State v. Floyd Y.
| Decision Date | 10 March 2015 |
| Docket Number | No. 30061–2008.,30061–2008. |
| Citation | 9 N.Y.S.3d 595 (Table) |
| Parties | In the Matter of the application of The STATE of New York, Petitioner, v. FLOYD Y., Respondent, for Commitment Under Article 10 of the Mental Hygiene Law. |
| Court | New York Supreme Court |
Attorney General Eric Schneiderman (Assistant Attorney General Anthony Miller, of counsel,) for the State.
Mental Hygiene Legal Services, First Department (Donald Graham and Deborah Mantell, of counsel,) for the Respondent.
The Respondent is the subject of a petition for sex offender civil management pursuant to Article 10 of the Mental Hygiene Law (Article 10). On January 30, 2015, following a jury trial presided over by this Court, he was found to be a Detained Sex Offender who suffers from a Mental Abnormality under that statute. During the trial, he moved to dismiss the petition against him after the close of the State's case, after the close of the Respondent's case and after the verdict. The Court reserved decision on all of those motions. In arguing for such a dismissal, he primarily relied upon the recent decision of the New York Court of Appeals in State v. Donald DD. & Kenneth T., 24 N.Y.3d 174, 996 N.Y.S.2d 610 (2014), more particularly the portion of the opinion regarding respondent Kenneth T.
In the Court's view, prior to Kenneth T., there would have been no question that the evidence in this case was legally sufficient. Kenneth T., however, significantly increased the quantum of evidence the State must present to demonstrate that a respondent has serious difficulty controlling his sexually offending behavior. The three concurring judges in the case went so far as to assert the majority's ruling had created an “impossible standard” for legal sufficiency in Article 10 trials. Kenneth T., 24 N.Y.3d at 200, 996 N.Y.S.2d 610 (Graffeo, J., concurring). Whether that proves to be true obviously remains to be seen.
Kenneth T., moreover, as discussed infra, is only one of a series of recent Court of Appeals decisions which have revealed an extraordinary gulf between the previous rulings of trial and mid-level appellate courts and the Court of Appeals concerning Article 10. The Court of Appeals over the past 18 months has consistently interpreted the statute as providing more due-process rights to respondents and less leeway for the State in proving these cases and made it much more difficult to confine rather than release respondents to supervision if a Mental Abnormality is proven. Kenneth T., in the Court's view, must be interpreted in light of those decisions. It is clear to this Court that the new bar set by Kenneth T. was not met here. The Court therefore orders that the instant petition be dismissed.1
This case has been pending for more than nine years. Mr. Y. has been confined during that entire time. “In the fall of 2005, after failing to achieve passage of legislation to provide for the civil commitment of convicted sex offenders for a number of years, Governor Pataki charged state officials to push the envelope' and use the provisions of the existing Mental Hygiene Law to civilly confine convicted sex offenders whose prison terms were ending.” State v. K.B., et. al., 20 Misc.3d 1110(A), 2008 N.Y. SlipOp 5132 (U) at 1 (New York County Supreme Court 2008) (decision by this Court) (citations and quotations omitted). The Respondent began his post-prison confinement through this procedure which the Court of Appeals subsequently found was unlawful. State of N.Y. ex. rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 825 N.Y.S.2d 702, 859 N.E.2d 508 (2006). (Harkavy I ). In 2007, the Legislature enacted Article 10 and a petition was subsequently filed against the Respondent under that new statute. See State of N.Y. ex. rel. Harkavy v. Consilvio, 8 N.Y.3d 645, 838 N.Y.S.2d 810, 870 N.E.2d 128 (2007) (Harkavy II ). The case was assigned to this Court which denied a motion by the State to change the venue of this case and two unrelated cases to the locations where the crimes which formed the basis for Article 10 petitions had been committed (in Mr. Y.'s case, Oswego County). State v. K.B., et. al., supra.
An Article 10 jury trial was subsequently conducted by Justice Nunez of this Court where Mr. Y. was found to be a Detained Sex Offender who suffered from a Mental Abnormality. Justice Nunez subsequently determined in a dispositional hearing that Mr. Y. should continue to be confined rather than released to Strict and Intensive Supervision and Treatment in the community (SIST). That judgment was affirmed by the First Department. State v. Floyd Y., 102 A.D.3d 80, 953 N.Y.S.2d 566 (1st Dept 2012). The Court of Appeals then reversed the judgment, in a landmark ruling which established new rules governing the permissible recitation of “basis evidence” by expert witnesses. State v. Floyd Y., 22 N.Y.3d 95, 979 N.Y.S.2d 240 (2013). The case was then remitted to this Court, which denied a second motion by the State to transfer the venue of this case to Oswego County. State v. Floyd Y., 43 Misc.3d 1202(A) (New York County Supreme, March 26, 2014). The instant trial was then conducted.
Dr. Kirshner is a New York State licensed psychologist who testified for the State. He said that he reviewed voluminous records regarding the Respondent but did not talk to Mr. Y. because the Respondent refused to speak with him. Dr. Kirshner diagnosed Mr. Y. with Pedophlilia, non exclusive type. He said this meant Mr. Y. had a sexual interest in adults and both male and female children. He also said Mr. Y. met the criteria for Alcohol Abuse Disorder, Cannabis Abuse Disorder and Cocaine Use Disorder, all in a controlled environment. He testified there was no evidence the Respondent had abused these substances during his confinement. He said that Mr. Y. also suffered from AntiSocial Personality Disorder (ASPD). Dr. Kirshner opined that Mr. Y. had a Mental Abnormality under Article 10.
Dr. Kirshner defined “Pedophilia” as “intense urges, fantasies or behaviors involving prepubescent children” where a person had either acted on those urges or suffered significant life distress and the condition had persisted for at least six months.3 Mr. Y.'s substance abuse disorders were supported by evidence that he had trouble using marijuana, alcohol and cocaine over the years, trouble maintaining sobriety and had attributed some of his sexually offending behavior to substance abuse. ASPD requires evidence of a conduct disorder before the age of 15 and Mr. Y. admitted he had been a problem child. The disorder is manifested by being deceitful, irritable, aggressive, irresponsible and demonstrating a lack of remorse for harmful actions. Dr. Kirshner testified that about 80% of the prison population could be diagnosed with ASPD.
Some people “age out” of the condition and some do not. Aging out of the disorder can occur beginning at age 30. Sex offending generally diminishes with advancing age at an even higher rate than general criminality but the degree to which offenders or sexual offenders age out depends on the person. The Respondent is currently 58 years old and was 40 in 1998 at the time of the “Instant Offense”, the crimes which were the basis for the Article 10 petition, described infra.
The combination of ASPD and Pedophilia is a “very toxic mixture”. A person who had only Pedophilia without ASPD “would be less inclined to be deceitful, may have a conscience, that would be an internal braking mechanism that would inhibit him from engaging in future acts of pedophilia”. A person with both conditions, on the other hand, “would not have a conscience or internal braking mechanism that would allow him or inhibit him from future pedophilic acts”4 The addition of substance abuse disorders impairs “braking mechanisms” which would otherwise exist and .5
In addition to looking at Mr. Y.'s past conduct and statements, Dr. Kirshner also considered whether he has done things to remedy his past behavior through treatment or otherwise or still has the same problems he had when he offended. (The Respondent has been confined in prison or mental health facilities for over 14 years and there is no evidence he has sexually offended during that time.) Mr. Y. previously worked as a truck driver, dropped out of school at a young age, obtained a GED degree, married and had a child, was divorced and married again. He was convicted of four counts of Sexual Abuse in the First Degree (the Instant Offense) for sexually abusing two step-children from that second marriage then subsequently developed a romantic relationship with his father's wife (the Respondent's step-mother) after Mr. Y.'s second wife left him. The Respondent then had a child with his former step-mother. He served in the military for eight or nine months and was dishonorably discharged. Mr. Y. dropped out of anger management programs prior to completing them while in prison.
In 1984, Mr. Y. was convicted of a misdemeanor (which was not specified during the trial) regarding a victim named Jean.6 He was working as a bartender at the time and both he and the victim were inebriated. He was alleged to have pulled off the victim's pants outside the bar and when the victim screamed, he choked her and covered her mouth. (Dr. Singer later testified that Mr. Y. received a sentence of 8 days in jail and a $336 fine for this crime .) Mr. Y. reported in later years that he had covered the victim's mouth because he was frightened but had not choked her and that he should have stayed away from her because he had been told she was “trouble”.
Most recently the Respondent had...
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