Matter of State of New York v C.B.

[*1] Matter of State of New York v C.B. 2008 NY Slip Op 50488(U) [19 Misc 3d 1103(A)] Decided on March 10, 2008 Supreme Court, Bronx County Dawson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 10, 2008
Supreme Court, Bronx County

In the Matter of the Application of The State of New York, Petitioner,

against

C.B., Respondent,



341104-2008

Joseph J. Dawson, J.

On March 4, 2008, this Court conducted a hearing, pursuant to Article 10 of the Mental Hygiene Law ("MHL"), to determine whether there is probable cause to believe that respondent: (1) "is a sex offender requiring civil management" within the meaning of Section 10.06(g) of the MHL; and (2) "is sufficiently dangerous to require confinement, and that lesser conditions of supervision will not suffice to protect the public during pendency of the proceedings." See Mental Hygiene Legal Services v. Spitzer, ___ F. Supp.3d ___, 2007 WL 4115936, at *15 (S.D.NY Nov. 16, 2007) (citations omitted).[FN1] For the reasons set forth below, the Court finds that there is probable cause to believe that respondent is a sex offender requiring civil management and that he is sufficiently dangerous to require continued confinement during the pendency of the proceedings.

In 1998, respondent was charged in two indictments with breaking into four different homes and attempting to rape or sexually abuse the female occupants of each. On January 27, 2000, he entered guilty pleas under both indictments in exchange for concurrent sentences of eight years imprisonment in each case. Specifically, respondent pled guilty to Burglary in the Second Degree and Sexual Abuse in the Second Degree under Indictment Number 6985/97 and pled guilty to Burglary in the Second Degree and Sexual Abuse in the First Degree under Indictment Number 3757/98, and the promised sentences were subsequently imposed. See Petitioner's Exhibits 3 and 4. The victim in one of the cases was a five-year old girl.

At the probable cause hearing, petitioner presented the testimony of Samuel J. Langer, M.D. ("Dr. Langer"), a psychiatrist licensed to practice in the State of New York since 1974. See Minutes, 3/4/08 at pp. 17-18. Dr. Langer received his medical degree from the University of Toronto and completed his psychiatry residency at Montefiore Hospital. Dr. Langer has been the [*2]Chief of Psychiatry at the Manhattan Psychiatric Center ("MPC") since July 12, 2001.[FN2] Id. at pp. 18-20. Dr. Langer has also received specialized training in how to evaluate sex offenders under Article 10 of the MHL; he has conducted about ten such psychiatric evaluations himself, including respondent's evaluation. Id. at pp. 20-21. The Court found Dr. Langer to be qualified to provide expert testimony in the field of psychiatry and credits his testimony. Id. at p. 22. Also admitted into evidence were reports of evaluations of respondent that were conducted by three other psychiatrists: Dr. Richard B. Krueger, Dr. Allan B. Wells and Dr. Michal Kunz. See Petitioner's Exhibit 7.

According to the reports of the psychiatrists who evaluated him, respondent suffered from severe physical and sexual abuse as a child, and eventually began to use and abuse marihuana. Before being convicted of the felonies that led to his lengthy incarceration, respondent was arrested various times for indecent exposure. Id. at 28-29. The certificates of conviction introduced into evidence at the hearing confirm that, in addition to the felonies described above, respondent was convicted of Criminal Possession of Marihuana in the Fifth Degree on July 24, 1991, Public Lewdness on December 7, 1993, and Public Lewdness and Exposure of a Person on June 24, 1995. See Petitioner's Exhibits 1-5.

Dr. Langer has known respondent since October 2005, when respondent was first civilly confined at MPC after being incarcerated.[FN3] See Minutes, 3/4/08 at pp. 22-23. In addition, Dr. Langer interviewed and evaluated respondent on June 22, 2007. Id. at pp. 23-25. Dr. Langer reviewed several documents in connection with the evaluation: respondent's medical records, respondent's pre-sentence report, respondent's criminal history, and the reports of the other psychiatrists who had evaluated respondent. Dr. Langer relied on these materials in diagnosing respondent, and testified that mental health professionals regularly rely upon such materials in diagnosing and treating psychiatric disorders. Id. at pp. 24-25.

Dr. Langer also reviewed the results of two tests that assist mental health professionals in determining whether a sex offender is likely to commit another sex offense in the future, the "Static 99" test and the "Minnesota Sex Offender Screening Test, Revised" ("MNSOST-R"). These tests help determine the likelihood that a subject may commit a sexual offense in the future based on actuarial, historical and other data. The results of these tests augmented, and were consistent with, Dr. Langer's opinion of respondent. Id. at pp. 24-25, 42-53.

Dr. Langer opined, with a reasonable degree of scientific certainty, that respondent suffers from the following conditions:

antisocial personality disorder, which is characterized by an inability to conform to societal [*3]norms, impulsiveness, deceitfulness, a lack of remorse, and a disregard for the feelings of others;

bipolar disorder, which is characterized by significant mood swings ranging from grandiosity to depression, hyperactivity, and racing thoughts;

cannabis dependence, which is characterized by the daily use of marijuana (and which is in remission due to respondent's incarceration and subsequent civil confinement);

exhibitionism, which is characterized by sexual arousal as a result of exhibiting one's genitals to a stranger; and

paraphilia NOS ("not otherwise specified"), which is a catch-all designation found in the Diagnostic and Statistical Manual, Fourth Revision, of the American Psychiatric Association, and is characterized by a variety of exhibited aberrant sexual behaviors, including rape, sexual abuse, or other wrongful behaviors.

Id. at pp. 33-39.

As a result of these conditions, Dr. Langer opined that respondent had great difficulty controlling his behavior, and would be likely to commit sexual offenses in the future if not confined to a secure treatment facility. Id. at pp. 33-42, 52-60. Dr. Langer also opined that respondent would pose a danger to others if he was treated in a community-based or outpatient setting. Id. In rendering his opinion, Dr. Langer was influenced by respondent's refusal to take the medication prescribed for his bipolar disorder and his refusal to participate in a program for sexual offenders at MPC. Id. The doctor also considered respondent's failure to complete a program for sexual offenders while incarcerated and his documented history of mental illness, his sexual abuse of others, and his acts of exhibitionism. Id.

In addition, respondent's score on the Static 99 test was 7 or 8, which means that respondent is in the high range of previous sex offenders who are likely to commit another sex offense in the future. Id. at pp. 42-53. Similarly, respondent's score on the MNSOST-R test was 12, which also places respondent in the high range of previous sex offenders who are likely to commit another sex offense in the future. Dr. Langer testified that scoring in the high range means that there is a 52% likelihood that respondent would commit another sexual offense within the next fifteen years. Id.

Dr. Langer also testified that respondent has significant difficulties following the standards of behavior required of residents at MPC. Id. at pp. 31-33. Respondent has had multiple vocal outbursts at MPC over minor incidents, including one outburst as recently as February 15, 2008. Id. Respondent was also alleged to have walked around MPC with his [*4]bathrobe open in such a way to exhibit himself.[FN4] Finally, on August 3, 2006, respondent was alleged to have masturbated in front of a female nurse.[FN5] Id.

The three reports of the other psychiatrists who evaluated respondent, while differing to some degree in their assessments of respondent's condition, are consistent in documenting respondent's long history of mental illness, sexual abuse of others, and substance abuse. See Petitioner's Exhibit 7. For example, although Dr. Krueger doubted whether respondent really suffers from bipolar disorder and suggested that the incident involving the alleged masturbation in front of the nurse be investigated, he assessed respondent's "risk of a sexual reoffense" at a score of 10 on the Static 99 scale; in other words, according to Dr. Krueger, respondent falls "in the high category for sexual recidivism." All three psychiatrists reported that respondent, who had claimed to have worked prior to his arrest as an escort and stripper, admitted abusing the little girl because she encountered him during the burglary and he was somehow reminded of being sexually abused by his mother. Dr. Kunz scored respondent at a score of 8 on the Static 99 scale and, like Dr. Krueger, assessed him as posing a high risk for "sexual recidivism." All three reports suggest that, with the exception of his recognition that it was wrong for him to touch the little girl inappropriately, respondent tended to deny or otherwise minimize responsibility for the conduct that led to his incarceration in the first place. See Petitioner's Exhibit 7 [Report of Dr. Kunz at p. 1 (respondent acknowledged he was indicted for four sex offenses, but claimed he actually only committed two of them); Report of Dr. Krueger at p. 2 (respondent acknowledged pleading guilty to two sex offenses, but claimed he actually only committed one of them); Report of Dr. Wells at p. 2 (respondent viewed himself as victim and did not express remorse or regret towards victim)].

The Court finds that there is probable cause to believe that respondent not only is a sex offender requiring civil management, but also is sufficiently dangerous to justify his continued confinement pending the trial of this case. To the extent that respondent suggests that the Legislature's use of the phrase "probable cause" in the statute was intended to signal that the Court should apply something akin to a preponderance standard or anything more stringent than the time-honored and familiar test of reasonable cause, I reject his position. Accord, State v. Pedraza, 18 Misc 3d 261, 266, 2007 WL 3353563 at *5-6 (Sup. Ct. Suffolk Co. 2007); State v. Dove, 18 Misc 3d 254, 259-60 (Sup. Ct. Bronx Co. 2007); In the Matter of State v. J.T., 17 Misc 3d 1124(A), 2007 WL 3284327 at *3-4 (Sup. Ct. NY Co. Nov. 5, 2007); In the Matter of State v. [*5]K.A., 2008 NY Slip Op. 50103(U), 2008 WL 142330 at *6-7 (Sup. Ct. NY Co. Jan. 16, 2008); State v. J.J., Jr., 2008 NY Slip Op. 28031, 2008 WL 268586 at *4-6 (Sup. Ct. Nassau Co. Jan. 31, 2008); In the Matter of State v. O.V., 2008 NY Slip Op. 28016, 2008 WL 162142 at *4-5 (Sup. Ct. NY Co. Jan. 18, 2008); People v. S.S., 17 Misc 3d 1128(A), 2007 WL 4097394 at * 5 (Sup. Ct. Schuyler Co. Nov. 16, 2007).

To support his view, respondent cites to language in the Court of Appeals' decisions in People v. Mercado, 68 NY2d 874 (1986) and People v. Carrasquillo, 54 NY2d 248 (1981). In Carrasquillo, the Court essentially held that police officers cannot make a lawful arrest during a street encounter based upon nothing more than an observation that a person with disheveled clothes and "frizzled" hair is carrying a paper bag and cannot accurately state the brand name of the radio he is carrying. See 54 NY2d at 251, 254-55. In reaching that conclusion, the Court suggested that a police officer cannot justify an arrest simply by acting reasonably; instead, the Court remarked, "we consistently have made it plain that the basis for such a belief must not only be reasonable, but 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." Id. at 254. In Mercado, the Court considered the question whether the presence of two men in a single bathroom stall without any evidence of a wheelchair or other indicia of a person needing assistance could justify an officer's peering into the space through an adjoining stall. See 68 NY2d at 875. In upholding the officer's conduct in Mercado, the Court observed that "it was more probable than not' that criminal activity was taking place inside that stall." Id. at 877 (quoting Carrasquillo).

To be sure, the Court of Appeals used the "more probable than not" language in both cases; yet, far from articulating a new standard, the Court was explaining a fundamental principle that always has governed assessments of "reasonable cause." Simply put, ambiguous conduct that is as consistent with innocent behavior as it is with criminality does not give rise to a right to arrest someone whether one calls the appropriate test "reasonable cause" or "probable cause." On the other hand, as the Court explained in Mercado, once a given situation evinces probable cause, the legal right to act upon it does not dissipate merely because the "[h]uman imagination might conjure up possible innocent behavior . . ." 68 NY2d at 877.[FN6] Instead, the appropriate test in assessing the propriety of an arrest is whether the information put forth by an officer is sufficient to give rise to a reasonable belief that an offense has been committed by the person arrested. See, e.g., People v. Shulman, 6 NY3d 1, 25-26 (2005), cert. denied, Shulman v. New York, 547 U.S. 1043 (2006); cf. People v. Bigelow, 66 NY2d 417, 423 (1985) (stating probable cause to issue search warrant exists when there is "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") (citations omitted).

Certainly, had the Legislature meant to employ a standard more stringent than "probable cause" in Section 10.06(g) it would have said so; the Court must construe the statute according to the words that the Legislature used. See, e.g., Matter of Albano v. Kirby, 36 NY2d 526, 529-30 [*6](1975); see also Anderson v. Regan, 53 NY2d 356, 362 (1981). Accordingly, the question here is whether the petitioner elicited sufficient information to supply the Court with sufficient information to give rise to a reasonable belief that the respondent is a sex offender requiring civil management and that he is sufficiently dangerous to require confinement rather than a lesser condition of supervision pending the trial.

The petitioner has made the requisite showing. See MHL §§ 10.06(g), 10.03(q), 10.03(e), 10.03(r). First, there is ample reason to conclude that respondent is a detained sex offender; the record demonstrates that he was convicted of sex offenses and committed sexually-motivated felonies within the meaning of the statutes. See, e.g., MHL §§ 10.06(j), 10.03(f), 10.03(g), 10.03(p), 10.03(s), 10.06(j). Second, there is probable cause to conclude that respondent suffers from mental abnormalities. See MHL § 10.03(i). Specifically, Dr. Langer's testimony demonstrates that respondent suffers from exhibitionism, antisocial personality disorder, bipolar disorder and an otherwise unspecified form of paraphilia.[FN7] Moreover, those conditions, according to Dr. Langer, constitute a mental abnormality that affects respondent's emotional, cognitive or volitional capacity in a manner that predisposes him to the commission of a sex offense and results in serious difficulty in controlling such conduct. Cf. In the Matter of State v. O.V., 2008 NY Slip Op. 28016, 2008 WL 162142 at *5 (paraphilia and antisocial personality disorder constitute a mental abnormality pursuant to Article 10 of the MHL). Indeed, the doctor's testimony, especially when considered with the reports of the other psychiatrists, demonstrates that there is ample probable cause to believe that respondent's mental abnormality gives rise to such a strong predisposition to commit sex offenses that he is unable to control his behavior. Respondent's criminal history, his history of mental illness, his high scores on both the Static 99 and MNSOST-R tests, and his alleged conduct while confined at MPC including his alleged masturbation in front of a nurse all show that respondent has lacked, and continues to lack, the ability to control himself. See, e.g., In the Matter of State v. Davis, 2008 NY Slip Op. 50323(U), 2008 WL 483398 at *2 (Sup. Ct. Queens Co. Feb. 22, 2008) (finding sex offender lacked impulse control based in part on criminal history, problems while incarcerated, and high scores on Static 99 and MNSOST-R tests); People v. S.S., 17 Misc 3d 1128(A), 2007 WL 4097394 at *5 (Sup. Ct. Schuyler Co. Nov. 6, 2007) (finding probable cause to believe respondent is a sex offender requiring civil management based in part on conduct while on parole).

The Court also concludes that there is ample probable cause to believe that respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility pending trial. Respondent's criminal history demonstrates his capacity to commit dangerous acts, and there are forceful reasons to believe that he would pose a significant danger to the community if not confined pending trial. First of all, respondent is not taking his prescribed medication. Second, he is not currently participating in a sex offender program. Third, he did not complete a sex offender program while incarcerated. Fourth, he is alleged to have masturbated in front of a nurse, has reportedly had multiple outbursts while confined at MPC, and supposedly walked around in an open bathrobe at least once, potentially exposing [*7]himself while in the facility. Finally, and even more significantly than those disputed events, both Dr. Langer and the other professionals who proffered opinions about respondent's risk of re-offending all agree: he falls on the high end of the scale for sexual recidivism. Dr. Langer also opined that respondent should be treated in a secure facility because he would pose a danger to the public if treated in an outpatient or community-based setting. See In the Matter of State v. K.A., 2008 NY Slip Op. 50103(U), 2008 WL 142330 at *6-7 (finding confinement appropriate pending trial based in part on high score on Static 99 test and psychiatrist's opinion that respondent posed a danger to the public); In the Matter of State v. O.V., 2008 NY Slip Op. 28016, 2008 WL 162142 at *5 (same).

For the foregoing reasons, the Court finds that there is probable cause to believe that respondent is a sex offender requiring civil management and that he is sufficiently dangerous to require confinement because there are no lesser conditions of supervision that will suffice to protect the public during the pendency of the proceedings.

Accordingly, it is hereby ORDERED that respondent is committed to a secure treatment facility designated by the Commissioner of Mental Health for care, treatment and control upon his release; it is further ORDERED, that the trial of this matter is scheduled for May 9, 2008, or for such other date as the parties may agree to or the Court requires; and it is further ORDERED, that respondent shall not be released pending the completion of the trial. See MHL §10.06(k).

Dated:March 10, 2008

Bronx, New York

______________________________

Joseph J. Dawson, A.S.C.J. Footnotes

Footnote 1: Both sides agree that it was the petitioner's burden during the hearing to show probable cause to believe that respondent is sufficiently dangerous to require continued confinement pending trial. See id.; see also State v. J.J., Jr., 2008 NY Slip Op. 28031, 2008 WL 268586 at *4-6 (Sup. Ct. Nassau Co. Jan. 31, 2008); People v. Brooks, 2008 NY Slip Op. 28068, 2008 WL 515152 at *4-6 & n.6 (Sup. Ct. Kings Co. Feb. 27, 2008).

Footnote 2: As Chief of Psychiatry, Dr. Langer's responsibilities include administering the psychiatric department, supervising psychiatrists, and ensuring the quality of psychiatric programs and services at MPC, which has two programs specifically designed to treat sex offenders: the STOP program and the Sexually Violent Predator Program. See, Minutes, 3/4/08 at pp. 18-20.

Footnote 3: When respondent was due to be released from prison, he was civilly confined under Article 9 of the MHL. See In the Matter of State v. C.B., 18 Misc 3d 1136(A), 2008 WL 483750 (Sup. Ct. Bronx Co. Feb. 22, 2008).

Footnote 4: Dr. Langer testified that respondent was counseled about this allegation on or about June 19, 2007, and there is no suggestion that he subsequently engaged in any similar behavior. Id. at pp. 32-33.

Footnote 5: This incident is described in the report of Dr. Krueger, who suggested that the matter be more fully investigated because respondent had denied engaging in this behavior. Specifically, respondent claimed that the nurse had, on three or four prior occasions, paid him to play with her breasts and vagina and had requested oral sex from him, which he declined. According to respondent, the nurse "framed" him by accusing him of masturbating to cover up her own wrongdoing after another inmate allegedly saw her trying to titillate respondent by pulling out her breasts and unbuttoning her panties. See, Petitioner's Exhibit 7.

Footnote 6: For example, while respondent's assertion to Dr. Krueger that the nurse "framed" him may be developed further at the trial, it does not, standing alone or in combination with any of the other proof elicited at the hearing, alter the Court's conclusion regarding probable cause.

Footnote 7: The fact that one doctor suggests that respondent might not be bipolar does not alter the Court's conclusion that there is probable cause to believe that respondent suffers from a mental abnormality.