Matter of State of New York v Pagan
Annotate this CaseDecided on March 26, 2010
Supreme Court, Queens County
In the Matter of the Application of State of New York, Petitioner, For Commitment pursuant to Article 10 of the Mental Hygiene Law
against
Angel Pagan, Respondent
256/09
Andrew Cuomo, New York State Attorney General
(Anthony Miller, Esq. Assistant Attorney General)
For the State of New York
Mental Hygiene Legal Services (Peter Scheidt, Esq and Jaime N. Doung, Esq. Attorneys for Respondent)
Stephen A. Knopf, J.
A hearing was conducted before this Court on February 19, 2010 pursuant to Article 10 of the Mental Hygiene Law to determine whether there is probable cause to believe that the respondent is a sex offender requiring civil management. See MHL 10.06(g). In particular, this Court must determine whether there is probable cause to believe that the respondent suffers from a mental abnormality and therefore, is a sex offender requiring civil management. See MHL 10.03 (q). Next, this Court must determine whether there is probable cause to believe that the respondent is sufficiently dangerous to require confinement in a secure treatment facility during the pendency of the proceedings herein and that lesser conditions of supervision will not be sufficient to protect the public. See Judge Lynch's decision in [*2]Mental Hygiene Legal Service v Spitzer, 2007 WL 4115936 (S.D.NY).
At the outset, this Court notes that respondent's conviction for sodomy in the first degree on June 6, 2005 qualifies him as a sex offender, in that he was convicted of a felony defined in article one hundred thirty of the penal law of this state. See, MHL 10.03 (p)(1). In addition, this Court recognizes that respondent is a detained sex offender as defined in MHL 10.03 (g)(1), and is currently in the custody of the New York State Department of Correctional Services (DOCS).
This Court must determine whether there is probable cause to believe that the respondent, as a "detained sex offender", "suffers from a mental abnormality". MHL 10.03 (q). "Mental abnormality" 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 offense and that results in that person having serious difficulty in controlling such conduct". MHL 10.03 (i).
The sole witness who testified at this probable cause hearing herein was a clinical psychologist licensed in the State of New York, Dr. Ronald Field. This Court determines that he was a credible witness. All factual determinations related to this Court's probable cause determination are based upon his testimony and the documents admitted into evidence at the hearing.
Ample evidence was presented at this hearing that respondent suffers from a "mental abnormality". In support of his findings, Dr. Field relied on his personal interview of the respondent on September 16, 2009 and a review of various documents including the respondent's personal and criminal history, the respondent's pre-sentence investigation reports, summaries and status reports from the Division of Parole, sex offender counseling notes, treatment plans, minutes of court proceedings and psychological tools. Dr. Field articulated the following factors; "...he suffers from the diagnosis of pedophilia as evidenced by the three sex offenses perpetrated against young children; his own admission to sexual behavior involving young children; his admission that he knows that he has problems with young children in terms of sexual offending. Those tend to weigh heavily on the predisposition factor in the definition of mental abnormality and the defendant (should be: respondent) to control issues to do with having multiple offenses, one of which was committed while on parole for a prior offense, having had sanctions and consequences for offending and continued to offend having three of the incidents occur in public places with a high likelihood of being detected and also the threat of force that was used in two of the incidents".[Hearing transcript, hereafter abbreviated H, H 55-56]. In addition, regarding treatment for sex offender behavior, "...individuals that do complete treatment are [*3]generally at lower risk for recidivism. Not only has Mr. Pagan not completed treatment, but he was actually moved back to an earlier phase of treatment for not participating and for lack of participation and progress in the sex offender treatment; so I can't I can not give the benefit of having completed treatment in terms of looking at his overall risk for reoffending". [H 54] Dr. Field described the psychological tool known as the Static 99 test "... a questionnaire-like instrument that was developed to estimate sex offenders' risk for reoffense".[H 56] (In the version of the test used, the respondent scored a 6, which placed him in a high risk range for reoffending.) Dr. Field added "...that the score actually underestimates his risk for reoffense in that he's offended well into his late fifties". [H 57-58]
Dr. Field determined that respondent suffers from "...pedophilia attracted to both males and females not exclusive type". [H 27] He elaborated on his diagnosis explaining that: "Basically its intense recurrent sexual urges, thoughts or behaviors involving sexual activity with prepubescent children generally age 13 and younger. This has to occur over at least a six month period and the individual has to be at least 16 years old and at least five years older than the victim". [H 27].
During the personal interview, Dr. Field reviewed the respondent's sexual criminal history. "[H]is first sexual offense was committed at age 31 and ...the three victims in his record were a male and female age ten and a female age twelve". [H 27-28] The respondent "...admitted in the interview to these behaviors as well as stating that he has a problem with children in terms of sexual behavior". [H 28]
As to the 1972 arrest, the respondent told Dr. Field that "...he went up to a ten year old girl on the street, asked her to help him with something, and that he touched her over her clothing in the area of the vagina and buttocks and had open in his possession a folding barber razor" [H 31]. Court records reflect that this incident took place between the respondent and a ten year old girl on a Brooklyn street in daylight outside an industrial building. [H 35]. Court records reflect that as to this incident, the respondent was convicted after trial of rape in the first degree, sexual abuse in the first degree and sexual misconduct. From this incident, Dr. Field concluded that the respondent had "...difficulty to control behavior in that this was a risky situation with a high likelihood of being detected". [H 37] "The fact that they weren't known to each other speaks to impulsive behavior as opposed to planned grooming behavior which accounts for some child molestations and also that there was a degree of threat of force with the use of the knife". [H 37] When Dr. Field was asked how that ties in with "mental abnormality" as defined under Article 10 of the Mental Hygiene Law, Dr. Field replied that: "...it has to be included with the rest of Mr. [*4]Pagan's sexual criminal history in that it ties in with the diagnosis of pedophilia, the predisposition committing sex offense and difficulty to control behavior." [H 37-38]
As to the 1978 arrest the respondent told Dr. Field that "...this was another stranger that he met on the street... a ten year old boy who he asked to help him move some furniture. He took the boy up to the roof of his building and he told me that he took off the boy's pants and touched his penis to the boy's buttocks". [H 38] Courts records indicated that the respondent "...threatened to throw the boy off the roof and attempted to have sexual contact with the boy". [H 38] Dr. Field added that the psychological significance of this incident was that "...this was in a public place with... a high degree of detection. So it speaks to the risk level and the serious difficulty controlling and the fact that Mr. Pagan would conduct these behaviors in areas that with a high likelihood of detection speak highly to the serious difficulty in controlling his behavior".[H 45] As to the psychological significance that respondent was on parole at that time, Dr. Field replied that: "Well again, after receiving sanction and being on post-release supervision from prison, it speaks to the difficulty to control behavior." [H 45] Court records reflect that as to this incident, the respondent was convicted upon plea of guilty of attempted reckless endangerment in the first degree.
As to the 2005 case, Dr. Field stated that: "Mr. Pagan told me that the victim in this case was a 12 year old girl who was the daughter of his wife's nephew, that on prior occasions he babysat this girl and that on ... one occasion in the girl's apartment he pulled down her pants, and placed his penis on her or in her buttocks and ejaculated. He denied penetrating the victim." [H 46] Dr. Field continued that: "On a second occasion, similar incident occurred in a stairwell in the building and that he ejaculated on the floor". [H 47] Court records reflect that as to this incident, the respondent was convicted upon plea of guilty of sodomy in the first degree. Dr. Field stated that the psychological relevance of this misconduct was: "Again there is a high likelihood of detection. It's a public place where somebody's more likely to encounter this activity, so it speaks to the difficulty to control behavior." [H 47]
Based on all the evidence presented at the hearing, this Court concludes that there is probable cause to believe that respondent suffers from a "mental abnormality" and that he is, accordingly, a sex offender requiring civil management.
Finally, this Court must determine whether there is probable cause to believe that the respondent is sufficiently dangerous to require confinement in a secure treatment facility during the pendency of the remaining proceedings. As noted previously, it is in the expert opinion of Dr. Field that respondent has a high [*5]risk for sexually re-offending. It is his opinion that respondent is sufficiently dangerous to require treatment in a secure facility and that there is no less restrictive alternative that would protect the public from the respondent.
In evaluating whether respondent is sufficiently dangerous to require confinement in a secure facility, Dr. Field again relied on his interview with the respondent, the respondent's personal and criminal history, probation and parole history, treatment notes, court records, minutes of court proceedings and psychological tools. It is Dr. Field's conclusion that if the respondent was released to the community during the pendency of these proceedings, he would be dangerous to the community. [H 61] Dr. Field based these conclusions on "...the fact that he committed an offense while on parole supervision; also that his offenses tended to be impulsive; and didn't require a lot of time to set up or plan; and he also has ...history of several offenses including one, you know, at a much later age than would normally be expected" ...[H 61] It is Dr. Field's opinion that no less restrictive alternative other than confinement in a secure facility is warranted. Dr. Field concluded, within a reasonable degree of psychological certainty, that the only appropriate place for the respondent during these proceedings is a secure facility. [H 62]
Based on the respondent's poor past performance, this Court must conclude that the respondent would not be compliant with less restrictive alternatives. This Court further concludes that less restrictive alternatives would not be sufficient to protect the public, and that accordingly, there is probable cause to believe that respondent is sufficiently dangerous to require confinement in a secure treatment facility during the pendency of these proceedings. Such confinement is therefore ordered herein.
The foregoing constitutes the order, opinion and decision of this court.
_________________________
STEPHEN A. KNOPF, J.S.C.
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