Matter of William J. v State of New York
Annotate this CaseDecided on June 30, 2015
Supreme Court, Oneida County
In the Matter of the Application for Discharge of William J., Petitioner,
against
The State of New York, The New York State Office of Mental Health and The New York State Department of Corrections and Community Supervision, Respondents.
CA2014-000246
For the Petitioner:
Mental Hygiene Legal Service
Fourth Judicial Department
Emmett J. Creahan, Director
by: Benjamin D. Agata, Esq., of Counsel
For the Respondents:
State of New York
Office of the Attorney General
Eric T. Schneiderman, Esq., Attorney General
By: Sean B. Virkler, Esq., of Counsel
Louis P. Gigliotti, J.
In this proceeding William J. has petitioned for discharge from civil confinement after having received an annual written notice from the Commissioner of the New York State Office of Mental Health pursuant to Mental Hygiene Law ("MHL") §10.09. The Court appointed Mental Hygiene Legal Service ("MHLS") to represent William J. and Leonard A. Bard, Ph.D., was appointed to conduct an independent psychiatric evaluation of him.
A clinical interview of William J. was conducted by Dr. Bard on August 19, 2014. A written report was issued by Dr. Bard dated September 24, 2014 wherein he found that William J. cannot be diagnosed with any paraphilic disorder but that he does meet the diagnostic criteria for Antisocial Personality Disorder ("ASPD"). Dr. Bard originally opined that William J.'s diagnosis of ASPD meets the statutory definition of a "mental abnormality" given its association with past incidents of substance use and sexual misconduct. Dr. Bard assessed William J.'s risk [*2]to commit future sex offenses at low to moderate and opined he was not a "dangerous sex offender requiring confinement" and could be effectively managed in the community under conditions of Strict and Intensive Supervision and Treatment ("SIST"). Shortly thereafter, Dr. Bard submitted a revised report [FN1] in which he stated that, given the recent Court of Appeals' Decision that the diagnosis of ASPD does not meet the statutory definition of a mental abnormality, he could no longer opine that William J. currently meets the statutory criteria for a "mental abnormality".
Danielle Tope, Psy.D., a Licensed Psychologist for the Office of Mental Health ("OMH") conducted an interview with William J. via Video Teleconference on December 19, 2013 and prepared a psychiatric evaluation of him embodied in a written report dated December 31, 2013. Dr. Tope opined that William J. currently suffers from a "mental abnormality" and meets the criteria for continued confinement.
On January 27, 2014, the Commissioner of the Office of Mental Health, based upon a review of relevant records and reports including Dr. Tope's evaluation, determined William J. to currently be a "dangerous sex offender requiring confinement" as defined in MHL §10.03(e).
A brief history of this matter reveals that William J., currently 50 years old, has a history of violent offenses which has included assaultive and/or sexually violent behavior towards females. William J. was initially arrested on April 26, 1991 and charged with Sodomy 1 , Attempted Rape 1 and Sexual Abuse 1 . In a supporting deposition, the victim asserted that William J., while a guest in her home, tore off her clothing and attempted to perform oral sex on her while she resisted. The charges were dismissed on May 29, 1991, when the victim failed to show up to Court. William J. was involved in an incident in November, 1992, in which the female victim alleged William J. and a co-defendant abducted her and then forcibly raped and sodomized her while in a car. William J. stated he and the co-defendant had solicited a prostitute and the co-defendant offered to pay for William J. to have sex with her but he declined. William J. explained the prostitute later went to the police and he was charged with Rape 1 , Sodomy 1 and Kidnapping 2 . Records indicate William J. pled guilty to Disorderly Conduct and was sentenced to time served.
William J. was arrested on December 28, 2001 and charged with Rape 1 . He allegedly picked up a woman who was a prostitute, drove her in his truck to a place near a cemetery and forced her to perform oral sex on him. William J. reported that he smoked crack with the woman, promised to pay her $20.00 for the oral sex but then pushed her out of the truck without giving her the promised money. William J. attempted to flee the scene but the woman noted his license plate and he was later arrested. William J. pled guilty to Attempted Sexual Misconduct and was sentenced to a term of incarceration of 90 days and a conditional discharge.
In 2003, William J. was charged with two separate sexual offenses. The first offense occurred on October 2, 2002 when William J. picked up a woman on her way to a bar by offering her drugs. He drove her to a cemetery, grabbed her by the hair, punched her in the back of her head and forced her to engage in oral, anal and vaginal sex. The second offense, which occurred in September, 2003, involved a similar pattern. William J. picked up another woman, took her to [*3]a secluded place where they smoked crack and then forced her to perform oral sex on him by choking her and penetrating her anally with his finger. William J. reported that these two incidents occurred as part of "sex-for-drugs" arrangement. William J. pled guilty to Sexual Abuse 1 (2 counts) on February 23, 2004 and was sentenced to three years incarceration and three years post-release supervision.
William J. was released from incarceration on parole in 2005 but violated his parole by using substances and not abiding by his curfew. He served an additional 16 months incarceration and a Petition for Civil Management under MHL Article 10 was filed against William J. on November 26, 2007. William J. was admitted to Central New York Psychiatric Center ("CNYPC") on December 27, 2007. William J. waived his right to a jury trial on July 15, 2008 and stipulated to a finding that he suffers from a mental abnormality requiring civil management under a regimen of SIST.
William J. was released on SIST on August 5, 2008. A day later he violated his curfew and following testing was found to have used cocaine. He was taken into custody on August 7, 2008 and confined again within the Department of Corrections and Community Supervision (herein "DOCCS"). William J. remained in DOCCS custody to complete his criminal sentence until a release to SIST on June 10, 2010. On September 1, 2010, William J. violated his curfew by returning two hours late to his residence. He reported he had been getting high and using cocaine which was confirmed by a toxicology screen. William J. was evaluated by Paul Etu, Psy.D., and on September 7, 2010, the State of New York filed a petition seeking a finding that William J. was a "dangerous sex offender requiring confinement". Pursuant to an Order dated January 28, 2011, William J. was found to be dangerous and he was returned to CNYPC.
William J.'s first MHL §10.09 psychiatric examination was conducted by Ivan Kruh, Ph.D., employed by OMH and Erik Schlosser, appointed by the Court at the request of MHLS. Both doctors issued a written evaluation and both opined William J. was still a "dangerous sex offender requiring confinement". Thereafter, William J. filed a Notice of Affirmative Waiver. The Court accepted the waiver and issued an Order of Continued Confinement on April 24, 2013.
William J. filed a petition for discharge or release under a regimen of SIST pursuant to MHL §10.09 on November 10, 2014. The within Annual Review Hearing was conducted on January 21, 2015. The expert witnesses who testified were Dr. Tope called by the Office of the Attorney General on behalf of OMH and Dr. Bard called by MHLS on behalf of William J. The written reports of the two psychiatric examiners and various other exhibits were received in evidence and have been reviewed by the Court.
Dr. Tope testified that because she prepared her report in December, 2013 she reviewed William J.'s progress notes and treatment plans to date. She noted that she also scored the Psychopathy Checklist - Revised ("PCL-R") for William J. after she prepared her report. Dr. Tope stated she diagnosed William J. with ASPD, Stimulant (Cocaine) Use Disorder and Alcohol Use Disorder and that he currently meets the criteria for all of these disorders.
Dr. Tope maintained that ASPD can predispose a person to commit sex offenses and can result in that person having serious difficulty controlling his sexual conduct. She explained that in William J.'s case, his ASPD is significantly impacted by a multitude of factors. Dr. Tope opined William J. currently has a "mental abnormality" as defined under Article 10 of the MHL [*4]due to the combination of factors with his ASPD including psychopathic traits, substance use, sexual preoccupation and, in her opinion, paraphilic interests.
Dr. Tope testified that while stimulant (cocaine) and alcohol use disorders do not cause a person to commit sex offenses, in William J.'s case they are "strongly fused for him" and contribute to his sex offending. She explained William J. has spoken about reinforcing his sexual interests and behaviors with his substance use. William J. disclosed a compulsive desire to have oral sex after smoking "crack" cocaine and that he has repeatedly linked and connected his drug use to sex offenses. Dr. Tope stated William J. recognized components of the link between his drug use and his offending as he made statements that, under the use of drugs, he would be highly likely to re-offend. She related that William J. has almost exclusively relied on the "sex for drugs" trade as the explanation for his sex offenses.
Dr. Tope explained that sexual preoccupation means intense interest in a sexual activity that dominates an individual's thoughts or behaviors. She testified that although it is not listed in the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition ("DSM-5") as a distinct disease or disorder, it is considered a diagnosable condition that falls under the category Other Specified Sexual Dysfunction. She also noted there is reference to hyper sexuality or excessive sex drive in psychological literature. Dr. Tope testified William J. reported a half dozen sexual partners and over 30 instances of contact with prostitutes, even though he had a consenting adult partner available to him. She noted the "escalating pattern" of sex with prostitutes and the compulsive desire to engage in oral sex while on "crack" cocaine is a significant factor in William J.'s sex offenses and leads to serious difficulty in controlling his sexual conduct.
Dr. Tope testified William J. is presently in Phase II of the sex offender treatment program at CNYPC and has been in Phase II for four years. She stated he has not made significant progress in working on his sexual deviance and, therefore, still does not have a sufficient understanding of the deviant elements associated with his offending or his objectification of women.
Dr. Tope opined William J. was not ready for placement on SIST. She related he has performed poorly under community supervision in the past. Dr. Tope calculated a score of 6 for him on the Static-99R, which she testified placed him in the high-risk group. As indicated, she also scored William J. on the PCL-R and found that he exhibited a high degree of psychopathic traits. Dr. Tope asserted that the combination of a high psychopathic traits and the presence of sexual deviance increases an individuals risk of recidivism. She also listed in her report the dynamic risk factors that currently remain present for William J.
On cross-examination, Dr. Tope acknowledged she did not diagnose William J. with a paraphilic disorder at present given the ambiguity of some significant markers. Dr. Tope also acknowledged that, while William J. violated SIST in 2010 by using cocaine, he did not commit a sex offense. She reiterated her belief that with the use of cocaine or other substances, William J. is so compulsive that he cannot control his deviant urges to commit sex offenses.
After hearing oral argument, the Court reserved decision on a motion made by MHLS on behalf of William J. for a directed verdict based upon insufficiency of evidence presented by the Office of the Attorney General to establish that William J. currently suffers from a "mental abnormality".
Thereafter, Dr. Bard testified that after he reviewed records and interviewed William J. at [*5]CNYPC for about two hours he prepared two reports. He stated his diagnostic findings were the same in each report, i.e. he diagnosed William J. with ASPD as the primary diagnosis and "polysubstance abuse" involving cocaine and alcohol. Dr. Bard explained that after he reviewed the decision rendered by the Court of Appeals in Donald DD., supra, it was his opinion that William J. does not meet the legal criteria for a mental abnormality under MHL Article 10.
Dr. Bard stated that a substance use disorder does not predispose one to the commission of conduct constituting a sex offense and, therefore, cannot be the basis for a finding of "mental abnormality". He noted that this was proven in William J.'s case by the absence of any evidence of sex offenses during times he was in the community under supervision and under the influence of substances. Dr. Bard noted that William J. does not offend because of an uncontrollable deviant arousal but, instead, makes a choice to offend.
Contrary to the assertion of Dr. Tope, Dr. Bard testified that William J. does not have any paraphilic traits or disorder, noting that "objectifying women" does not make him paraphilic. In addition, he stated that the pattern of William J.'s offenses do not establish a paraphilia.
After noting that William J.'s last two releases on SIST failed because of his abusing substances, Dr. Bard acknowledged that substance use is going to be the issue for William J. if again released to the community. However, Dr. Bard pointed to a notation in William J.'s Individual Service Plan (herein "ISP") of November 19, 2014 which indicated that he had made significant progress in reference to his substance use issues. Nonetheless, Dr. Bard also acknowledged that he was "hesitant" about William J.'s "outright release" to the community without supervision due to his long standing substance use. Dr. Bard also confirmed that, during his interview, William J. admitted that if he uses drugs in the community, he is likely to commit a sex offense.
After reviewing all of the evidence in this case, and reviewing the post hearing submissions of counsel, the Court first denies the motions made by MHLS at the hearing for a summary determination on this issue of "mental abnormality". Moreover, the Court finds that the Office of the Attorney General has proven by clear and convincing evidence that William J. still suffers from a "mental abnormality" as defined in MHL §10.03(i). However, the Court finds that the Office of the Attorney General has failed to prove by clear and convincing evidence that William J.'s is currently so dangerous that he needs to remain confined at the secure treatment facility.
As to the issue of "mental abnormality" both experts diagnosed William J. with essentially the same disorders i.e. ASPD and Stimulant (Cocaine)/Alcohol Use Disorder, or as Dr. Bard referred to it: "polysubstance abuse" disorder.
A "mental abnormality" is defined in Article 10 of the Mental Hygiene Law as follows:
"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."The Court is aware that the Court of Appeals, in Donald DD., supra, ruled that ASPD alone is not sufficient to support a finding of "mental abnormality". In this case, however, there are other disorders i.e. stimulant (cocaine) and alcohol use disorders which both experts agree William J. suffers from. Nonetheless, MHLS asserts that the Donald DD. Decision infers that [*6]the additional disorder(s) have to be of a sexual nature and that substance use disorder(s) obviously are not. Until definitively ruled upon by a binding higher authority, this Court does not draw such an inference.
In Donald DD., and its companion case Kenneth T., the Court of Appeals discussed the need to consider "a detailed psychological portrait of a sex offender" in order to prove level of control. In this case, the Court finds that William J.'s psychological portrait consists not only of ASPD and polysubstance use disorders, but also sexual preoccupation.[FN2] While sexual preoccupation is not a disorder listed in the DSM-5, in Matter of State of New York v Shannon S., 20 NY3d 99, the Court of Appeals made it clear that a finding of "mental abnormality" may be warranted even where no specific DSM diagnosis is assigned. The Court credits Dr. Tope's testimony to the effect that sexual preoccupation is a recognized condition that can be considered in determining not only one's risk to re-offend, but also "mental abnormality".
In this case the Court finds that the existence of ASPD, substance use disorders and sexual preoccupation do combine to affect William J.'s volitional capacity in a manner that predisposes him to the commission of conduct constituting a sex offense and also results in his having serious difficulty in controlling such conduct. The Court bases this finding, in part, on the testimony of Dr. Tope to the effect that through the use of substances William J. is "so compulsive and out of control" that he cannot control his urges to commit sex offenses. She described how he has a desire to use "crack" cocaine and obtain oral sex from women. Indeed, it bears noting that while out in the community on supervision William J. began utilizing substances almost immediately. Most importantly, William J. has admitted that if he uses substances while in the community he is likely to offend.
However, as to the issue of dangerousness, the Court believes that the conditions of SIST are sufficient for discovering whether William J. uses substances while in the community. This is evident by the fact that, while previously on SIST, he was twice found to be using substances before offending. Moreover, William J.'s ISP of November 19, 2014 evidences that he has made "significant progress" in connection with his substance use disorders. As such, the Court does not find that he is "likely" to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.
MHL §10.09(h) mandates the Court, at the conclusion of an evidentiary hearing in which it finds that one is not currently a dangerous sex offender but finds he suffers from a mental abnormality, to issue an Order providing for his discharge to a regimen of SIST. Before Ordering his discharge to SIST, the Court hereby DIRECTS that the Division of Parole recommend supervision requirements to the Court within forty-five days of receipt of this Decision by the Office of the Attorney General, to be developed with the Commissioner of OMH, all in accordance with MHL §10.11(a)(1). Before issuing its written Order, the Court shall afford the parties an opportunity to be heard, and shall consider any additional submissions from the parties concerning the proposed conditions of SIST. See MHL §10.11(a)(2).
IT IS HEREBY ORDERED, that this Decision and the Court record of this proceeding shall be sealed by the Oneida County Clerk's Office and will only be available to parties to this proceeding or upon further Order of the Court.
Dated: June 30, 2015
ENTER:
_________________________
HON. Louis P. Gigliotti, AJSC Footnotes
Footnote 1:The report is dated October 29, 2014, one day after the Court of Appeals released its decision in Matter of State of New York v Donald DD., 24 NY3d 174.
Footnote 2:The Court does not find legally sufficient evidence of paraphilic interests as asserted by Dr. Tope. Also, the Court notes that although William J. has psychopathic traits, in this case they do not add much to the analysis of whether he suffers from a "mental abnormality" as he does not have enough of such traits to be considered psychopathic.
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