Matter of State of New York v Floyd Y.
Annotate this CaseDecided on August 18, 2015
Supreme Court, New York County
In the Matter of the Application of The State of New York, Petitioner,
against
Floyd Y., Respondent, For Commitment Under Article 10 of the Mental Hygiene Law.
30061-2008
New York State Attorney General Eric Schneiderman (Anthony Miller and Cheryl Henderson, of counsel) for the State.
Mental Hygiene Legal Services (Donald Graham, of counsel) for the Respondent.
Daniel P. Conviser, J.
The Respondent is the subject of a petition for sex offender civil management pursuant to Article 10 of the Mental Hygiene Law ("Article 10", the Sex Offender Management and Treatment Act, "SOMTA"). The instant decision addresses this Court's determination that the Respondent, who has been ordered to be released from confinement to Strict and Intensive Supervision and Treatment (SIST), shall reside in Clinton County, rather than Oswego County, where the State believes he should be housed. The State's view that Mr. Y. should live in Oswego County is primarily based on a temporary housing cost reimbursement issue discussed infra.
This case has an extraordinarily long history, only some of which will be outlined here. Mr. Y. has been confined under the Mental Hygiene Law since the fall of 2005 awaiting a final resolution of this proceeding. He was initially found after a jury trial presided over by Justice Nunez of this Court to be a detained sex offender who suffered from a mental abnormality under Article 10 and ordered confined. Appellate proceedings eventually resulted in a reversal of that judgment by the New York Court of Appeals in the landmark case of State v. Floyd Y., 22 NY3d 95 (2013) which created new evidentiary rules for Article 10 proceedings.
On remand after a jury trial presided over by this Court, the Respondent was again found to be a detained sex offender who suffers from a mental abnormality on January 30, 2015. This Court subsequently dismissed the instant petition based on recently announced controlling Court of Appeals precedent in a decision on March 10, 2015. State v. Floyd Y., 46 Misc 3d 1225 (A) (New York County Supreme Court 2015). The State then obtained a stay of this Court's order dismissing the petition from the First Department pending appeal. On June 17, 2015 this Court [*2]conducted a dispositional hearing at which the State presented one witness who testified that the Respondent did not meet the criteria for being a dangerous sex offender requiring confinement under Article 10. Based on that evidence, without objection, this Court issued an order directing the Respondent to be placed on SIST. However, at a proceeding today, the Court learned for the first time that the State believes Mr. Y. should not be released on SIST but rather should continue to be confined, notwithstanding the contrary views of the State's sole psychiatric witness. The State's counsel today could offer no explanation for this position, which she described as one held by the State Office of Mental Health ("OMH") rather than one formulated by the State Attorney General's office.
Following the June 17, 2015 dispositional hearing and multiple subsequent proceedings during which Mr. Y.'s housing placement was discussed, this Court ordered the State to present proposed SIST conditions and a Community Service Plan for the Respondent's residence in Clinton County on August 11, 2015. Today, the Court issued an order directing the Respondent's release to Clinton County. The Respondent has identified what appears to be an appropriate placement for him at the Beacon Motel in Plattsburgh, New York, where the Court understands other SIST respondents are being housed and supervised. The Court ordered the Respondent's release to that location.
Last week and today, the State maintained that there are no beds available at the Beacon Motel. Respondent's counsel, however, reported today that there were currently beds available at the motel. He said he learned this by calling the motel. As this Court outlined on the record today, the Beacon Motel is the only location which has been identified in Clinton, Essex or Franklin counties which would be a suitable current placement for Mr. Y. As the Court further outlined, in the event there is no space available at that location and a suitable alternative location cannot be identified, Mr. Y. will have to remain confined at the Central New York Psychiatric Center (CNYPC) until a placement can be identified. The Respondent and his counsel indicated today that they understand and accept that.
Notwithstanding today's release order, the State indicated it would need up to two weeks to begin Mr. Y.'s SIST supervision. This Court first directed the State to investigate a SIST placement for Mr. Y. in Clinton, Essex or Franklin counties two months ago. Today's order specifies all of the conditions Mr. Y. will be subject to, the name of his parole officer, his residence and every other aspect of his Community Service Plan. When asked by the Court why the State needed up to two additional weeks to release Mr. Y. to supervision, the State could provide no specific information. With respect to the timing of Mr. Y.'s release, it is worth remembering that he has been confined for almost ten years awaiting a final resolution of this case. There have been valid reasons for much of that delay and the question of whether Mr. Y. has been deprived of procedural or substantive due-process by virtue of this ten year confinement is not currently before this Court. Indeed, as noted supra, this Court determined five months ago that the current petition against Mr. Y. should be dismissed for other reasons. In this Court's view, however, the delays in finally resolving this case are completely unacceptable and should serve as an impetus for everyone, including the State, to act with all appropriate speed to finalize Mr. Y.'s placement. The State is hereby ordered to release Mr. Y. to supervision in Clinton County (assuming a bed is available) on or before August 25, 2015 (one week from today) or alternatively appear before this Court to explain the specific reasons for the delay.
The State has continuously objected to housing the Respondent anywhere other than Oswego County. It has objected to placing Mr. Y. in Clinton, Essex or Franklin counties where he says he would like to live. This Court, however, does not believe Oswego County is an appropriate placement for the Respondent for multiple reasons.
First, according to the State, "all of Respondent's . . . victims [and] offenses . . . emanate from Oswego County and its immediate area".[FN1] During Mr. Y.'s first trial, the State identified nine victims it asserted had been sexually abused by Mr. Y, most of whom were minors.[FN2] This Court understands from discussions with the Attorney General's office during the trial that a number of these victims and their families continue to live in Oswego County. The Article 10 statute provides that among the SIST conditions the Court must consider imposing are "prohibition of contact with identified past or potential victims" MHL § 10.11 (a) (1). That would obviously be difficult were Mr. Y. placed in a small community where his prior victims and their families continued to live.
Second, according to the State, they have been in contact with the Respondent's mother, aunt and uncle who all live in the vicinity of Clinton County. These close relatives have said they will not be able to provide housing for Mr. Y. However, they have said they will be "supportive of [Mr. Y.] in any way they can including food, clothes and furniture".[FN3] The Respondent says that these family members have been in contact and supportive of him throughout his long confinement. Mr. Y. would have strong family support in Clinton County, support which, in this Court's view, would greatly increase his chance to live a law abiding life. That support would be largely unavailable if he were domiciled in Oswego County because of the great distance between his family and Oswego. An internet search reveals that the travel time by car between Plattsburgh and the City of Oswego is more than four hours. Mr. Y. is 56 years old. His mother, and presumably his aunt and uncle are significantly older.
Third, apparently for both of these reasons, Mr. Y. has a strong preference to not return to Oswego County and prefers to live in Clinton, Franklin or Essex counties. Indeed, his desire to not return to Oswego County has been so strong that he has elected to continue to be confined at CNYPC rather be released to Oswego County. Mr. Y. could have been released to Oswego County more than one month ago.
Fourth, while the State's proposal for placement in Oswego County notes only that Mr. Y. would be "undomiciled" (presumably living in a homeless shelter) the Respondent has identified [*3]what appears to be a suitable placement and proximate supportive services in Clinton County. According to the Respondent's counsel, the parole office in Clinton County is five miles from the Beacon Motel. SIST respondents in the area all attend a sex offender treatment program in that same building. On the other hand, the State's proposed Community Service plan for Mr. Y.'s residence in Oswego which was presented to this Court indicated that his supervising parole officer would be in Syracuse and that his treatment services would be in Syracuse and Fulton. Id. Those locations are not unduly far away but would not appear to be as close as the Clinton facility.
It is obvious to this Court that public safety and purposes of SIST would best be served by the Respondent's placement in Clinton, Essex or Franklin counties. The State has offered no arguments which contest any of the above-mentioned points. They rather raise a reimbursement issue regarding the payment for Mr. Y.'s housing. The State maintains that since Mr. Y.'s last residence prior to his confinement was in Oswego County, he would not be able to receive housing support from a social services district in another county for a period of between 30 and 45 days, the period he would need to live to establish residency and successfully apply for benefits in a new county. It is undisputed that such housing support would be immediately available in Oswego County because that is where Mr. Y. last lived prior to his extended confinement.
The Respondent's counsel has indicated that based on multiple conversations he has had with officials in Clinton County, however, that is not the case. Rather, he has maintained that based on a number of these conversations, were this Court to order Mr. Y. to reside in Clinton County, the county would provide immediate temporary assistance to him until residency was established. Like many other aspects of Mr. Y.'s release, this has been a constantly moving target. He also indicates that Mr. Y.'s family would be able to pay his motel bills at least for a brief period were he placed in Clinton County.
This Court has urged the State to find a way to address this temporary reimbursement issue in a constructive way so that Mr. Y. is able to live in Clinton County. As far as the Court can discern, the State has made no effort to do that. They rather continue to object to placing Mr. Y. on SIST at all (contrary to the uncontested views of their own retained psychologist) and assert that if he is placed on SIST it should be in Oswego County. This Court is aware, of course, that courts must respect the separation of powers and refrain from micro-managing the way in which state administrative agencies perform their work. During the 7 years in which this Court has presided over Article 10 cases, it has been very conservative in construing its own authority under the statute. This Court has held, for example (contrary to the initial decisions of other trial courts) that it is not empowered to tell OMH which of its facilities should be used to house specific confined sex offenders, even when the Court strenuously disagrees with individual OMH placement decisions. See, e.g., D.S. v. Hogan, 22 Misc 3d 527 (New York County Supreme Court 2008). This Court also recognizes that the state agencies which manage SIST offenders have a very difficult job and, in this Court's experience, generally do that difficult job in an effective and appropriate way.
It is the statutory obligation of the court, however, to determine SIST conditions. See, MHL § 10.11 (a) (2) ("The court shall issue an order specifying the conditions of the regimen of strict and intensive supervision and treatment.") Those conditions include "specification of [*4]residence or type of residence". MHL § 10.11 (a) (1). State agencies have an essential role in developing and recommending SIST conditions. Id. But neither the State Department of Corrections and Community Supervision (DOCCS) nor OMH have the ultimate responsibility to determine what those conditions are. Moreover, the Court, under the statute, is explicitly obligated to require DOCCS to implement the plan the court has ordered. ("The court shall require the department of corrections and community supervision to take appropriate actions to implement the supervision plan and assure compliance with the conditions of the regimen of strict and intensive supervision and treatment"). MHL § 10.11 (a) (2).
The ultimate worst case scenario the State has raised with respect to Mr. Y.'s placement in Clinton County is that the State, through DOCCS, would be required to pay Mr. Y.'s motel bill for a few weeks until he had established permanent residency. This Court is convinced, based on all of the numerous discussions it has conducted with the parties in this case, that this worst case scenario will not occur. But if the worst happens, this Court is also convinced that the State of New York has the resources to weather the storm.
DOCCS had a state operations budget during State Fiscal Year 2014-2015 of approximately $2.8 billion.[FN4] In a 2010 article, the Rochester Democrat and Chronicle estimated the annual cost to house a convicted sex offender like Mr. Y. in an OMH secure facility for one year at $175,000 (or $479 per day).[FN5] Using that figure, the State has thus far expended almost $1.75 million to house Mr. Y. during the ten years he has been confined awaiting a resolution of this case. That figure does not include the cost of the case's ten years of trial and appellate proceedings. The meter is still running. According to a 2013 State Comptroller's audit, "[f]or the two fiscal years ended March 31, 2014, OMH budgeted over $110 million for its SOMTA program expenses".[FN6] The State has also had to bear the cost of transporting Mr. Y. from CNYPC in Oneida County to Manhattan and back on multiple occasions using multiple security staff while the dispute about Mr. Y.'s housing has continued. According to the uncontested information provided by Respondent's counsel, on the other hand, the daily rate at the Beacon Motel is $45.
There are two choices here. The State's preferred SIST placement, in this Court's view, [*5]would cast Mr. Y. adrift in a locale where he would have no family support and primarily be connected only to his prior criminality. The second would provide him the best chance to live a law-abiding life. This Court believes the second option is the only appropriate one.
August 18, 2015__________________________
Daniel Conviser, A.J.S.C. Footnotes
Footnote 1:See State v. Floyd Y., 43 Misc 3d 1202 (A), 2014 NY SlipOp 50454 (U) at 2, 3 (New York County Supreme Court, 2014) (decision by this court) quoting State's affirmation in support of venue change motion.
Footnote 2:Evidence concerning a number of instances of such alleged abuse which did not result in criminal convictions were precluded from being presented by the State during Mr. Y.'s second trial by virtue of the Court of Appeals decision in State v. Floyd Y., supra.
Footnote 3:New York State Department of Corrections and Community Supervision, Community Investigation for Article 10 Sex Offender Management and Treatment Act regarding respondent, June 22, 2015.
Footnote 4:New York State Division of the Budget, Executive DOCCS Budget proposal for SFY 2015-2016 (available on the web) (describing available budget amounts for the agency during the preceding state fiscal year 2014-2015).
Footnote 5:"Civil confinement of sex offenders costs state $175,000 apiece", Rochester Democrat and Chronicle, December 24, 2010. The Court recognizes this figure may not precisely reflect the current per-capita cost of housing SOMTA offenders in secure treatment facilities. OMH issues an annual report providing extensive data about the SOMTA program but this report does not include cost information. See "2013 Annual Report on the Implementation of Mental Hygiene Law Article 10, New York State Office of Mental Health (July, 2014).
Footnote 6:"Sex Offender Management and Treatment Act Program Report 2013-S-21, Office of the New York State Comptroller. This audit found that OMH properly expended its budgetary resources for appropriate SOMTA program purposes.
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