkeepsie, New York

January 25, 2006ENTER

HON. JAMES D. PAGONES, A.J.S.C.

TO:JEANE L. STRICKLAND SMITH, ESQ. [*6]

Assistant Attorney General

Office of the New York State Attorney General

Attorneys for Petitioner

HUDSON RIVER PSYCHIATRIC CENTER

235 Main Street

Poughkeepsie, New York 12601

DAVID T. WARSHAW, ESQ.

Associate Attorney

Sidney Hirshfeld, Director

MENTAL HYGIENE LEGAL SERVICE

Attorneys for Defendant

R.B.

Hudson River Psychiatric Center

10 Ross Circle

Poughkeepsie, New York 12601-1078

WILLIAM V. GRADY, ESQ.

Dutchess County District Attorney

236 Main Street

Poughkeepsie, New York 12601