Matter of State of New York v Benjamin M.
Annotate this CaseDecided on October 26, 2018
Supreme Court, Orange County
In the Matter of the Application of the State of New York, Petitioner,
against
Benjamin M., Respondent. For Civil Management pursuant to Article 10 of the Mental Hygiene Law.
4931/2015
OFFICE OF THE ATTORNEY GENERAL
Breda Huvane, Esq.
Assistant Attorney General
Attorneys for Petitioner
One Civic Center Plaza, Fourth Floor
Poughkeepsie, NY 12601
MENTAL HYGIENE LEGAL SERVICE
Eugene Brennan Heslin, Esq.
Attorneys for Respondent
One Civic Center Plaza, Suite 304
Poughkeepsie, NY 12601
Craig Stephen Brown, J.
A petition was filed by the State of New York seeking an order authorizing civil management of respondent Benjamin M. pursuant to Mental Hygiene Law Article 10.
On October 18, 19, 20, 23, and 24, 2017 a non-jury trial was held. By Decision and Order dated December 14, 2017, this Court (DeRosa, J.) found that respondent is a detained sex offender pursuant to Mental Hygiene Law §10.03(g) who suffers from a mental abnormality in [*2]that he has a congenital or acquired condition that predisposes him to commit sex offenses. As a result, respondent was found to be a sex offender requiring civil management.
On May 4 and May 7, 2018, a dispositional hearing was held to determine whether respondent is a dangerous sex offender requiring confinement or whether respondent is a sex offender requiring strict and intensive supervision and treatment. The State of New York was represented by Breda Huvane, Esq., Assistant Attorney General, New York State Attorney General's Office. Respondent was represented by Eugenia Brennan Heslin, Esq., Mental Hygiene Legal Service. The State called one witness: Stuart M. Kirschner, Ph.D. The respondent called one witness: Leonard A. Bard, Ph.D.
Respondent's counsel Eugenia Brennan Heslin, Esq. submitted a Memorandum of Law dated June 29, 2018 and a Reply Memorandum dated July 12, 2018. Assistant Attorney General Breda Huvane, Esq. submitted a Memorandum of Law dated June 29, 2018. On July 20, 2018, this Court received a letter, dated July 16, 2018, which purportedly was from respondent, Benjamin M. On September 14, 2018, this Court received correspondence from Ms. Huvane, which included a letter from respondent's ex-wife detailing a package and letter she received from respondent on July 28, 2018. The Court heard oral arguments with respect to the admissibility of respondent's letter, dated July 16, 2018, as well as the submission by respondent's ex-wife.
The letter received by the Court from respondent includes a recitation of "facts" the respondent asks this Court to consider, as well as legal arguments related thereto. Respondent's submission is not in legally admissible form and appears to be an attempt to have the Court consider "facts" which were not evidence elicited during the hearing. The dispositional hearing was closed prior to receipt of respondent's letter, and respondent was not granted leave to re-open the hearing and submit additional evidence. Respondent is represented by counsel. As such, the "facts" and legal arguments submitted by respondent himself in his letter to the Court were not considered by this Court.
The submission by respondent's ex-wife contained a handwritten note, purportedly from respondent, which contained some disturbing language, including "first be prepared to die And renounce the desire to live." While the submission might otherwise be relevant to this Court's determination, it was not in legally admissible form, and it was received after the close of the evidence. Petitioner was not granted leave to re-open the hearing and submit additional evidence. As such, it cannot, and was not, considered by this Court. The other submissions and oral arguments by counsel were considered by this Court.
Given that there already has been a determination that respondent does suffer from a mental abnormality, this Court only must determine in this dispositional hearing whether respondent is a dangerous sex offender requiring confinement or whether respondent can safely be released into the community on Strict and Intensive Supervision and Treatment ("SIST"). Mental Hygiene Law §10.07(f). This Court is cognizant that civil confinement cannot be utilized as punishment or deterrence, but, rather, must serve the objectives of providing the necessary treatment to sex offenders while also protecting the public against potential sex crimes. Mental Hygiene Law §10.01(a).
To support confinement, this Court must find, upon clear and convincing evidence, that respondent suffers from a mental abnormality involving such a strong predisposition to commit [*3]sex offenses, and such an inability to control behavior, that respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility. Mental Hygiene Law §10.03(e).
Respondent is diagnosed with Antisocial Personality Disorder and Borderline Personality Disorder. Respondent also has a provisional diagnosis of Pedophilic Disorder. Petitioner's expert, Dr. Kirschner, testified that respondent is strongly predisposed to commit sex offenses and has an inability to control his impulses. According to Dr. Kirschner, respondent is unable to exercise appropriate braking to prevent his actions. Further, respondent has not successfully completed sex offender treatment and does not view himself as a sex offender. In the opinion of Dr. Kirschner, respondent is a dangerous sex offender requiring confinement.
Dr. Kirschner testified at the dispositional hearing that respondent never completed sex offender treatment, has no relapse prevention plan, and does not even acknowledge his abuse of one of his victims. He likens his sex abuse and rape of a 14-year-old girl to that of a young Mary and older Joseph in the Bible. Benjamin M.'s former probation officer testified that he made sexually violent threats to her while he was under her supervision, and there was testimony that he did the same to a social worker who previously was working to re-unite him with his family. Respondent also attempted to intimidate said social worker by threatening to use "his connections."Benjamin M. left similar "threatening" voice mail messages to an Assistant Attorney General previously handling his case, as well as Dr. Tope, who was overseeing his treatment.[FN1] Respondent also sent lengthy letters to his daughter while he was confined, which were in violation of an order of protection. Dr. Kirschner testified about how these facts, along with other incidents, clearly demonstrate that Benjamin M.'s cognitive distortions and narcissistic and borderline personality disorders demonstrate that Benjamin M. is a dangerous sex offender who absolutely is not an appropriate candidate for SIST . . . respondent is a dangerous sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses and such an inability to control behavior, that he is likely to be a danger to others and is likely to commit sex offenses if he is not confined to a secure treatment facility.
Respondent's expert, Dr. Bard, met with the respondent for 90 minutes on November 9, 2015. Dr. Bard has not interviewed the respondent since that date in 2015. His failure to interview Benjamin M. post-trial/pre-dispositional phase is a factor in evaluating his credibility regarding the mental abnormality component at this dispositional phase related to whether there currently is a strong predisposition to commit sex offenses and a current inability to control behavior.[FN2] Dr. Bard opined that the behaviors identified throughout petitioner's case do not sufficiently demonstrate that respondent has an "inability" to control his behavior and accordingly believes that respondent can safely be managed on SIST. While Dr. Bard [*4]acknowledged that respondent's behaviors may constitute a personality disorder, there is no evidence that links those behaviors to a "serious difficulty in controlling behavior" making it likely that Benjamin M. is a danger to others and is likely to commit sex offenses if not confined to a secure treatment facility. Dr. Bard contends that the behaviors enumerated in petitioner's case do not demonstrate sufficient evidence of a "strong predisposition" to specifically commit sex offenses. Therefore, Dr. Bard believes that petitioner has failed to meet its burden of proof and respondent should not be civilly confined.
After consideration of the foregoing, as well as oral arguments of the parties, the Court credits the opinion of Dr. Kirschner and finds, upon clear and convincing evidence, that respondent is a dangerous sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses and such an inability to control behavior, that he is likely to be a danger to others and is likely to commit sex offenses, if not confined to a secure treatment facility.
Based upon the foregoing, it is hereby
ORDERED, that respondent, in accordance with Mental Hygiene Law §10.07 and §10.10, be committed to a secure treatment facility for care, treatment and control until such time as he no longer requires confinement.
The above constitutes the Decision and Order of this Court.
Dated: October 26, 2018
Goshen, New York
E N T E R:
________________________________
HON. CRAIG STEPHEN BROWN
Acting Supreme Court Justice Footnotes
Footnote 1:Respondent's blatant disregard of authority undermines his contention that his mental abnormality can be adequately managed on SIST.
Footnote 2:While Dr. Bard never attempted to interview respondent, Benjamin M. refused to be interviewed by Dr. Kirschner post-trial/pre-dispositional phase when Dr. Kirschner attempted to do so. By virtue of that refusal, Benjamin M. cannot now rely on the absence of a more current psychiatric evaluation regarding Dr. Kirschner's determination.
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