State v. Gary K.
| Decision Date | 21 October 2016 |
| Docket Number | No. 30140/16.,30140/16. |
| Citation | 46 N.Y.S.3d 477 (Table) |
| Parties | In the Matter of the application of The STATE of New York, Petitioner, v. GARY K., Respondent. |
| Court | New York Supreme Court |
New York State Attorney General Eric Schneiderman (Anthony Miller, of counsel), for the Petitioner.
Mental Hygiene Legal Services (Jessica Botticelli and Kalina Lovell, 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", the Sex Offender Management and Treatment Act, "SOMTA"). On August 30, 2106 this Court conducted a hearing to consider whether there was probable cause to believe the Respondent was a sex offender requiring civil management pursuant to MHL § 10.06(g). The State presented a report on the Respondent written by a psychologist employed by the New York State Office of Mental Health ("OMH"), Dr. Hannah L. Geller, asked Dr. Geller a few preliminary questions and then made Dr. Geller available for cross-examination by the Respondent's counsel.1 The Respondent did not present any evidence. For the reasons outlined infra, the Court holds that there is probable cause to believe Mr. K. is a sex offender requiring civil management.2
Dr. Geller interviewed Mr. K., interviewed several collateral contacts and reviewed extensive records. She concluded that Mr. K. is a sex offender requiring civil management under Article 10. Mr. K. is 57 years old, approximately 6', 2? tall and weighs just under 200 pounds. He has multiple criminal convictions. Mr. K. was released on parole three times and each time violated his parole, often by committing new crimes a few weeks after parole release. He has used two aliases.
Mr. K. was convicted of Assault in the Third Degree and Sexual Abuse in the Third Degree for a crime which occurred in 1982 after he came up behind a woman and squeezed her buttocks. In 1983 he was convicted of Rape in the Second Degree. In that assault, he followed a 13 year old female stranger into an elevator, forced her to a roof, threatened the victim with a knife, forced her to smoke marijuana and "sodomized" her, although Dr. Geller's report notes it is not clear precisely what kind of sexual assault this encompassed. The victim attended special education classes for learning problems at the time. Mr. K. was sentenced to 18 to 54 months incarceration for that crime. He was picked up by the police on suspicion of rape a little more than three months after his parole release but then released again when the victim could not identify him.
In 1987 he was convicted of Attempted Robbery in the Third Degree and sentenced to 18 months to 3 years incarceration. In that case, it was alleged that he followed a 17 year old stranger victim into an elevator, grabbed her by the neck, threatened her and attempted to rob her and drag her to the roof. Mr. K. fled when an apartment door opened during the assault and was found in possession of a knife and marijuana.
The offenses which form the basis for this petition (the "instant offenses") arose from convictions regarding four sexual assault charges in 1999 against four victims which commenced two weeks after his parole release from his earlier attempted robbery conviction. The instant offenses all occurred within less than a two month period. In the first incident, Mr. K. was alleged to have approached a stranger victim in an elevator, pulled her by the neck, attempted to take her to the roof and when that failed took her to an incinerator room and raped her. He was convicted of Rape in the First Degree and other charges for this crime.
In the second crime a week later, he followed a 15 year old girl to an elevator, cut her face with a razor and raped and sodomized her on a roof. Mr. K. admitted to giving the victim marijuana laced with angel dust prior to the assault, and characterized the assault as consensual. Mr. K. was convicted of Rape in the First Degree and related charges for that crime. In the third incident, two weeks later, he entered an elevator with a 13 year-old stranger, placed a box cutter to her neck, cut her and dragged her to an apartment landing. As he began to sexually assault the victim, a person entered the stairwell and Mr. K. fled. He was convicted of various sexual offenses for that crime. Finally, three weeks later, Mr. K. placed a knife to the throat of a 20 year old victim in an elevator and pulled her body to his but was apprehended after a witness came upon the scene. He was convicted of Burglary in the First Degree and Attempted Rape in the First Degree with respect to that assault.
Dr. Geller's report notes that Mr. K. was convicted of a total of 24 felony and 20 misdemeanor counts with respect to these 1999 offenses. She notes he received a sentence of "17–1–18 to 20 years" incarceration with five years of post-release supervision for his 1999 crimes (R–5). This sentence recitation is obviously incorrect; likely another result of the numerous typographical errors in Dr. Geller's report.
Dr. Geller interviewed Mr. K. for about four hours by video-teleconference while he was confined at the Gowanda Correctional Facility. She reported that Mr. K's affect was normal during the interview, although there were some signs of "psychomotor retardation", and said Mr. K. appeared sad and reported depression and anxiety (R–5). She opined the anxiety was situational. Dr. Geller opined that Mr. K. was not a reliable reporter because his statements during the interview sometimes contradicted police reports and his own prior statements. She said his long-term memory, orientation and simply auditory attention appeared normal but that his cognitive functioning was below normal limits and that he had difficulty with judgment, abstract reasoning, the ability to explain common English words and mental flexibility. She reported that Mr. K.'s "presentation is consistent with below average intellectual ability or cognitive decline" (R–6).
Mr. K. was raised by his mother and step-father in Brooklyn and began getting into trouble with drugs, shoplifting and indiscriminate sexual activity around the ages of 13 and 14. He is currently in contact with one brother among his nine siblings. Mr. K. attended special education classes as a child and dropped out of school in the 11th grade. He has held various jobs including being a messenger and kitchen helper and has also committed robberies and burglaries. Mr. K. has previously been diagnosed with Adjustment Disorder with Anxiety
and in 1986 was diagnosed with "Mental Retardation with Behavioral Affects", "Residual Adult Attention Deficit Disorder" and Mixed Organic Brain Syndrome" (R–8).
He started drinking alcohol at age 13–14 and using phencyclidine ("PCP", "angel dust" or "dust") at age 15–16. All of Mr. K.'s sexual offenses occurred while he was using drugs or alcohol and substance abuse has had a negative impact on both Mr. K.'s intimate relationships and ability to hold a job. Dr. Geller opined, however, that Mr. K. had little insight into the problems arising from his substance abuse. She cited the negative assessment of a drug abuse counselor who had worked with him in prison who said Mr. K. had insufficient insight, was defensive and lacked coping skills and social supports which could help him avoid substance abuse.
Mr. K. says he is heterosexual, has never married or had children and engaged in various intimate relationships with partners he has never been faithful to. Mr. K. has admitted to being aroused to non-consenting sexual partners but denied during his interview that he had fantasies about non-consensual partners now. He has engaged in sex with prostitutes, used pornography and visited strip clubs. Although a number of his victims were teenagers, he asserted that choosing such victims was accidental.
Mr. K. completed an eighteen month sex offender treatment program ("SOTP") at the Gowarda correctional facility in May of 2016. However, counselors from the program said Mr. K.'s participation in treatment was problematic in many respects including blaming victims, minimal blame acceptance and the inability to identify and solve life problems. Dr. Geller acknowledged, however, that Mr. K.'s difficulty explaining things which she found in her interview might have also contributed to his being unable to explain things sufficiently during his sex offender treatment. Mr. K. also had difficulty completing written assignments. Sex offender treatment typically occurs only in groups and does not include individual counseling. Dr. Geller acknowledged that Mr. K. might have received some minimal benefit from sex offender treatment.
Mr. K has reported, however, that he now understands the harm his offenses have caused and regrets it. He said his offenses were previously triggered by watching pornography and abusing substances but said those things would not be re-offense triggers for him today. One counselor described Mr. K. as being very defensive and inflexible and said Mr. K. did not trust his counselors. Dr. Geller said Mr. K.'s completion of sex offender treatment was "nominal at best and he did not benefit from his treatment" (R–11). During his most recent incarceration, Mr. K. had 8 "Tier 2" disciplinary infractions (infractions of moderate severity under the Department of Corrections and Community Supervision's three-tiered disciplinary assessment system) all for non-violent non-sexual violations. Mr. K. also participated in a substance abuse treatment program in prison.
During his interview with Dr. Geller, Mr. K. did talk about some of his sexual offenses and admitted to extensive criminal sexual behavior. He said he did not recall some information and some of his reports differed from the information in his rap sheet. Dr. Geller interviewed three staff members at the Gowanda...
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