In re

• Decision Date: 26 January 2012
• Parties: In re the STATE of New York, Petitioner–Appellant, v. ENRIQUE T. (Anonymous), Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00476

93 A.D.3d 158

937 N.Y.S.2d 203

In re the STATE of New York, Petitioner–Appellant,

v.ENRIQUE T. (Anonymous), Respondent–Respondent.

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

Jan. 26, 2012.

West Codenotes

Negative Treatment Vacated

McKinney's Mental Hygiene Law § 10.06(k).

Eric T. Schneiderman, Attorney General, New York (Patrick J. Walsh and Steven C. Wu of counsel), for appellant.

Marvin Bernstein, Mental Hygiene Legal Service, New York (Sadie Zea Ishee of counsel), for respondent.

PETER TOM, J.P., JAMES M. CATTERSON, LELAND G. DeGRASSE, ROSALYN H. RICHTER, and SALLIE MANZANET–DANIELS, JJ.

CATTERSON, J.

In this proceeding in which the New York State Attorney General seeks civil management of a sex offender pursuant to Article 10 of the New York Mental Hygiene Law (hereinafter referred to as “MHL”), we are asked to vacate an order of Supreme Court that unconditionally released the respondent, a convicted sex offender. His release was based on a finding that the pretrial civil detention provisions mandated by MHL § 10.06(k) are facially unconstitutional. This Court now finds that Supreme Court erred in attempting to make such a determination. We therefore reverse, on the law, vacate the order of the respondent's unconditional release, and order the respondent returned to detention pending completion of disposition pursuant to the Sex Offender Management and Treatment Act (hereinafter referred to as “SOMTA”). ¹ Additionally, we reject the respondent's argument on appeal that the statute is unconstitutional as applied to him and those sex offenders who may ultimately be approved for civil management under strict and intensive supervision and treatment, a less restrictive alternative to confinement.

The respondent, Enrique T., is a 36–year–old convicted sex offender whose first conviction for a sexual offense occurred in 1990 when he raped and sodomized a 4–year–old girl whom his mother was babysitting. He pleaded guilty to rape in the first degree and was sentenced to a prison term of 1 to 3 years.

On January 23, 2001, the respondent was arrested and charged with multiple counts of deviate sexual intercourse with a person under age 11, sodomy and sexual abuse. He pleaded guilty to two counts of sexual abuse in the first degree involving sexual contact with his girlfriend's 7–year–old daughter and forcing an 11–year–old girl to undress and allow him to fondle her breasts and vagina. The 2001 rape and sodomy came to light when the younger victim told her mother that she knew about sex because the respondent had forced her into numerous sexual activities, including putting his penis in her mouth and forcing it into her rectum. An investigation determined that between July 1, 2000 and August 31, 2000, the respondent subjected the victim to numerous forms of sexual contact against her will; during the same period, on at least three occasions, he forced a second child to undress and fondled her breasts and vaginal area. In subsequent sex offender counseling, the respondent admitted to the activity, and said he “groomed” the victims by buying them things and that he “fantasized” about them getting naked and in sexual positions; he said his “excuse” was that the older victim was a “big boned girl” who was “ready for sex” and the younger one was “getting there too so it's ok for her too.” He was sentenced on March 2, 2001 to a term of 5 years to be followed by 5 years' postrelease supervision.

After the respondent was released to parole supervision on June 17, 2005, he absconded to Florida and tampered with his electronic monitoring unit, resulting in his parole being revoked on August 15, 2006. The respondent was returned to custody to complete his sentence. The respondent's scheduled release date of January 23, 2011 brought him within the purview of Article 10 in October 2010.

Article 10 forms the basis of SOMTA, enacted by the Legislature, effective April 13, 2007. The statute was based on legislative findings “that some offenders have mental abnormalities that predispose them to engage in repeated sex offenses.” MHL § 10.01(b). The Legislature's concern was that “recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management.” MHL § 10.01(a). “Civil management” means either commitment to a secure psychiatric facility, or management in the community under the supervision of the division of parole. The second option is known as strict and intensive supervision and treatment (hereinafter referred to as “SIST”). MHL §§ 10.03(q), 10.11(a)(2).

When a detained sex offender is nearing release, the agency with jurisdiction over the offender is required to give notice of the anticipated release to the Attorney General and the Commissioner of Mental Health. MHL § 10.05(b). The Commissioner is authorized to designate a multidisciplinary staff that will make a “preliminary review” of the need for civil management and whether to refer the person to a case review team. MHL § 10.05(d).

If the preliminary review results in referral to a case review team, the team must review relevant medical and other records, and may arrange for a psychiatric examination. MHL § 10.05(e). If the case review team finds that a respondent is a sex offender requiring civil management, it must notify the respondent and Attorney General. MHL § 10.05(g). The Attorney General then may file a sex offender civil management petition. MHL § 10.06(a).

Within 30 days after the filing of a civil management petition, the court is required to conduct a hearing without a jury to “determine whether there is probable cause to believe that the respondent is a sex offender requiring civil management.” MHL § 10.06(g). If the court finds “there is probable cause to believe that the respondent is a sex offender requiring civil management,” it must order that the respondent be committed to a secure treatment facility designated by the Office of Mental Health (hereinafter referred to as “OMH”) for care, treatment and control. MHL § 10.06(k). The court is also required to set a date for a jury trial, to be conducted within 60 days after the probable cause determination, and “the respondent shall not be released pending the completion of such trial.” Id.; MHL § 10.07(a).

Subsequently, if, at trial, a jury finds that the respondent is a sex offender suffering from a mental abnormality, then the court determines the appropriate disposition at a hearing. It “shall consider whether the respondent is a dangerous sex offender requiring confinement or a sex offender requiring strict and intensive supervision.” MHL § 10.07(f). Additional evidence may be offered on that issue by both the respondent and the Attorney General. MHL § 10.07(f).

Civil commitment to a secure treatment facility is required if the court finds, upon clear and convincing evidence, that the respondent “has a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.” MHL § 10.07(f). If the court does not so find, it must make a finding of disposition that the respondent is a sex offender requiring SIST. MHL § 10.07(f). The determination is based on consideration of the conditions that would be imposed under SIST, and all available information about the prospects for the respondent's reentry into the community. Id.

In this case, on October 28, 2010, the Department of Corrections and Community Supervision (hereinafter referred to as “DOCCS”) gave notice to the Commissioner and the Attorney General pursuant to MHL § 10.05(b) of the respondent's anticipated release from incarceration on January 23, 2011. On November 22, 2010, it gave notice to the respondent that his case had been referred to a case review team for evaluation. On January 13, 2011, OMH notified the respondent that the case review team had found he was a sex offender requiring civil management, and provided him with a copy of a report prepared by an OMH psychologist. On January 14, 2011, the Attorney General filed a petition pursuant to Article 10, seeking civil management of the respondent following his release from prison. Following the filing of the petition, the Attorney General moved for an order finding probable cause to believe the respondent is a sex offender requiring civil management. The court set a January 20, 2011 return date, appointed Mental Health Legal Services as counsel, and authorized retention of the respondent pending the probable cause hearing.

The Attorney General submitted an evaluation report prepared by an OMH psychologist, dated January 11, 2011. Based on an interview of the respondent, review of his criminal history and records of DOCCS and the State Division of Parole, the OMH psychologist concluded that the respondent has a mental abnormality as defined by MHL § 10.03(i), and that he meets diagnostic criteria for pedophilia and antisocial personality disorder. The Attorney General reported that the respondent had scored a 5 on the STATIC–99 instrument, which predicts the risk of recidivism for sexual offenders, indicating a moderate to high risk. The Attorney General urged that, given the respondent's criminal record and history of having absconded from parole, he is a “detained sex offender who requires civil management,” and that he is “sufficiently dangerous” to require pretrial detention and no less restrictive alternative to OMH confinement would adequately protect the public pending trial.²

On or about May 26, 2011, the OMH psychologist testified at the respondent's probable cause hearing. The psychologist opined that the respondent had retained a deviant sexual arousal to young girls, or chronic pedophilia, and antisocial personality disorder, and that he suffers from a mental abnormality...