State v. Robert A.

187 A.D.3d 1326

133 N.Y.S.3d 103

In the Matter of STATE of New York, Respondent,

v.ROBERT A., Appellant.

527232

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

Calendar Date: September 11, 2020

Decided and Entered: October 22, 2020

Danielle Neroni Reilly, Albany, for appellant.

Letitia James, Attorney General, Albany (Frederick A. Brodie of counsel), for respondent.

Before: Lynch, J.P., Clark, Devine, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from an order of the Supreme Court (Hartman, J.), entered May 16, 2018 in Albany 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.

The relevant facts are more fully set forth in this Court's prior decision in this matter ( Matter of State of New York v. Robert C., 113 A.D.3d 937, 979 N.Y.S.2d 173 [2014] ). Briefly, respondent has a history of committing sex offenses. In 2012, respondent was found to be a dangerous sex offender and was confined to a secure treatment facility.¹ Thereafter, and in conjunction with an annual review process, Supreme Court (Gigliotti, J.) concluded that, although respondent still suffered from a mental abnormality, he no longer required civil confinement. As a result, respondent was released to a regimen of strict and intensive supervision and treatment (hereinafter SIST) subject to various terms and conditions.

While released on SIST, respondent obtained employment as a dishwasher at a restaurant and also performed odd jobs for a construction contractor. Respondent subsequently advised his parole officer that he had been suspended from the restaurant – purportedly because his fellow employees learned that he was a sex offender and were afraid of him. However, further investigation by the parole officer revealed that respondent was fired from his position – due in part to inappropriate comments that he made toward and regarding female employees. Additionally, the contractor reported that respondent was harassing him, had made inappropriate inquiries regarding the contractor's sexual relationship with his wife and had told the contractor that respondent could get violent. As a result, the parole officer established "exclusion zones" around the restaurant and the contractor's residence, and respondent was prohibited from having any contact with the contractor, his wife and/or any of the restaurant's employees.

Based upon an alleged violation of one of his SIST conditions, respondent was arrested and remanded to the local jail. Petitioner thereafter commenced this proceeding pursuant to Mental Hygiene Law article 10 seeking to revoke respondent's release to SIST and confine him to a secure treatment facility. Following four days of hearings, Supreme Court (Hartman, J.) rendered a detailed decision finding, among other things, that petitioner had established – by clear and convincing evidence – that respondent was a dangerous sex offender requiring confinement and ordered that he be remanded to a secure treatment facility. Respondent appeals.

Respondent contends that petitioner failed to establish that he was a dangerous sex offender in need of confinement, arguing that his confinement to a secure treatment facility is unwarranted and that he should be restored to SIST. Pursuant to Mental Hygiene Law § 10.03(e), a dangerous sex offender requiring confinement is "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" (see Matter of State of New York v. David HH., 147 A.D.3d 1230, 1233–1234, 48 N.Y.S.3d 791 [2017], lv denied 29 N.Y.3d 913, 63 N.Y.S.3d 3, 85 N.E.3d 98 [2017] ). Conversely, a sex offender requiring SIST "is an individual who is a detained sex offender and suffers from a mental abnormality ... but who does not meet the definition of a dangerous sex offender requiring confinement" ( id. at 1234, 48 N.Y.S.3d 791 ; see Matter of State of New York v. Michael M., 24 N.Y.3d 649, 659, 2 N.Y.S.3d 830, 26 N.E.3d 769 [2014] ). Thus, Mental Hygiene Law § 10.03 draws "a distinction between sex offenders who have difficulty controlling their sexual conduct and those who are unable to control it. The former are to be supervised and treated as outpatients and only the latter may be confined" ( Matter of State of New York v. Michael M., 24 N.Y.3d at 659, 2 N.Y.S.3d 830, 26 N.E.3d 769 [internal quotation marks omitted]; accord Matter of State of New York v. Ted B., 174 A.D.3d 630, 632, 103 N.Y.S.3d 141 [2019] ). As such, in the context of this revocation proceeding, Supreme Court had two dispositional alternatives: civilly confine respondent or return him to the community under SIST (see Matter of State of New York v. Jamaal A., 167 A.D.3d 1526, 1526, 90 N.Y.S.3d 772 [2018], lv denied 33 N.Y.3d 902, 2019 WL 1941485 [2019] ; Matter of State of New York v. David HH., 147 A.D.3d at 1233, 48 N.Y.S.3d 791 ).

Initially, there is no serious dispute that respondent violated the conditions of his release to SIST by engaging in behavior that threatened the safety or well-being of others. Although respondent's coworkers at the restaurant initially believed that respondent was just trying to be friendly, his demeanor and conduct in following the female servers around the restaurant began to make his coworkers uncomfortable. One of the servers testified that, when she politely declined respondent's offer of a cupcake, respondent threatened to strangle her with her headband and cut off her circulation until her brain fell out. Although respondent's fellow dishwasher interpreted this comment as a joke, he confirmed that respondent did make a comment about wanting to strangle the server while engaging in sexual intercourse with her. Respondent's parole officer found this incident to be particularly troubling, as it "was incredibly similar" to respondent's past history and conduct in offending.² The fellow dishwasher also testified that respondent repeatedly would comment on the physical appearance of all of the female servers in the restaurant and made a number of sexually-related comments.

As to respondent's inability to control his behavior, Susan Cox, the psychologist who examined respondent on behalf of the Office of Mental Health, diagnosed respondent as suffering from, among other things, a delusional disorder with grandiose and persecutory features and other specified personality disorder with borderline and antisocial traits.³ According to Cox, respondent's flawed perception of his relationships with others – particularly women – precluded respondent from understanding when and how he was breaking the rules that had been put in place to govern his conduct. In addition, although respondent and his expert witness, psychologist Leonard Bard, attributed respondent's "locker room" banter with his fellow dishwasher to social awkwardness occasioned by his many years of incarceration, Cox regarded respondent's comments and behaviors as evidence that he "remains sexually preoccupied." This sexual preoccupation, Cox opined, was ...