State v. Tony A.

212 A.D.3d 1056

182 N.Y.S.3d 358

In the Matter of STATE of New York, Respondent,

v.TONY A., Appellant.

533968

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

Calendar Date: December 14, 2022

Decided and Entered: January 26, 2023

Sheila E. Shea, Mental Hygiene Legal Service, Albany (Shannon Stockwell of counsel), for appellant.

Letitia James, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Pritzker, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J. Appeal from an order of the Supreme Court (John T. Ellis, J.), entered August 11, 2021 in Franklin County, which granted petitioner's application, in a proceeding pursuant to Mental Hygiene Law article 10, to find respondent to be a dangerous sex offender and confined him to a secure treatment facility.

Respondent has a lengthy history of sex offense convictions beginning in 1986, when respondent pleaded guilty to robbery in the first degree, attempted rape in the first degree, burglary in the second degree and grand larceny in the third degree, stemming from two separate incidents that occurred within five days of each other. As to the first incident, respondent followed the victim to her home, where he deceived her into believing that he was inquiring about a vehicle for sale in her driveway, before he forced his way into her residence and proceeded to physically assault and rape her. Days later, respondent forced his way through the window of another victim's house, threw the victim on a bed and began to choke her before eventually attempting to rape her. Respondent was ultimately sentenced to an aggregate term of 6 to 18 years of incarceration for those offenses and other unrelated crimes. In 2007, respondent was arrested and charged with rape in the third degree, criminal sexual act in the third degree and stalking in the third degree, stemming from an incident in which he was accused of sexually assaulting a former paramour who suffered from disabilities stemming from a stroke. Respondent pleaded guilty to harassment in the first degree and assault in the third degree and was sentenced to a six-month period of incarceration. Finally, as to his qualifying offense, respondent was convicted of sexual abuse in the first degree in May 2013, stemming from an incident in which he had climbed through a window while the victim was sleeping and forcefully penetrated the victim's vagina and anus with his fingers and forced her mouth onto his penis. He was eventually sentenced to seven years in prison and 15 years of postrelease supervision.

As respondent's anticipated release to the community neared, his matter was referred to a case review team from the Office of Mental Health to be evaluated and determine whether he was a sex offender requiring civil management (see Mental Hygiene Law § 10.03[q] ). Nancy Ives, a licensed psychologist with the Office of Mental Health, evaluated respondent and issued her report in July 2019, concluding that respondent was a detained sex offender suffering from a mental abnormality (see Mental Hygiene Law § 10.03[g], [i] ). Accordingly, in August 2019, petitioner commenced this proceeding seeking an order finding that respondent was a detained sex offender requiring civil management under Mental Hygiene Law article 10.

Supreme Court thereafter held a probable cause hearing and, after receiving testimony from petitioner's expert witness who stated that in her professional opinion respondent exhibited characteristics that would support the finding of him being a dangerous sex offender requiring civil management, the court issued an order for probable cause. In August 2020, following a trial at which expert witnesses for petitioner and respondent testified, the court issued a decision finding that respondent possessed a mental abnormality within the definition of Mental Hygiene Law article 10. After trial and prior to a scheduled dispositional hearing, respondent suffered a stroke in November 2020 that paralyzed and significantly weakened the right side of his body, including his extremities. Following a dispositional hearing, the court nevertheless found defendant to be a dangerous sex offender requiring confinement and directed that he be committed to a secure treatment facility. This appeal by respondent ensued.

On appeal, respondent does not dispute that he suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i) and limits his challenge to Supreme Court's subsequent determination that he is a dangerous sex offender requiring confinement (see Mental Hygiene Law §§ 10.03[e] ; 10.07[f]). In this respect, respondent contends, in sum and substance, that his stroke renders him physically incapable of engaging in sex offending behavior similar to the behavior underlying his various sexual offenses, and that he should instead be released to strict and intensive supervision and treatment (see Mental Hygiene Law § 10.03[r] ).

We disagree. Following a determination that a respondent is a detained sex offender who suffers from a mental abnormality, the court must then "consider whether the respondent is a dangerous sex offender requiring confinement or a sex offender requiring strict and intensive supervision" ( Mental Hygiene Law § 10.07[f] ). Pursuant to Mental Hygiene Law § 10.03(e), a dangerous sex offender requiring confinement is defined as "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." "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’ " ( Matter of State of New York v. Justin R., 187 A.D.3d 1464, 1465, 131 N.Y.S.3d 747 [3d Dept. 2020], quoting Mental Hygiene Law § 10.03[r] ). The burden lies with petitioner to prove, "by clear and convincing evidence, that respondent is a dangerous sex offender requiring confinement" ( id. at 1465–1466, 131 N.Y.S.3d 747 ; see Mental Hygiene Law § 10.07[f] ; Matter of State of New York v. Barry W., 114 A.D.3d 1093, 1094, 981 N.Y.S.2d 209 [3d Dept. 2014] ). Supreme Court, as the trier of fact, is in the best position to evaluate the weight and credibility of any conflicting expert testimony presented, and its determinations are accorded deference upon our review (see Matter of State of New York v. Justin R., 187 A.D.3d at 1466, 131 N.Y.S.3d 747 ; Matter of State of New York v. James K., 135 A.D.3d 35, 39, 19 N.Y.S.3d 124 [3d Dept. 2015] ; Matter of State of New York v. Walter W., 94 A.D.3d 1177, 1180, 942 N.Y.S.2d 243 [3d Dept. 2012], lv denied 19 N.Y.3d 810, 2012 WL 3743971 [2012] ).

At the dispositional hearing, petitioner offered, among other things, the expert testimony and report of Stuart Kirschner, a psychologist, alongside the report and testimony of Ives, who both diagnosed respondent with antisocial personality disorder (hereinafter ASPD) and psychopathy.¹ Both Ives and Kirschner concluded that respondent was a dangerous sex offender requiring confinement based upon, among other things, the actuarial risk factors that suggested a high risk for reoffending. In this respect, both Ives and Kirschner opined that respondent's score on the STATIC–99R risk assessment suggested that his risk for reoffending was "well above average." In further support of her conclusion, Ives pointed to the various traits that lent to respondent's diagnosis of ASPD, such as his "callousness[ and] lack of affect," and that he "had a high level of ... psychopathy ... includ[ing] ......