Matter of J.T.

[*1] Matter of J.T. 2007 NY Slip Op 52133(U) [17 Misc 3d 1124(A)] Decided on November 5, 2007 Supreme Court, New York County Lehner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 9, 2007; it will not be published in the printed Official Reports.

Decided on November 5, 2007
Supreme Court, New York County

In the Matter of the Application of The State of New York, Petitioner, For An Order Authorizing the Commitment under Article 10 of the Mental Hygiene Law of J. T., a patient at Manhattan Psychiatric Center, Respondent.



XXXXX



Andrew Cuomo, attorney general (Roger Canoff, of counsel), attorney for petitioner

120 Broadway, New York, NY 10035, (212) 672-6956

Mental Hygiene Legal Services , attorneys for respondent (David Tull, of counsel)

600 East 125th Street, Wards Island, NY 10037, (646) 672-6956

Edward H. Lehner, J.

The main legal issue in controversy in this proceeding commenced pursuant to the recently enacted Article 10 of the Mental Hygiene Law ("MHL")(Ch. 7 of the Laws of 2007) relates to the proper definition of the term "probable cause" as employed therein.

Section 10.05 provides for the creation of a "case review panel" (the "Panel") by the commissioners of the departments of Mental Health; Mental Retardation and Developmental Disabilities; and Correctional Services. Upon request of the agency having jurisdiction, the Panel is to review the cases of persons who "may be a detained sex offender (the "respondent") (who) is nearing an anticipated release." If the Panel, after the review of records and a psychiatric examination, finds that the respondent "is a sex offender requiring civil management," it is to notify the respondent and the Attorney General, who then [*2]"may file a sex offender civil management petition" [§§ 10.05(g); 10.06(a)]. Within 30 days thereafter, a court is required to conduct a non-jury hearing "to determine whether there is probable cause to believe that the respondent is a sex offender requiring civil management" [§ 10.06(g)]. If the court finds that such "probable cause" has been established, respondent is to "be committed to a secure treatment facility" [¶ 10.06 (k)] and, within 60 days of such determination, a jury trial is to be conducted "to determine whether the respondent is a detained sex offender who suffers from a mental abnormality" [§ 10.07(a)], which is 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 offence and that results in that person having serious difficulty in controlling such conduct"[§10.03(i)].

At the time of the signing of the order to show cause commencing this proceeding on July 30, 2007, respondent was being retained at Manhattan Psychiatric Center ("MPC") as a consequence of the Court of Appeals decision in Harkavy v. Consilvio, 7 NY3d 607 (2006). There, it was held that the State's involuntary transfer of sex offenders nearing the completion of their sentences to facilities of the Department of Mental Health was improper in that the proper procedure to be then employed was in accordance with Correction Law §402. The court directed that the persons who had been so transferred be afforded an immediate retention hearing. Various court orders have since directed that respondent be retained at MPC pursuant to MHL Article 9. As a consequence of the said Court of Appeals decision, Article 10 was enacted this past March and is applicable to respondent even though he had been transferred prior to its enactment [see, Harkavy II, 8 NY3d 645 (2007)]. In its findings, as contained in §10.01, the legislature stated: "(a) That recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management. Civil and criminal processes have distinct but overlapping goals, and both should be part of an integrated approach that is based on evolving scientific understanding, flexible enough to respond to current needs of individual offenders, and sufficient to provide meaningful treatment and to protect the public.(b) That some sex offenders have mental abnormalities that predispose them to engage in repeated sex offenses. These offenders may require long-term specialized treatment modalities to address their risk to reoffend. They should receive such treatment while they are incarcerated as a result of the criminal process, and should continue to receive treatment when that incarceration comes to an end. In extreme [*3]cases, confinement of the most dangerous offenders will need to be extended by civil process in order to provide them such treatment and to protect the public from their recidivistic conduct."

In the case at bar, the required probable cause hearing was held on September 24 and October 1. The facts showed that respondent, who is 23 years of age, was transferred to MPC from Downstate Correctional Facility in October 2005, and he has since been a very cooperative patient and has created no problems at the facility where he has been retained in a secure ward.

In February 2002, respondent had been convicted upon a pleas of guilty of a course of sexual conduct against a child in the first and second degrees. While on probation, he was convicted, upon a plea of guilty, of attempted sexual abuse in the first degree and received a sentence of 18 months to 3 years. His term expired in July 2006 (Tr. p. 14).

The only witness for petitioner was Dr. Samuel Langer, the chief of psychiatry at MPC, who serves essentially as an administrator of the hospital. He only saw respondent on two occasions for approximately an hour, but testified that he reviewed respondent's records and spoke to his treating psychiatrist. Petitioner's counsel stated that said treating psychiatrist was reluctant to testify because it would interfere with his "positive therapeutic relationship" with respondent, and because he feared for his safety if other patients at MPC learned that he testified against respondent (tr. pp. 357-359). Although §10.06(e) provides that respondent may request that he be evaluated by a psychiatrist at State expense, he made no request for such evaluation and offered no medical testimony in opposition to the testimony of Dr. Langer.

Dr. Langer testified that respondent showed no remorse regarding the later crime of which he was convicted, which respondent sought to explain by indicating that his plea was the consequence of a bargain made by his attorney to avoid the possibility of a lengthy sentence in the event he was convicted of rape. Dr. Langer further opined that, while respondent was not a danger to himself or others while regularly taking his medication, the experience of respondent when previously out of a hospital indicated that if now discharged he would be a danger to others, and he concluded that respondent did suffer from a mental abnormality, as defined in § 10.03(i).

It has recently been stated by the First Department that "[l]ack of remorse and minimizing one's crime are relevant factors in continuing retention, indicating a patient's lack of insight into his mental illness ... (and that) lack of insight would cause (a patient) to decompensate outside an inpatient facility, an important factor to consider when determining whether he should be recommitted to a psychiatric [*4]facility." [Commissioner of the Office of Mental Health v. Glenn B., ____ AD3d ____, NYLJ, October 25, 2007, p. 35, c. 1]. In Matter of Janie R. v. Consilvio, 17 AD3d 52, 61 (2005), the First Department stated that it "has recognized that psychiatric findings, undisputed or uncontroverted, may constitute sufficient evidence to support a patient's retention." Here, as aforesaid, no medical testimony has been offered to controvert the opinions expressed by Dr. Langer.

The legal issue thus presented is whether the evidence is sufficient to support a finding of "probable cause" to believe that respondent is a sex offender requiring civil management. On this issue, respondent argued that this term means "more likely than not," whereas petitioner maintains that a proper definition is "reasonable cause to believe" (see tr. pp. 2-12, 447-459). It is noted that in the only reported case on this issue, State of New York v. Junco, 16 Misc 3d 327, 328 (Washington County 2007), the court, noting the absence of a statutory definition, stated that it "assumes that 'probable cause' requires a finding that there is a reasonable cause to believe that the respondent is a sex offender requiring civil management."

While research has indicated that the term "probable cause" appears in scores of statutes (e.g., Agriculture and Markets Law §§71-x, 118, 135-b, 202-b; Civil Rights Law §8; Civil Service Law §72; Education Law §§313, 3020-a, 6813; Environmental Conservation Law §§33 - 1501, 33-1503, 7-0907; Estates, Powers and Trusts Law §3-3.5; Executive Law §§259-a, 296-a, 297, 465.4; Judiciary Law §§46, 67; Mental Hygiene Law §§7.05, 19.05, 19.42; Military Law §130.9; Public Health Law §§206-a, 2904, 3002, 3016-a, 4011; Social Services Law §122; Tax Law §1178), there is a paucity of decisional law interpreting these statutes.

In discussing the meaning of the term "probable cause" with respect to an arrest, Chief Justice Rehnquist wrote as follows for a unanimous court in Maryland v. Pringle, 540 U.S. 366, 370-371 (2003): "On many occasions, we have reiterated that the probable cause standard is a practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Probable cause is a fluid concept turning on the assessment of probabilities in particular factual contexts not readily, or even usefully, reduced to a neat set of legal rules.The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. We have stated, however, that the substance of all the definitions of probable cause is a [*5]reasonable ground for belief of guilt, and that the belief of guilt must be particularized with respect to the person to be searched or seized ....Chief Justice Marshall observed, in a closely related context: The term 'probable cause,' according to its usual acceptation, means less than evidence which would justify condemnation .... It imports a seizure made under circumstances which warrant suspicion. More recently, we said that the quanta ... of proof appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant. Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the probable-cause decision.To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause" (internal quotation marks and citations omitted).

The arguments of both parties on the appropriate definition of the term have received support in various decisions of our Court of Appeals. For example, in People v. Carrasquillo, 54 NY2d 248, 254 (1981), Judge Fuchsberg on behalf of a five judge majority wrote: "In passing on whether there was probable cause for an arrest, we consistently have made it plain that the basis for such a belief must not only be reasonable, but that 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."

See also, People v. Mercado, 68 NY2d 874, 877 (1986). However, in People v. Bigelow, 66 NY2d 417, 423 (1985), the court held that probable cause for an arrest or search requires "merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place ... (and the) legal conclusion is to be made after considering all of the facts and circumstances together." The court further noted that there are different levels of scrutiny when reviewing probable cause determinations, with a higher level applicable when reviewing "determinations [*6]made by police acting without a warrant than when reviewing a determination made by a detached and neutral magistrate" (Fn. p. 424).

Recently the Court of Appeals rejected a criminal defendant's argument that the standard to be applied was "more probable than not that he committed the offense," citing the "reasonable belief" standard stated in Bigelow [People v. Shulman, 6 NY3d 1, 25 (2005)]. Accord: Marrero v. City of New York, 33 AD3d 556, 557 (1st Dept. 2006); People v. Simpson, 244 AD2d 87, 90-91 (1st Dept. 1998); Galland v. Kassoff, 34 AD3d 306, 307 (1st Dept. 2006); Perryman v. Village of Saranac, 41 AD3d 1080 (3rd Dept. 2007).

In light of the foregoing, the court concludes that the intent of the legislature, in mandating a finding of probable cause in Article 10, was in accord with the most recent judicial decisions, and preliminarily only requires a court to find that there is a reasonable belief that the respondent is a sex offender requiring civil management. Based on the evidence presented at the aforesaid hearing, and noting the lack of any contrary medical testimony offered on behalf of respondent, the court concludes that the requisite showing of probable cause has been satisfied by petitioner.

Accordingly, pursuant to §10.06(k), the court directs that the trial mandated by §10.07, on which the burden of proof is "clear and convincing evidence" [§10.07(d)], shall commence on Wednesday, November 28, with counsel to appear for a pre-trial conference at 10:30 a.m. in this part on November 21. Pending the determination at trial, respondent shall be retained in a secure ward of MPC.

This decision constitutes the order of the court.

Dated: November 5, 2007________________

J.S.C.