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INSUFFICIENT SHOWING THAT SEX OFFENDER’S VIOLATION OF NON-SEXUAL TERMS OF HIS STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) JUSTIFIED A FINDING HE IS UNABLE TO CONTROL SEXUAL MISCONDUCT, COMMITMENT TO LOCKED FACILITY REVERSED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeMoyer, reversing County Court, determined that there was an insufficient showing that respondent sex offender’s non-sexual violations of the terms of his strict and intensive supervision and treatment (SIST) (alcohol abuse) justified a finding he has an inability to control sexual misconduct:

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… [A] Mental Hygiene Law § 10.03 (e) finding of “inability” based on nonsexual SIST violations will satisfy the Michael M. [24 NY3d 649] standard only when such violations bear a close causative relationship to sex offending. Such a relationship is missing here. It is simply not true — as the State claims — that “there is a significant link between respondent’s alcohol use disorder and his sex offenses” or that his sex offending is “fueled by his drug and alcohol use.” A review of the record citations upon which the State relies for those propositions reveals only that respondent was intoxicated during his sex offending decades ago, and that alcohol use “increases his impulsivity and makes [him] more likely to act out.” … [N]o expert has testified that respondent’s substance abuse is “strongly fused” or otherwise inextricably intertwined with his sex offending … . At most, the expert testimony in this case shows that respondent’s alcohol use is colocated with his sex offending (and, for that matter, with every other facet of his life), and that alcohol disinhibits him from resisting the urge to offend sexually. But this testimony is virtually identical to the expert testimony … is inadequate to meet the State’s burden under Michael M. Matter of State of New York v George N., 2018 NY Slip Op 00942, Fourth Dept 2-8-16

MENTAL HYGIENE LAW (INSUFFICIENT SHOWING THAT SEX OFFENDER’S VIOLATION OF NON-SEXUAL TERMS OF HIS STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) JUSTIFIED A FINDING HE IS UNABLE TO CONTROL SEXUAL MISCONDUCT, COMMITMENT TO LOCKED FACILITY REVERSED (FOURTH DEPT))/STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (MENTAL HYGIENE LAW, INSUFFICIENT SHOWING THAT SEX OFFENDER’S VIOLATION OF NON-SEXUAL TERMS OF HIS STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) JUSTIFIED A FINDING HE IS UNABLE TO CONTROL SEXUAL MISCONDUCT, COMMITMENT TO LOCKED FACILITY REVERSED (FOURTH DEPT))/SEX OFFENDERS (MENTAL HYGIENE LAW, NSUFFICIENT SHOWING THAT SEX OFFENDER’S VIOLATION OF NON-SEXUAL TERMS OF HIS STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) JUSTIFIED A FINDING HE IS UNABLE TO CONTROL SEXUAL MISCONDUCT, COMMITMENT TO LOCKED FACILITY REVERSED (FOURTH DEPT))/CIVIL COMMITMENT (SEX OFFENDERS, MENTAL HYGIENE LAW, INSUFFICIENT SHOWING THAT SEX OFFENDER’S VIOLATION OF NON-SEXUAL TERMS OF HIS STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) JUSTIFIED A FINDING HE IS UNABLE TO CONTROL SEXUAL MISCONDUCT, COMMITMENT TO LOCKED FACILITY REVERSED (FOURTH DEPT))

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