This is a proceeding wherein the State of New York moves to establish probable cause to believe that O.V. is a “sex offender requiring civil management” pursuant to Mental Hygiene Law article 10, § 10.06 (k).
O.V. opposes the motion.
On 12 December 2007, the court held a hearing to ascertain whether there is probable cause to believe that O.V. is a sex crimes offender requiring civil management.
At the outset, the State established that, on 18 May 1979, O.V. was convicted of two counts of rape in the first degree and two counts of criminal possession of a weapon, a knife, in the fourth degree. He was sentenced to 10 to 25 years imprisonment. In November 1999, in preparation for parole release, O.V. signed a sex offender registration form, in which he agreed, among other conditions, to attend a sex offender treatment program.
O.V.’s parole was revoked five months after his release based on his failure to participate in the Metropolitan Health Center Sex Offender program. O.V.’s excuse was it was just impossible for him to attend because he just didn’t have time.
O.V. was evaluated by two psychiatrists and found to be dangerous due to his antisocial personality disorder, polysubstance dependence and his predisposition to commit sex crimes before he was to be paroled a second time.
The State called Dr. J, its only witness, a forensic psychiatrist, board certified in both psychiatry and in forensic psychiatry, who is employed at Kirby Forensic Psychiatric Center and evaluated respondent O.V. in accordance with Mental Hygiene Law article 10.
Dr. J explained that before meeting with O.V., he reviewed all documents relating to the case, and that after the interview, he prepared a report, which he referred to during the course of his testimony. He said that they spoke about the instant offenses which involved two rapes, his involvement with drug and substance abuse treatment prior to his incarceration, the events during incarceration including disciplinary incidents, his release on parole and subsequent violation of parole five months later for failing to attend the sex offender treatment as mandated, what he considered might have motivated him to commit his sex offenses, his history of suicide gestures and whether he was really suicidal at the time and his involvement in treatment at Kirby Forensic Psychiatric Center.
Dr. J set forth that O.V. informed him that he raped two women because they reminded him of his mother. He also said regarding the instant offenses that they were done out of anger. He said that he was on his way to the methadone clinic to get his methadone when he committed the offenses. With respect to O.V.’s drug history, Dr. J testified that O.V. told him that he had been on methadone and was attending a methadone clinic but that he does not believe that he needs ongoing substance treatment or that he is at risk to use drugs in the future. O.V. informed Dr. J that even though he had used drugs in prison, he didn’t consider himself to be at risk now, and that if released, he would be able to prove that.
While in prison, O.V. was accused of sexual assault of a nurse. Dr. J concluded that pursuant to the Diagnostic and Statistical Manual, Fourth Revision (DSM-IV) of the American Psychiatric Association, O.V. suffers from three separate disorders: polysubstance dependence, antisocial personality disorder and paraphilia.
Dr. J opined that O.V. suffers from polysubstance dependence, a severe form of being addicted to multiple substances at the same time while meeting other specific criteria for the disease. Dr. J stated that O.V. is unable to control his urges to use drugs, which includes use of opiates. He set forth that O.V. is predisposed to commit all sorts of crimes and he is specifically at risk to commit further sex crimesusing cocaine offenses and he does pose a danger to the community.
Dr. J further testified that in order to be diagnosed with Axis II disorder of “Antisocial Personality Disorder,” a person must be an adult and meet at least three out of seven different symptomatic and behavioral criteria. He concluded that O.V. meets seven out of seven criteria for that disorder, which are: lack of respect for societal norms; pattern of reckless disregard for the safety of others; deceitfulness; lack of remorse and blaming others for one’s problems; irritability and impulsiveness and inability to maintain consistent employment.
Dr. J also explained that paraphilias are disorders characterized by persistent and upsetting or difficult to control urges, related to certain sexual preoccupations.
“In this case, the condition that I am concerned the respondent has, involves a sexual preoccupation and urges related to the coercive sexual acts with nonconsenting others. Not everyone who engages in rape has a paraphilia certainly, but this respondent has some features that suggest he would meet criteria for a paraphilia, in the sense that he, himself said during, at the time of the instant offenses that he felt compelled to do what he was doing. He said that the rapes have something to do with his feelings for his mother. Most paraphilias are long-standing, chronic conditions that don’t change a whole lot throughout the life time.”
Dr. J relayed that the Static 99 is an actuarial instrument to help assess the risk of recidivism of sex offenders over a five-year period. Dr. J concluded that more than one-third of sex offenders with scores that fell within the high risk advantage recidivate within five years. He stated:
“The concern I would have is that even in a secure setting, such as prison and Kirby Psychiatric Center, the respondent continued to make threats and be involved in dangerous incidents. So I believe that he does need a secure setting to limit the risk that he might harm others.”
On cross-examination, Dr. Hicks acknowledged that O.V. is 54 years old and that the DSM-IV provides that the symptoms of antisocial personality disorder wane after a person reaches 40. He also stated that O.V. has not been on psychotropic medications and that he is not delusional. With respect to the Static 99, Dr. Hicks commented that most recommend that the actuarial instrument be used in combination with clinical assessments by skilled clinicians who are aware of forensic principles when doing risk assessment. Finally, Dr. J agreed that O.V. has his mother, who visited him in the hospital on a regular basis, and a brother as part of his support group.
To Br Cont…
On redirect, Dr. J reiterated that he did not believe that parole supervision of O.V. would be sufficient as a protection to the community. Dr. J concluded with a reasonable degree of psychiatric certainty that O.V. does pose a danger to society.
Mental Hygiene Law article 10 provides that after a case review team, consisting of at least two mental health professionals under Mental Hygiene Law § 10.05 [a], finds that an individual is “a sex offender requiring civil management,” the Attorney General may file a sex offender civil management petition in Supreme Court. The petition must contain a statement or statements alleging facts of an evidentiary character tending to support the allegation that the respondent is a sex crimes offender requiring civil management.
After a petition is filed, the act directs that Supreme Court shall conduct a hearing without a jury to determine whether there is probable cause to believe that the respondent is a sex offender requiring civil management.
At the conclusion of the criminal hearing, if the court determines that probable cause has not been demonstrated, it must dismiss the petition and the respondent will be released. If, however, probable cause has been established: “(i) the court shall order that the respondent be committed to a secure treatment facility; (ii) the court shall set a date for trial; and, (iii) the respondent shall not be released pending the completion of such trial.
The jury, or the court if a jury trial is waived, shall determine by clear and convincing evidence whether the respondent is a detained sex offender who suffers from a mental abnormality. The burden of proof shall be on the attorney general. A determination, if made by the jury, must be by unanimous verdict. If the jury, or the court if a jury trial is waived, determines that the respondent is a detained sex offender who suffers from a mental abnormality, then the court shall consider whether the respondent is a dangerous sex offender requiring confinement or a sex offender requiring strict and intensive supervision. If the court finds by clear and convincing evidence that the respondent has a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility, then the court shall find the respondent to be a dangerous sex offender with drug possession requiring confinement.
Pursuant to Mental Hygiene Law § 10.06 (k), the court must now assess whether there is probable cause to believe that O.V. is a sex offender requiring civil management and whether he should be held for trial. The court must analyze whether the State has sufficiently demonstrated that O.V. suffers from a mental abnormality and must further make findings with respect to whether O.V. “is sufficiently dangerous to require confinement and whether lesser conditions of supervision will not suffice to protect the public during the pendency of the proceedings.
The court notes that the Mental Hygiene Legal Service urges adoption of a high standard of proof. In the context of article 10 of the Mental Hygiene Law, a showing of “probable cause” should require establishing that it is “more likely than not” that an offender requires civil management.
MHLS rejects the definition of “probable cause” that has been equated with “reasonable cause.” Where, as here, there is significant information and data for the court to consider, including the testimony of mental health professionals based on observation and test results. MHLS asserts that a “more probable than not” standard should apply.
In contrast, the State urges use of less stringency, relying on State of New York v Pedraza wherein in the context of a Mental Hygiene Law article 10 probable cause proceeding, the court adopted the standard applicable at a preliminary hearing, namely, whether there exists reasonable cause to believe explaining that all the court is inquiring into at this early stage is whether there exists sufficient evidence to proceed to trial.
The “reasonable cause” standard must be applied in assessing probable cause here. It is clear from the statutory scheme that when the legislature intended for a heightened standard of proof, it explicitly prescribed its applicability. The purpose of an article 10 probable cause hearing, moreover, is simply to ensure that there is a basis for holding the respondent for trial, at which time a heightened standard of inquiry will apply. It would not make sense at this preliminary stage to impose a high standard of proof similar to the one that will ultimately be used by the finder of fact after presentation of all of the criminal evidence.
Because the State has established that there is reasonable cause to believe (1) that O.V. suffers from a mental abnormality, and (2) that he is sufficiently dangerous to require confinement and lesser conditions of supervision will not suffice to protect the public during the pendency of the proceedings, probable cause has been established and O.V. will be held for trial.
The court finds that the State presented substantially unrefuted evidence-Dr. J’s testimony-that O.V., a sex offender, suffers from paraphilia. Dr. J further concluded that O.V. manifests polysubstance dependence and antisocial personality traits, possessing seven of the seven criteria for antisocial personality disorder. Based on the evidence, there is reasonable cause to believe that O.V. suffers from a congenital or acquired disorder that affects his emotional, cognitive or volitional capacity. No gun crime was charged.
Additionally, the State has established that there is reasonable cause to believe that O.V. is sufficiently dangerous to require confinement and that lesser conditions of supervision will not suffice to protect the public during the pendency of the proceedings. Based on either his score of seven or his score of nine on the Static 99, Dr. J opined that O.V. clearly falls into the category of “high risk” and “does pose a danger to society.” Dr. J testified that O.V. poses a risk of repeating the dangerous actions of his past.
Based on this evidence, in the interests of protection of the public, O.V. must be confined pending a trial. The court observes that releasing O.V. now would undermine the whole purpose underlying Mental Hygiene Law article 10.
Accordingly, the court orders that there is probable cause to believe that O.V. is a sex offender requiring civil management and that he shall not be released pending his trial.
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