This is an appeal from an order of the Supreme Court, Chautauqua County entered 8 June 2008 in a proceeding pursuant to Mental Hygiene Law article 10. The order denied respondent’s motion to dismiss the criminal petition.
The issue in this appeal is the constitutionality of Mental Hygiene Law article 10 as applied to persons such as respondent who were convicted of certain designated felonies that were sexually motivated and were committed before the effective date of article 10 (§ 10.03 [f], [g] ).
Since sexual motivation was not an element of the underlying designated felony, article 10 requires that the sexual motivation be established at the civil commitment trial, where the standard of proof is clear and convincing evidence.
It is the respondent’s contention that the application of the clear and convincing standard instead of the reasonable doubt standard to the determination of the issue of sexual motivation violates his constitutional rights to due process of law and equal protection of the laws.
The court rejects those contentions and concludes that Supreme Court properly denied his motion to dismiss the article 10 petition.
Pursuant to Mental Hygiene Law § 10.07, a detained sex offender may be civilly committed if it is determined by clear and convincing evidence after a trial that the offender suffers from a mental abnormality, and the court thereafter concludes that the offender is a dangerous sex offender requiring confinement.
A detained sex crimes offender means a person who is in the care, custody, control, or supervision of an agency with jurisdiction, with respect to a sex offense or designated felony, including individuals who have been convicted of a sex offense as defined in section 10.03 (p), and those convicted of a designated felony that was sexually motivated and committed prior to the effective date of article 10 (§ 10.03 [g] , ).
A sex offense as defined in section 10.03 (p) (1) includes an act or acts that constitute any felony defined in article 130 of the Penal Law and a designated felony includes burglary in the second degree.
A dangerous sex offender requiring confinement’ means a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.
At the same time that the Legislature enacted article 10, it created a new crime under article 130 of the Penal Law, entitled sexually motivated felony. That legislation also became effective on 13 April 2007, and subdivision (1) of section 130.91 provides that a person commits a sexually motivated felony when he or she commits any of the designated felonies set forth in section 10.03 (f) for the purpose, in whole or substantial part, of his or her own direct sexual gratification. Those individuals who commit any of the designated felonies after the effective date of article 10 will be included in the scope of article 10 only if they were convicted of the newly enacted sexually motivated felony. For those individuals, the element of sexual motivation, as with any element of a criminal offense, will have to be established beyond a reasonable doubt. With respect to those individuals who committed designated felonies before the effective date of article 10, however, the element of sexual motivation will have to be established at the civil commitment trial, where the applicable standard of proof is the lower clear and convincing standard.
On 20 June 2005, respondent was convicted upon a plea of guilty of two counts of burglary in the second degree under Penal Law § 140.25  and was sentenced to concurrent terms of incarceration. As respondent neared his release date, petitioner filed a sex offender civil management petition contending, inter alia, that the underlying facts of respondent’s crimes revealed a sexual motivation.
On the other hand, the petitioner alleged that respondent had admitted that he burglarized various homes with the intent to molest young children. Although respondent never actually molested the children, he admitted that, on one occasion, he had removed the clothes and diaper from a two-year-old child, but fled the scene when the child began to cry.
The court notes that the respondent has a criminal history replete with evidence of sexually motivated offenses. At age 15, he sexually abused two eight-year-old boys in his neighborhood. At age 19, he was observed masturbating in front of young boys while at a YMCA, and he violated his sentence of probation by refusing sex offender treatment. When respondent was 21, he was arrested for trespassing at a church and daycare facility and was found to be in possession of a photo album containing the pictures of small children who attended the church and daycare. Shortly after that arrest, respondent engaged in the conduct that resulted in the burglary convictions. When arrested for the burglaries, he was located near a school where, over the course of several months, he had been observed watching the children.
It is the petitioner’s allegation that respondent was a detained sexual offender who fell within the ambit of article 10 because he was convicted of a designated felony under Mental Hygiene Law § 10.03 (f) that was sexually motivated and was committed prior to the effective date of article 10.
The respondent moved to dismiss the petition on the ground that his constitutional rights to due process and equal protection were violated since the reasonable doubt standard should be applied to prove the element of sexual motivation, rather than the lower clear and convincing standard. The District Court granted in part and denied in part plaintiffs’ motion for a preliminary injunction. With respect to those individuals convicted of designated felonies before the effective date of article 10, the District Court concluded that, on the record before it, plaintiffs had not demonstrated a likelihood of success on the merits with respect to their contention that the application of the clear and convincing standard to prove the sexual motivation element violated due process. The District Court also concluded that there was a rational basis for the disparate treatment of those individuals convicted before and after the effective date of article 10 and thus rejected plaintiffs’ equal protection argument.
The court concludes that the order in this proceeding should be affirmed.
The Supreme Court has addressed the due process requirements for civil commitment proceedings and finds that it must assess both the extent of the individual’s interest in not being involuntarily confined indefinitely and the state’s interest in committing the emotionally disturbed under a particular standard of proof.
The court has found only one case addressing that specific issue insofar as it deals with article 10. In Mental Hygiene Legal Serv., the court was asked to grant preliminary injunctive relief and a temporary restraining order barring commitment of, inter alia, those individuals convicted of designated felonies that were sexually motivated and were committed before the effective date of article 10 and those individuals who were deemed incompetent to stand trial on the underlying sexual offense charges. The court recognized that for those individuals the proof of some or all of the elements of the underlying criminal offense would have to be established at the civil commitment hearing, where the standard of proof is the lower clear and convincing standard. It was held that due process requires that when an individual is subject to the stigma of being labeled a sexual offender’ and of a finding that he violated a criminal law triggering the possibility of institutional confinement, proof that he or she in fact committed the acts that form the basis for being labeled an offender’ must be made beyond a reasonable doubt. Because those individuals who had been deemed incompetent had not been convicted of the crimes of which they were accused and their ability to assist in the article 10 proceedings was questionable.
Therefore, the court must now address the three factors set forth in Mathews.
The first factor is the private interests affected by the official action. Here, the most significant private interests affected are personal liberty and freedom from confinement. The Addington decision has established that those interests, while fundamental in nature, are subordinate to the interests of protecting society from those who have been deemed mentally ill and dangerous based on clear and convincing evidence. Thus, there is no requirement that a person even commit a criminal offense before being deprived of liberty.
The Supreme Court in Hendricks also permitted the application of a clear and convincing standard insofar as it concerned mental abnormalities or personality disorders not rising to the level of a mental illness. In Hendricks, however, the Kansas statute required that all of the elements of the past sexually violent conduct be established beyond a reasonable doubt, and thus Hendricks does not stand for the proposition that the application of a lower standard of proof for those retrospective factual determinations is proper.
It is the court’s view that it is significant that the Supreme Court in Addington recognized that states could choose to impose a higher standard of proof but that a higher standard was not constitutionally required. The Court recognized that the essence of federalism is that states must be free to develop a variety of solutions to problems and not be forced into a common, uniform mold. While there is a minimum level of protection below which no state can go, the fact that some states provide greater protections does not require New York to do the same.
Because the Supreme Court has upheld the application of the clear and convincing standard as a basis for the civil commitment of individuals and the deprivation of their personal liberty, the court concludes that the first Mathews factor, the significance of the personal interests affected, does not mandate application of the reasonable doubt standard. Domestic violence is often involved.
With respect to the second Mathews factor, the risk of an erroneous deprivation of the individual’s private interests and the value of additional safeguards, we recognize that the determination of sexual motivation is fact-based and, unlike issues of mental illness and future dangerousness, it is a determination capable of being proven beyond a reasonable doubt as in Mental Hygiene Legal Serv.
The court notes that those convicted of designated felonies before the effective date of article 10 have already been found guilty of a serious felony beyond a reasonable doubt. Thus, the risk of an erroneous deprivation of liberty is significantly lower with respect to those individuals. The only factual issue remaining is whether the prior felony was committed with a sexual motivation. Recognizing that the standard of proof serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision, the court concludes that the application of the clear and convincing standard does not create an unacceptable risk of an erroneous deprivation of liberty.
Although the application of the higher standard of proof may serve as an additional safeguard, the court concludes that its application would not add appreciably to the effectiveness of Mental Hygiene Law article 10 as a whole. It concludes that respect is intertwined with the analysis of the third factor in Mathews.
With respect to that third factor, the court concludes that the application of the higher standard would not seriously impede the State’s goal of committing sex offenders who pose a threat to society because of their inability to control their behavior. The higher standard is applied almost exclusively to the other individuals who fall within the ambit of article 10 and, contrary to petitioner’s contention, the application of the two different standards would not confuse a jury.
The court notes that numerous states specifically require that a judge or jury first determine the sexual motivation element beyond a reasonable doubt before proceeding to determine the overall need for civil commitment. Thus, the court recognizes that New York could have provided for the higher standard without any major fiscal or administrative burdens.
The issue the court is now facing is whether New York’s failure to do so violates an individual’s due process rights. It concludes that it does not.
The application of the lower standard of proof for the one element of sexual motivation does not increase or decrease the scope of Mental Hygiene Law article 10 in any substantial way, nor does it improperly allocate the risk of error between New York State and a respondent. The evidence of sexual motivation likely will be established through the trial transcript, the plea proceeding transcript or, as in this case, by a confession signed and sworn to by the respondent, a former criminal defendant. If the record contains such evidence, then the court envisions that there will be a finding, under either standard, of sexual motivation. If the record lacks such evidence, then there will be a finding, under either standard, that sexual motivation was absent.
While it may have been preferable for the Legislature to have imposed the higher reasonable doubt standard for all “backward-looking factual finding as in Shields, due process does not require the application of that standard.
The court likewise concludes that the statute does not violate respondent’s constitutional right to equal protection. A person raising an equal protection challenge must first establish the applicable level of scrutiny, which is determined by whether the criminal statute involves a suspect class or interferes with the exercise of a fundamental right as held in Affronti v Crosson.
Based on the foregoing, the court concludes that respondent has failed to meet his initial burden of demonstrating the statute’s invalidity beyond a reasonable doubt.
Accordingly, the court concludes that the order denying respondent’s motion to dismiss the petition should be affirmed.
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