State v. Charada T.
| Decision Date | 23 March 2018 |
| Docket Number | 30111–2017 |
| Citation | 59 Misc.3d 1205 (A),106 N.Y.S.3d 725 (Table) |
| Parties | In the Matter of the Application of the STATE of New York, Petitioner, v. CHARADA T., Respondent. |
| Court | New York Supreme Court |
New York State Attorney General Eric Schneiderman (December Sutton, of counsel) for the State.
Mental Hygiene Legal Services, First Department (Jessica Botticelli and Laura B. Hyman, of counsel) for the Respondent.
The Respondent is the subject of a petition for sex offender civil management under Article 10 of the Mental Hygiene Law (the "Sex Offender Management and Treatment Act", "Article 10" or "SOMTA"). He appeared before this Court for an annual review hearing to determine whether he continues to be a dangerous sex offender requiring confinement pursuant to MHL § 10.09.
For the reasons outlined infra the Court holds that: (i) the State did not present evidence that Mr. T. suffered from conduct disorder prior to the age of 15, one of the requirements for a diagnosis of Anti–Social Personality Disorder ("ASPD"); (ii) Mr. T., therefore, cannot be diagnosed with ASPD; (iii) the state did not present evidence that Mr. T. has any other psychiatric diagnosis; (iv) without a valid psychiatric diagnosis, Mr. T. cannot be subject to Article 10 because he does not have any qualifying "condition, disease or disorder" under the statute. The Court therefore orders the petition in this case be dismissed and the Respondent released. Since the Court has determined the Respondent does not suffer from a Mental Abnormality under Article 10, it has not ruled on the question of whether he should remain confined or be released to Strict and Intensive Supervision and Treatment in the community ("SIST"). This order shall be stayed for 45 days to allow the State to seek a stay of this Court's order pending appeal, should the State choose to do so.
The State and the Respondent each presented the testimony of one expert witness at the hearing. Their testimony is first outlined here.
Dr. DeMarco received her Psy.D. in clinical psychology in 2014 and has worked as a psychiatric examiner employed by the New York State Office of Mental Health ("OMH") since December of 2015. She is also an adjunct professor at the John Jay College of Criminal Justice, has an independent therapy and evaluation practice and has worked in a variety of other settings as a psychologist or psychology/extern. She conducted an evaluation of Mr. T. for this case. She wrote a report memorializing her findings on May 13, 2016 and also reviewed subsequent records regarding the Respondent. She interviewed the Respondent by video-conference. She diagnosed Mr. T. with Antisocial Personality Disorder
("ASPD") with psychopathic features, found he had a Mental Abnormality under Article 10 and opined he continues to be a dangerous sex offender requiring confinement.2
Mr. T. was born on June 17, 1973. In September of 1997, he committed two forcible rapes of stranger victims within an hour of each other. In the first assault, he choked the victim into unconsciousness, forced her to perform oral sex and hit her in the face. Following this incident, he felt "aroused" "intoxicated" and felt he was "floating across pavement".3 40 minutes later, he approached a second victim, choked her, beat her in the head and threatened the victim with a razor. Then "despite supposed compliance of this victim" he raped her, caused additional injury, choked her with a pay phone cord and then anally and orally raped her.4 Both assaults occurred in midtown Manhattan beginning a little before midnight. Mr. T. was convicted by guilty plea of Rape in the First Degree and other charges and given a 12 year determinate sentence in satisfaction of these charges.
After being incarcerated, Mr. T. was linked by DNA evidence to a rape which had occurred one year earlier, in 1996, in which he brought a woman to the roof of a building and raped and orally sodomized her. He was convicted of Rape in the First Degree by guilty plea and sentenced to 13 years imprisonment for that crime. Mr. T. was arrested for non-sexual crimes six times between the ages of 18 and 23 years. Dr. DeMarco was unsure of the details regarding these arrests and what crimes Mr. T. was convicted of in connection with them.
In 2001, Dr. DeMarco testified, Mr. T. masturbated on top of his bed while confined in the Department of Correctional Services ("DOCS"). She was unsure, however, what the outcome of this allegation was with respect to the DOCS disciplinary process. She said that in 2008, he was found to have taken his penis out of his pants and had it stroked by another inmate in DOCS. After extensive questioning, Dr. DeMarco indicated she believed Mr. T. had been determined to be guilty of these offenses but she had little understanding of what process was followed in making any such determination.
Dr. DeMarco additionally testified that in 2008 Mr. T. was found by DOCS to have been masturbating in his cell and when confronted by a female corrections officer attempted to pull the officer towards him. In 2010, DOCS determined that Mr. T. walked to the threshold of his cell, was stroking his genitals outside his boxer shorts and then pulled out his penis. Dr. DeMarco then testified that Mr. T. had received twenty Tier 2 tickets and six Tier 3 tickets but was unable to say the time period during which these occurred. She repeatedly said she had written down the relevant dates "backwards".5
With respect to the incident involving the correction officer, Mr. T. told Dr. DeMarco that he did not grab the correction officer's arm or put his hands on her. With respect to the incident where he allegedly pulled out his penis at the entrance to his cell, he said this was the result of his being caught masturbating in his cell by another inmate. Dr. DeMarco said that records she had reviewed from the Central New York Psychiatric Center ("CNYPC") indicated there were multiple times Mr. T. was staring at female staff through his door and masturbating. (Mr. T. was placed at CNYPC, where he continues to be housed, in 2012). There was also one instance where he was found in a bathroom stall with another resident. These incidents occurred between 2012 and 2015. The records indicate that he stared at female staff on six occasions and that he additionally stared at female staff with his hands on his genitals on four occasions. He was also observed masturbating in his room with his door open while staring at female staff twice on one additional date and on two additional occasions. These incidents were indicative of Mr. T.'s inability to manage his sexual compulsions while confined.
Mr. T. had an unstable home life as a child. He has been engaged in sex offender treatment in DOCS on multiple occasions. In the first, in 2001, he participated in a program for five days but was apparently determined to be not ready for treatment by DOCS. He also attended DOCS sex offender treatment from September of 2007 to March of 2007. He was removed from that program for disciplinary reasons. Dr. DeMarco testified that Mr. T. participated in a sex offender treatment program from May 3–30, 2010 then testified that the dates were May 10–30, 2010. He was removed from that program because he was observed masturbating in his cell. He was finally placed in a sex offender treatment and chemical dependency program from March 29–April 11, 2010 but was removed from the program because it was considered an inappropriate placement.
As outlined infra , the Court has determined to strike Dr. DeMarco's testimony regarding the scoring of the Psychopathy Checklist Revised (the "PCLR") by Dr. Burgoyne in 2014. However, Dr. DeMarco also testified that Mr. T. has psychopathic traits, a conclusion she arrived at based on his offending history. She said Mr. T. has engaged in "impression management", that is, an attempt to portray himself in the best possible light rather than focus on his core issues. She also said Mr. T. portrayed himself as a victim and derailed group treatment discussions.
Mr. T. is sexually aroused to non-consenting persons. He believes he does not need the treatment he is being provided. Mr. T. lied about masturbating to female staff during the year prior to Dr. DeMarco's interview, when treatment records indicated this had occurred. Mr. T. has exhibited a lack of remorse, callousness, recklessness and extreme violence upon his sexual assault victims.
Mr. T.'s rapes demonstrated gratuitous violence beyond what was necessary for victim compliance and included humiliating acts like anally and orally sodomizing one of his victims. She said Mr. T.'s sex offender homework indicated he "reported developing a perversion toward hurting other people" and enjoyed exercising power and control.6
Dr. DeMarco testified that Mr. T. likely received some benefit from sex offender treatment while in prison but that the benefit was minimal. Since being placed in OMH custody in 2012, he continues to not explore his sexual deviance or be open or honest in treatment. Dr. DeMarco administered a test called the Violence Risk Scale–Sex Offender Version (the "VRS–SO") which is an actuarial test which includes both static and dynamic factors. The test is designed to measure an offender's progress through sex offender treatment. The test administered in 2016 indicated that Mr. T. was at a high risk to re-offend although it indicated he was at slightly reduced risk from his score in 2014. Dr. DeMarco's review of records for the past year and half does not indicate that Mr. T. has improved.
Dr. DeMarco read some statements from the Defendant into the record regarding his sexual offending. Among other assertions about his offenses, Mr. T. said that:
the power through force was a turn-on, and it became addictive ... I wanted sex so badly and so much, that I couldn't satisfy my appetite. I had to be violent....
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