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Sex Offender Who Has Difficulty Controlling Sexual Urges, As Opposed to a Sex Offender Who Is Unable to Control Sexual Urges, Should Be Placed Under Strict and Intensive Supervision, Not Confined

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that respondent sex offender should not be confined in a mental health facility after serving his prison sentence, but rather should be placed under “strict and intensive supervision.”  After finding the “least restrictive alternative doctrine” does not apply to Article 10 (Mental Hygiene Law) proceedings, the Court of Appeals determined the evidence did not support the conclusion respondent was a “dangerous sex offender requiring confinement.”  The evidence demonstrated respondent had, with difficultly, been able to control his sexual urges, but did not demonstrate that he was unable to control them (the requirement for confinement):

The Mental Hygiene Law defines “mental abnormality” as “a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct” (MHL § 10.03 [i] [emphasis added]). By contrast, a “dangerous sex offender requiring confinement” is defined in the Mental Hygiene Law 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” (MHL § 10.03 [e] [emphasis added]). The statute — which goes on to describe a “sex offender requiring strict and intensive supervision” as a “detained sex offender who suffers from a mental abnormality but is not a dangerous sex offender requiring confinement” (MHL § 10.03 [r]) — clearly envisages 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, 2014 NY Slip Op 08789, CtApp 12-17-14

 

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Civil Commitment of Two Sex Offenders Reversed—In One Case the Proof the Offender Had “Serious Difficulty In Controlling” His Sexual Conduct Within the Meaning of Article 10 of the Mental Hygiene Law Was Legally Insufficient—In the Other Case, Proof the Offender Suffered from Anti-Social Personality Disorder (ASPC) Alone Did Not Meet the Definition of “Mental Abnormality” in Article 10 of the Mental Hygiene Law

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a partial dissent, reversed the civil commitment of two sex offenders, finding the proof required by Article 10 of the Mental Hygiene Law lacking. In the case of Kenneth T, the state claimed Kenneth suffered from “paraphilia not otherwise specified” (paraphilia NOS) and “antisocial personality disorder” (ASPD).  In the case of Donald DD, the state claimed Donald suffered from ASPD alone.  The Court of Appeals, with respect to Kenneth T, seriously questioned, but did not decide, whether the proof of paraphilia NOS and ASPD sufficiently demonstrated a “mental abnormality” under Article 10 of the Mental Hygiene Law.  The court suggested that a Frye hearing to test the scientific soundness of the opinion evidence in this regard would be a good idea. Sidestepping that issue on stare decisis grounds, the court reversed Kenneth's civil commitment because the proof Kenneth had “serious difficulty in controlling” his sexual conduct within the meaning of section 10.03 (i) was not clear and convincing.  With respect to Donald DD, the court unambiguously ruled that proof of ASPD alone is never sufficient proof of a mental abnormality within the meaning of section 10.03 (i):

We do not decide on this occasion from what sources sufficient evidence of a serious difficulty controlling sex-offending conduct may arise, but they cannot consist of such meager material as that a sex offender did not make efforts to avoid arrest and reincarceration. A detailed psychological portrait of a sex offender would doubtless allow an expert to determine the level of control the offender has over his sexual conduct. However, … testimony that Kenneth T. lacked “internal controls such as a conscience that might curb his impulses” is not a basis from which serious difficulty in controlling sexual conduct may be rationally inferred. * * *

Donald DD.'s appeal presents us with an opportunity to decide a question left open in Matter of State of New York v John S. (23 NY3d 326 [2014]), namely whether a civil commitment under Mental Hygiene Law article 10 may be based solely on a diagnosis of ASPD, together with evidence of sexual crimes … . We hold that it cannot. Matter of State of New York v Donald DD, 2014 NY Slip Op 07295, CtApp 10-28-14

 

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Marriage of an Incapacitated Person Properly Annulled

The Second Department determined there was sufficient evidence to justify the annulment of the marriage of an incapacitated person (Aldo D.). for whom a temporary guardian had been appointed, to the appellant:

…[C]lear and convincing evidence was presented at the hearing that Aldo D. was incapacitated … . Among other things, testimony was adduced that Aldo D. suffered from Parkinson’s disease, and the temporary guardian testified that he observed symptoms of dementia in Aldo D. For example, the temporary guardian related that Aldo D. did not seem to understand that he was being evicted from his apartment, and that he had married without intending to do so. The temporary guardian further testified that Aldo D. was very limited in his ability to walk and dress himself, and he could not cook for himself. He did not recognize his need for help. When questioned by the court, Aldo D. repeatedly denied marrying the appellant, said that he did not remember marrying the appellant, and did not want to be married to her. The appellant acknowledged during her testimony that they had, “to a degree,” two marriage ceremonies, because, at the time of the first ceremony, Aldo D. “wasn’t feeling well.” The evidence before the Supreme Court was legally sufficient to establish that Aldo D. was incapacitated. Because there was legally sufficient evidence presented to the Supreme Court establishing that Aldo D. was incapacitated, it was proper to annul the marriage between him and the appellant pursuant to Mental Hygiene Law § 81.29(d) … . Matter of Dandridge, 2014 NY Slip Op 06311, 2nd Dept 9-24-14

 

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Non-Sex-Offense Committed While On Supervised Released for a Sex Offense Was a “Related Offense” Within the Meaning of Article 10 of the Mental Hygiene Law

The Second Department, in a full-fledged opinion by Justice Hall, determined that a sex offender who had been released and was serving a period of post-release supervision at the time he was arrested and re-incarcerated on a credit-card charge, was incarcerated on a “related offense” within the meaning of the Mental Hygiene Law.  Therefore, the state could properly proceed with civil management proceedings pursuant article 10 of the Mental Hygiene Law.  The respondent argued, and Supreme Court had held, that the credit card offense was not related to his sex offense and therefore the state could not start a civil management proceeding based upon his current incarceration:

The respondent’s 2011 conviction of criminal possession of stolen property in the fourth degree clearly does not fall within the first two categories of a “related offense,” i.e., offenses which are prosecuted as part of the same criminal action or proceeding as the sex offense, and offenses which are part of the same criminal transaction as the sex offense (see Mental Hygiene Law § 10.03[l]). However, the crime of criminal possession of stolen property does fall within the third category, which covers offenses “which are the bases of the orders of commitment received by [DOCCS] in connection with an inmate’s current term of incarceration” (Mental Hygiene Law § 10.03(l)). This category covers “inmates” serving their “current term[s] of incarceration” (…  see Mental Hygiene Law § 10.03[l]). The Court of Appeals has recognized that this third category of “[r]elated offenses” is “broadly worded, reflecting the legislature’s apparent decision to give the State more leeway to pursue civil commitment against soon-to-be-released [DOCCS] inmates than parolees” (Matter of State of New York v Rashid, 16 NY3d at 14 n 12).

When the State initiated this civil management proceeding, the respondent was in the custody of DOCCS, and still subject to the sex offense order of commitment, inasmuch as he had not yet completed the postrelease supervision portion of that sentence. In other words, he was incarcerated on a “related offense,” because he was convicted of that offense while still serving his sentence for the underlying sex offense. Matter of State of New York v Claude McC, 2014 NY Slip Op 05885, 2nd Dept 8-20-14

 

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Petitioner Did Not Demonstrate Need for Involuntary Assisted Outpatient Treatment/Case Presented an Exception to the Mootness Doctrine

The Second Department determined the petitioner did not demonstrate that Luis G met the criteria for involuntary assisted outpatient treatment (AOP).  By the time of the appeal, the order for involuntary AOP had expired.  The Second Department explained the exception to the mootness doctrine which allowed the court to rule in the matter:

Generally, “an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” … . “However, an exception to the mootness doctrine permits courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable” … .

* * * There is an issue as to whether the Supreme Court properly determined that the petitioner demonstrated that Luis G. met all the criteria for involuntary assisted outpatient treatment (hereinafter AOT), as set forth in Mental Hygiene Law § 9.60. This issue has a likelihood of recurrence, either between the petitioner and Luis G. due to his chronic mental illness, or between the petitioner and other patients who may be the subject of involuntary AOT proceedings. In addition, this issue would typically evade appellate review, as involuntary AOT orders have a maximum duration of six months unless extended by a subsequent court order (see Mental Hygiene Law § 9.60[j][2]; [k]). Further, the issue raised on appeal has not been the subject of prior appellate review and is substantial and novel … .

The petitioner failed to demonstrate by clear and convincing evidence that Luis G. met the criteria of Mental Hygiene Law § 9.60(c)(4), as no evidence indicated that he was hospitalized twice during the 36 months prior to the filing of the petition for involuntary AOT, as required by statute (see Mental Hygiene Law §§ 9.60[c][4][i], [j][2]). Moreover, the petitioner failed to establish by clear and convincing evidence that, during the 48 months prior to the filing of the petition for involuntary AOT, Luis G. engaged in any act of serious violent behavior toward himself or others, or threatened or attempted to cause serious physical harm to himself or others … . Matter of Walsh-Tozer v Luis G, 2014 NY Slip Op 04500, 2nd Dept 6-18-14

 

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Under Mental Hygiene Law, Claim Made for Payment from Nursing Home Resident’s Guardianship Account During Resident’s Life Had Priority over Claim by Department of Social Services After Resident’s Death

The First Department, in a full-fledged opinion by Justice Acosta, over a dissent, determined that a nursing home (Eastchester) which had submitted a claim for the resident’s (Shannon’s) care to the resident’s guardianship account during the resident’s life had priority over the Department of Social Services, which submitted a claim for the resident’s care (Medicaid) to the resident’s estate after death:

Eastchester, a skilled nursing facility, admitted Edna Shannon into its care in 2005. In 2008, due to Shannon’s need for assistance, and concerns about the proper handling of her finances by third parties, Eastchester commenced a proceeding pursuant to Mental Hygiene Law article 81 to have a guardian appointed for her person and property. It also filed an application for medical assistance for Shannon’s nursing home costs. In 2009, DSS determined that Shannon was eligible for Medicaid, effective September 1, 2008. By order and judgment entered April 24, 2009, Supreme Court appointed Family Service Society of Yonkers as her guardian. Among other things, the court conferred on Family Service Society the authority to pay Shannon’s nursing home expenses and to pay bills after her death. Shannon died in December 2011 at age 87. * * *

As Eastchester was to be paid out of the guardianship account before any funds passed to the estate, its claim had priority over DSS’s claim.  MHL § 81.44(d) provides that, within 150 days of the death of an incapacitated person, the guardian must serve on the personal representative of the decedent’s estate, or if none, the public administrator or chief fiscal officer, a statement of assets and notice of claim, and “except for property retained to secure any known claim, lien or administrative costs of the guardianship,” deliver all guardianship property to the personal representative, public administrator, or chief fiscal officer (emphasis added). Matter of Shannon, 2014 NY Slip Op 04452, 1st Dept 6-17-14

 

Portion of Assisted Outpatient Treatment (AOT) Order Not Supported by Testimony Should Not Have Been Included

The Second Department determined Supreme Court did not have the authority, under Mental Hygiene Law 9.60, to go beyond the treatment plan and recommendations testified about by the psychiatrist in a proceeding to order Raymond G to comply with Assisted Outpatient Treatment (AOT).  In the absence of any recommendations about Raymond G’s use of his car, the court ordered the impoundment of his car. The Second Department reversed that part of the AOT order and explained what can be included in an AOT order under the terms of the controlling statute:

Mental Hygiene Law § 9.60, commonly known as Kendra’s Law, “provides a framework for the judicial authorization of involuntary outpatient treatment programs for persons suffering from mental illnesses” (Matter of William C., 64 AD3d 277, 279). It sets forth, inter alia, the types of outpatient services that may be ordered by the court as part of an AOT plan, the requirements for the petition, and the procedures for a hearing on the petition (see Mental Hygiene Law § 9.60[a][1]; [e][2]-[3]; [h][1]). * * *

The statute requires that the petition be accompanied by an affirmation or affidavit of an examining physician who recommends AOT (see Mental Hygiene Law § 9.60[e][3][I]), and directs that the court “shall not order [AOT]” unless it is provided with a proposed written treatment plan developed by a physician appointed by the applicable community services or hospital director, which includes “all categories of services, as set forth in [§ 9.60(a)(1)], which such physician recommends that the [patient] receive,” “no later than the date of the hearing on the petition” (Mental Hygiene Law § 9.60[i][1]). Further, the statute provides that the court “shall not order [AOT] unless [the] physician appearing on behalf of [the] director testifies to explain the written proposed treatment plan [and] state[s] the categories of [AOT] recommended, the rationale for each such category, [and] facts which establish that such treatment is the least restrictive alternative” (Mental Hygiene Law § 9.60[i][3]).

Following the hearing, the court “may” order AOT if it finds by “clear and convincing evidence that the [patient] meets the criteria for [AOT], and there is no appropriate and feasible less restrictive alternative” (Mental Hygiene Law § 9.60[j][2]). The order must include specific findings “by clear and convincing evidence that the proposed treatment is the least restrictive treatment appropriate and feasible for the [patient],” and “state an [AOT] plan, which shall include all categories of [AOT], as set forth in [§ 9.60(a)(1)], which the [patient] is to receive” (Mental Hygiene Law § 9.60[j][2]). The order “shall not include any such category that has not been recommended in both the proposed written treatment plan and the [physician’s hearing] testimony” (Mental Hygiene Law § 9.60[j][2]).  Matter of Raymond G…, 2014 NY Slip Op 05183, 2nd Dept 7-9-14

 

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Sex Offender May Not Avoid Civil Commitment Proceeding by Renouncing Citizenship and Leaving the Country

The Third Department determined the respondent in a Mental Hygiene Law 10.06 proceeding (called a SOMTA proceeding) to determine whether he, as a sex offender, should be committed to a secure mental health treatment facility, could not defeat the proceeding by renouncing his citizenship and leaving the country:

It is well established that “Congress has broad authority to set the conditions and procedures that an individual must satisfy in order to renounce his [or her] citizenship” … . In accord with its authority, Congress enacted 8 USC § 1481, which, in relevant part, provides that “[a] person who is a national of the United States whether by birth or naturalization, shall lose his [or her] nationality by voluntarily performing [certain enumerated] acts with the intention of relinquishing United States nationality” … . A citizen seeking to renounce his or her nationality must make an application therefor and, generally, must be outside the United States to do so … . To this end, respondent argues that the SOMTA petition must be dismissed so that he may be released from DOCCS’s custody in order to leave the United States and return to Israel, where he will effectuate his expatriation… .

We flatly reject this argument, which presupposes, among other things, that respondent would actually exit this country if he were released from custod. Even if he did leave, the state is not required to bear the risk that petitioner — an experienced international fugitive — would not return to New York thereafter. In any event, at this juncture, respondent remains a United States citizen confined in New York who is a sex offender alleged to have a mental abnormality and in need of civil management, and petitioner continues to have a legitimate interest in protecting society from the risks he poses… . Matter of State of New York v Horowitz, 2014 NY Slip Op 05001, 3rd Dept 7-3-14

 

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Where It Is Possible Jurors Relied On an Illegal Ground a General Verdict Must Be Set Aside, Even If Alternative Legal Grounds Were Provided to the Jury

The Second Department determined that the inclusion on the verdict sheet of an offense that was not a designated felony under Mental Hygiene Law 10.03 (f) warranted an new trial, even though no objection was raised:

Generally, where no objection to an alleged error is advanced at trial, the objection is unpreserved for appellate review … . However, the inclusion on the verdict sheet of a crime that was not a designated felony within the meaning of Mental Hygiene Law § 10.03(f) presents such a fundamental error that the appellant’s failure to object does not bar our review of the issue in the exercise of discretion … . At trial, the State was required to establish by clear and convincing evidence that the appellant was a detained sex offender who suffered from a mental abnormality (see Mental Hygiene Law § 10.07[d]). “It is an established rule of Supreme Court jurisprudence that a general verdict of guilt must be set aside where the jurors in reaching their verdict may have relied on an illegal ground or on an alternative legal ground and there is no way of knowing which ground they chose” … . “Thus, the Supreme Court has consistently vacated general verdicts where one of the choices afforded to the jury was to find guilt on an unconstitutional theory. It has rejected the contention that the verdict should be upheld because the fact finder presumably based it on an alternative constitutional ground” … . Matter of State of New York v Todd L, 2014 NY Slip Op 04205, 2nd Dept 6-11-14

 

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Supreme Court’s Finding Respondent Was No Longer Suffering from a Dangerous Mental Condition Reversed

The Second Department, in a full-fledged opinion by Justice Chambers, over a partial dissent, determined Supreme Court erred in finding that the respondent no longer suffers from a dangerous mental condition and could be released from a secure psychiatric facility.  Respondent is now 74 years old and had stabbed a woman 20 years ago.  He refuses to take medication and he refused to undergo a psychiatric evaluation by the Office of Mental health. There were stark differences in the assessment of his mental condition presented at a hearing pursuant to Criminal Procedure Law 330.20.  The experts arguing for continued retention were named Simon-Phelan and Formica:

Mental Hygiene Law § 1.03(20) defines a mental illness as “an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation” (Mental Hygiene Law § 1.03[20]).

Upon our review of the record, we find that the credible evidence established that the respondent suffers from a mental illness, the first element of a dangerous mental disorder (see CPL 330.20[1];[c]). Simon-Phelan and Formica opined that the respondent suffers from bipolar disorder, along with various personality disorders, whether narcissistic, grandiose, or antisocial. Most relevant, the respondent’s behaviors, consistently displayed over the past 20 years, as thoroughly documented throughout the record, are indicative of these disorders. These behaviors include his aggressive and violent acts, his abrasiveness when speaking to others, his refusal to follow rules, his inappropriate sexual advances, his inflated self-esteem, his high level of energy, his excessive writing, and his overzealousness with respect to litigation … . Although the categorization of the respondent’s mental illness has differed between mental health professionals, a number of professionals have drawn the same conclusions as Simon-Phelan and Formica, dating back as far as 1994. As one psychiatrist put it in 2003, the debate about whether the respondent’s “pathology is Axis I or Axis II or some combination thereof . . . can be carried on indefinitely,” but when one considers his symptomatic exacerbation, poor judgment, and poor impulse control, all of which continue to exist, he remains in “the category of dangerously mentally ill.” Matter of Marvin P, 2014 NY Slip Op 03690, 2nd Dept 5-21-14

 

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