State v. Justin R.

187 A.D.3d 1464

131 N.Y.S.3d 747

In the Matter of STATE of New York, Respondent,

v.JUSTIN R., Appellant.

529655

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 16, 2020

Decided and Entered: October 29, 2020

Sheila E. Shea, Mental Hygiene Legal Service, Albany (Brent R. Stack of counsel), for appellant.

Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Mulvey and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from an order of the Supreme Court (Farley, J.), entered June 6, 2019 in St. Lawrence County, which granted petitioner's application, in a proceeding pursuant to Mental Hygiene Law article 10, to revoke respondent's regimen of strict and intensive supervision, found respondent to be a dangerous sex offender and confined him to a secure treatment facility.

In 2001, respondent was convicted of attempted sodomy in the first degree and sexual abuse of three toddlers and sentenced to a prison term of 3½ years followed by five years of postrelease supervision. Respondent's parole was revoked twice. In 2009, as respondent was nearing his maximum expiration date, petitioner sought an order authorizing civil management of respondent pursuant to Mental Hygiene Law article 10. In 2012, Supreme Court (Demarest, J.) determined that respondent was a dangerous sex offender requiring confinement in a secure treatment facility. In 2017, following an annual review hearing, Supreme Court (Gigliotti, J.) determined that respondent was no longer a dangerous sex offender requiring confinement, and released him subject to a regimen of strict and intensive supervision and treatment (hereinafter SIST).

In 2019, claiming that respondent had violated his SIST conditions in several respects, petitioner commenced this SIST revocation proceeding pursuant to Mental Hygiene Law § 10.11(d), seeking an order deeming respondent a dangerous sex offender and placing him back into confinement. Following a revocation hearing, Supreme Court (Farley, J.) found, by clear and convincing evidence, that respondent is a dangerous sex offender requiring confinement, revoked respondent's regimen of SIST, and directed that he be committed to a secure treatment facility. Respondent appeals.

Respondent contends that Supreme Court erred in finding that petitioner proved by clear and convincing evidence that he is a dangerous sex offender requiring confinement. Specifically, respondent argues that the SIST violations were merely status offenses and that petitioner failed to prove that he lacks the ability to control any illegal sexual conduct. As such, he argues, he is not likely to be a danger to others and to commit sex offenses if he remains in the community subject to SIST. We disagree.

A dangerous sex offender requiring confinement is defined as "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" ( Mental Hygiene Law § 10.03[e] ). In contrast, a sex offender requiring strict and intensive supervision is "a detained sex offender who suffers from a mental abnormality but is not a dangerous sex offender requiring confinement" ( Mental Hygiene Law § 10.03[r] ). Petitioner must prove, by clear and convincing evidence, that respondent is a dangerous sex offender requiring confinement (see Matter of State of New York v. James K., 135 A.D.3d 35, 40, 19 N.Y.S.3d 124 [2015] ; Matter of State of New York v. Barry W., 114 A.D.3d 1093, 1094, 981 N.Y.S.2d 209 [2014]. "Where conflicting expert testimony and other credibility issues are presented ..., we accord deference to the trial court's assessment of credibility [as] it is best positioned to make those determinations" ( Matter of State of New York v. Andrew D., 114 A.D.3d 1043, 1043, 980 N.Y.S.2d 617 [2014] [citations omitted]; see Matter of Craig W. v. State of New York, 151 A.D.3d 1135, 1137, 56 N.Y.S.3d 365 [2017] ).

At the SIST revocation hearing, petitioner offered the testimony of respondent's parole officer, Matthew Mullin, and the psychiatric report and testimony of Abby Oberriter, a psychologist with the Office of Mental Health. Mullin's uncontroverted testimony was that, in May 2017, respondent had a relationship with an individual undisclosed to him. In May 2018, respondent used his cell phone to access sexually explicit websites and had a relationship with a person undisclosed to him. In February 2019, respondent accessed sexually explicit websites, watched pornography, had a knife next to his bed, had sexual relationships with several undisclosed individuals, had contact with a person having a criminal record, failed to participate in treatment and failed four polygraph examinations.

Oberriter testified that respondent reported accessing "incest-related" pornography daily and masturbating up to 13 times per day, which he uses as "a means of coping with emotional stress." Oberriter opined that respondent's preference for incest-related pornography is particularly disconcerting as it is somewhat consistent with the conduct underlying respondent's attempted sodomy conviction. She determined that respondent's pornography use and masturbation are consistent with sexual preoccupation, which correlates highly with rates of sexual recidivism. Oberriter relayed concerns that respondent was engaging in relationships with multiple women because "he was not...