State v. Henry T.
| Decision Date | 18 November 2016 |
| Citation | 2016 N.Y. Slip Op. 26385,54 Misc.3d 609,42 N.Y.S.3d 744 |
| Parties | In the Matter of the Application of the STATE of New York, Petitioner, v. HENRY T., Respondent, for Civil Management Pursuant to Article 10 of the Mental Hygiene Law. |
| Court | New York Supreme Court |
Eric Schneiderman, Attorney General, Joseph Muia, Jr., Esq. and Thomas Schoelkopf, Esq., of Counsel.
Mental Hygiene Legal Services, Appellate Division, Fourth Department, Janine Rella, Esq. and Karen Bailey Turner, Esq., of Counsel.
Gary Muldoon, Esq., Guardian ad Litem.
On or about May 8, 1992, Henry T. (“Respondent”) was sentenced for his convictions of Rape in the First Degree and Rape in the Third Degree to an indeterminate sentence of 7 to 21 years imprisonment. He had been held in the custody at the Wende Correctional Facility and was scheduled to be released from custody on November 9, 2012. His convictions for Rape 1st and Rape 3rd qualified Respondent as a sex offender for which civil management could be ordered (MHL § 10.03[g] and [p] ). He was referred for evaluation for civil management under the Sex Offender Management and Treatment Act (see MHL § 10.05 ) and Respondent received notice of that referral on October 9, 2012.
The Case Review Team sought a psychiatric examination of Respondent and assigned Jack Nocera, PhD to examine Respondent and prepare a report. On October 22, 2012, Dr. Nocera produced a report that concluded that:
this psychiatric examiner came to the opinion, to a reasonable degree of professional certainty, that ... [Respondent] ... does not suffer from a congenital or acquired condition, disease or disorder that affects his emotional, cognitive, or volitional capacity in a manner that predisposes him to the commission of conduct constituting a sexual offense and results in his having serious difficulty controlling such conduct (October 22, 2012 report of Dr. Jack Nocera).
On October 25, 2012, the Case Review Team issued a finding that Respondent “is not a sex offender requiring civil management as defined by SOMTA” and transmitted that determination via email to the Officer of Mental Health (“OMH”) and to the Office of the Attorney General that same day. Respondent was notified of the Case Review Team by written notice, which was delivered on November 1, 2012.
On October 26, 2012, a day after the Case Review Team issued its determination, Senior Parole Officer James Carswell sent an email expressing his “Dissenting opinion” regarding the Case Review Team's determination. The lengthy email referred to Dr. Nocera's report and conveyed Mr. Carswell's negative opinion of Respondent's outlook should he be released from custody. This “Dissenting opinion” was forwarded to OMH on October 29, 2012. On November 2, 2012, Dr. Nocera issued a new report, changing his opinion and now indicating that the Respondent did have a mental abnormality that required civil management. Also on November 2, 2012, the Case Review Team rendered a new determination that Respondent was a “sex offender requiring civil management as defined by SOMTA;” notice of the November 2, 2012 determination was delivered to Respondent on November 6, 2012.1
The State commenced this Article 10 petition on November 8, 2012. During the course of this case, Respondent has provided minimal assistance to his appointed attorneys and had repeatedly behaved erratically in Court necessitating his attorneys to take the extraordinary step of moving for the appointment for a Guardian ad Litem. The Court granted that request by appointing attorney Gary Muldoon as Guardian ad Litem on February 23, 2016. On numerous occasions personally observed by the Court, Respondent has exhibited behaviors (both in Court and by letters written by Respondent addressed to the Court and others) that caused the Court to be concerned that the Respondent may have a mental illness which is likely to result in serious harm to himself or others. The Court issued an Order on April 26, 2016 directing that Respondent be evaluated by OMH to determine Respondent's “current mental status and determine if he has a mental illness necessitating admission to a psychiatric hospital for observation, care and treatment.” In a letter dated June 10, 2016, OMH declined to do so on the grounds that Mental Hygiene Law Article 9 and Article 10 are not co-extensive and as Respondent was being held on a pending Article 10 petition, OMH would not do an evaluation pursuant to Article 9. Thereafter, on June 29, 2016, the State commenced an application in Supreme Court, St. Lawrence County for a Rivers hearing (Rivers v. Katz, 67 N.Y.2d 485, 504 N.Y.S.2d 74, 495 N.E.2d 337 [1986] ; MHL § 33.01 ).
Before the Court presently are two motions: (1) Respondent's motion to dismiss dated January 4, 2016; and (2) Respondent's motion to compel an evaluation and report. The State opposed the motion to dismiss in an affirmation dated January 11, 2016. The State opposed the motion to compel an evaluation and report in an affirmation dated July 19, 2016.
The Respondent moved to dismiss under CPLR 3211[a][2] arguing that the Court lacks jurisdiction over the Petition and CPLR 3211[a][3], arguing that the State lacks the capacity to sue. Both arguments stem from the same source, namely that: (1) under MHL § 10.05, the Case Review Team lacked the authority to issue its new determination of November 2, 2012 after it had previously issued a determination of October 25, 2012; and (2) because the Case Review Team lacked the authority to issue its new determination, the State lacked the authority to commence the Petition. Petitioner also argues that the “Dissenting opinion” email written by Carswell after the Case Review Team rendered its decision on October 25, 2012, amounted to improper pressure.
The State argues that Article 10 does not prohibit the submission of multiple reports; thus Dr. Nocera was free to provide an amended report and the Case Review Team was free to consider it before issuing its final determination. The State also argues that the Carswell email did not amount to pressure. The State did not address the argument that the Case Review Team lacked the authority to issue multiple determinations.
The Legislature enacted SOMTA, which included Article 10 in 2007 as a response to the Court of Appeals decision in State ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 825 N.Y.S.2d 702, 859 N.E.2d 508 [2006]. Article 10 sets out procedures for determining whether a “detained sex offender” is a “sex offender requiring civil management”—a term defined as “a detained sex offender who suffers from a mental abnormality” (MHL § 10.03[q] ). A subcategory of “sex offender requiring civil management” is a “dangerous sex offender requiring confinement”—i.e., one whose mental abnormality involves “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] ; see MHL §§ 10.05 –10.08 ; § 10.03[q] ).
When a detained sex offender is nearing release, the referring agency must notify OMH and the Office of the Attorney General of the offender's release and provide certain pertinent information (MHL § 10.05[b], [c] ). Thereafter, a multi-disciplinary staff appointed by the Commissioner of Mental Health will conduct a preliminary review and:
assess relevant medical, clinical, criminal, and institutional records, actuarial risk assessment instruments and other records and reports, including records of parole release interviews where applicable, and records and reports provided by the district attorney of the county where the person was convicted, or in the case of persons determined to be incapacitated or not responsible by reason of mental disease or defect, the county where the person was charged (MHL § 10.05[d] ).
If it is determined after this preliminary review that the respondent should be referred to a case review team to determine whether civil management, is appropriate, a notice of referral is sent to the respondent (MHL § 10.05 [e] ).
A case review team consists of three members of a case review panel, which is to have at least 15 members, and at least two members of each case review team “shall be professionals in the field of mental health or the field of developmental disabilities, as appropriate, with experience in the treatment, diagnosis, risk assessment or management of sex offenders” (MHL § 10.05 [a] ). In making its determination, a case review team can arrange for a psychiatric examination (MHL § 10.05[e] ). The statute envisions that this should be an objective process, specifically stating that “members of the case review panel and psychiatric examiners should be free to exercise independent professional judgment without pressure or retaliation for the exercise of that judgment from any source” (MHL § 10.05[a] ).
There are two outcomes to the review conducted by a case review team: (1) the case review team can determine that the respondent does not require civil management; or (2) the case review team can determine that the respondent does require civil management ( MHL § 10.05[f], [g] ). The case review team is required to notify the Attorney General and the respondent of either outcome (MHL § 10.05[f], [g] ).
A finding that a respondent requires civil management vests the Attorney General with the discretion (but not an absolute mandate) on whether to proceed with an Article 10 petition:
If the case review team finds that a respondent is a sex offender requiring civil management, then the attorney general may file a sex offender civil management petition in the supreme court or county court of the county where the respondent is located. In determining whether to file such a petition, the attorney general shall consider information about any continuing supervision to which the respondent will be subject...
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