The State of N.Y. v. Robert, 251233-2010

• Decision Date: 11 April 2011
• Docket Number: 251233-2010
• Citation: 2011 NY Slip Op 50552
• Parties: The State of New York, Petitioner, v. Robert V., Respondent.
• Court: New York Supreme Court

2011 NY Slip Op 50552

The State of New York, Petitioner,
v.
Robert V., Respondent.

251233-2010

Supreme Court Of The State Of New York
Bronx County

Decided on April 11, 2011

Charles Hargreaves, Esq.
Mental Hygiene Legal Service
Marvin Bernstein, Director

Russell T. Seeman, Esq.
Eric T. Schneiderman
Attorney General of the State of New York

Colleen D. Duffy, J.

On July 19, 2010, the Attorney General of the State of New York ("Attorney General"), filed a petition contending that Respondent Robert V. ("Respondent") is a detained sex offender who has a mental abnormality, as that term is defined in Article 10 of the New York State Mental Hygiene Law ("MHL" or "Article 10"), § 10.03, such

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that Respondent should be confined or supervised by the Office of Mental Health once his prison sentence is completed.

On February 7, 2011, Respondent filed a motion to dismiss the petition contending that he was not convicted of any sex crime and that the provision in Article 10, Section 10.07(c) that would allow a jury to determine whether Respondent's robbery and attempted robbery convictions were "sexually motivated" is unconstitutional in that it violates the Ex Post Facto Clause of the United States Constitution. Respondent asserts that Section 10.07(c), the relevant provision of the statute, and its concomitant definitional paragraphs ¹ serve to "retroactively transform" a non-sex crime into a new "sexually motivated felony" and that it increases the punishment for the prior crime. Memorandum of Law In Support of Motion to Dismiss (hereinafter, "Mem. In Support"), p. 3-4.²

For all of the reasons set forth below, Respondent's motion to dismiss is denied.

I. PROCEDURAL BACKGROUND OF ACTION

On July 27, 1995, Respondent pled guilty to two counts of Robbery in the First Degree, PL 160.15(3), one count of Attempted Robbery in the First Degree, PL 110/160.15(3), and one count of Escape in the First Degree, PL 205.15, each charged out of four separate dockets. On September 15, 1995, Respondent was sentenced on those separate dockets to three indeterminate terms of incarceration in a New York State Correctional Facility from 8 to 16 years, and one indeterminate term of incarceration of 2 to 4 years, with all sentences to run concurrently.

Respondent, who, in July 2010 was incarcerated at Shawagunk Correctional Facility in Ulster County, had served almost 15 years of his concurrent sentences and was nearing the end of his term of imprisonment when the Attorney General filed the petition at issue on July 19, 2010.

The petition alleges that the attempted robbery and one of the first degree robbery crimes for which Defendant was convicted were sexually motivated and therefore Respondent is subject to the provisions of Article 10 of the Mental Hygiene Law. The Attorney General filed a petition seeking a determination that Respondent is a detained sex offender who has a mental abnormality such that he should be subject to Article 10 civil management.

A probable cause hearing was scheduled to be held before the Honorable Christopher E. Cahill, Justice of the Supreme Court, in Ulster County. On July 26, 2010, prior to the hearing, Justice Cahill granted Respondent's motion to change venue from Ulster County to Bronx County.

Thereafter, a probable cause hearing was held before the Honorable Wayne M. Ozzi, Justice of the Supreme Court, in Bronx County. On October 15, 2010, Justice Ozzi found that there was probable cause to believe that Respondent is a detained sex

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offender requiring civil management pursuant to Mental Hygiene Law § 10.06(k).

Respondent now contends that the petition should be dismissed, alleging that the provisions of Article 10 that allow a jury to determine if his non-sex crimes were "sexually motivated" violates the Ex Post Facto Clause of the United States Constitution. Mem. in Support at p. 3.

II. THE STATUTORY BACKGROUND OF ARTICLE 10

In 2007, the New York State Legislature passed The Sex Offender Management and Treatment Act ("SOMTA"), which, among other things, includes Article 10 of the Mental Hygiene Law of New York State, with the stated goal of addressing the danger to society posed by recidivist sex offenders. MHL § 10.01(a). The act was signed into law by then-Governor Eliot Spitzer on March 14, 2007, and became effective April 13, 2007.

Determining that some sex offenders have mental abnormalities that predispose them to engage in repeated sex offenses, the Legislature enacted SOMTA which provides that a person who is determined to be a detained sex offender with a mental abnormality, as those terms are defined in § 10.03(g) and (i),³ would be subject to civil management after that person had served his or her criminal sentence. MHL §10.01(b)-(g). Civil management may take the form of either civil confinement in a secure treatment facility or strict and intensive supervision. MHL §§ 10.01 (b),(c),(d) and 10.07(f).

SOMTA provides that, within a specified time frame, either a Supreme or County Court judge shall hold a probable cause hearing to determine whether there is probable cause to believe that the respondent is a detained sex offender requiring civil management. MHL § 10.06(g)-(k).

If the court determines that such probable cause exists, that matter is held over for trial before a twelve person jury, or a judge if the respondent in that case waives a trial by jury. The petitioner (the State of New York through the office of the Attorney General) carries the burden of proving that the respondent in the matter is a detained sex offender who has a mental abnormality by clear and convincing evidence. MHL § 10.06(a) and (b).

Pursuant to SOMTA, in order to be subject to civil management as set forth in MHL § 10.01, et seq., the person must have been convicted of a sex offense, as defined in Article 10, which includes, among others, a "sexually motivated felony." MHL § 10.03(p).⁴

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SOMTA also provides that certain persons who committed crimes before the enactment of SOMTA still may be subject to the civil management provisions of the statute.

For example, a person who was convicted of a sex offense, such as rape or incest, prior to the enactment of SOMTA, may be subject to the civil management provisions of SOMTA if a civil jury (pursuant to the procedures described above) finds such person to be a detained sex offender who suffers from a mental abnormality.

Other individuals who, prior to the enactment of SOMTA, were convicted of one or more certain designated felonies set forth in MHL § 10.03(f) that were not sex offenses prior to the enactment of SOMTA also may be subject to the civil management provisions of SOMTA if a civil jury, pursuant to the process described above, finds, by clear and convincing evidence, that such prior crime was "sexually motivated," and then, if so, whether such person "is a detained sex offender who suffers from a mental abnormality." MHL § 10.07(c)(referred to herein as "Section 10.07(c)").

III. LEGISLATIVE INTENT

New York is one of 18 other states and the District of Columbia and the federal government to have enacted civil confinement statutes such as SOMTA with the intent of addressing "a compelling need . . . to protect residents of this state from sex criminals whose recidivism is predictable and uncontrollable." See, e.g., MHL § 10.01 (a), (b), (c), (e) and (f); see also, Governor's Program Bill 2007 Memorandum, Bill Jacket, L. 2007, ch. 7, at 10.

The Legislature, in enacting SOMTA, noted that SOMTA establishes comprehensive reforms to enhance public safety by allowing the state to manage sex offenders upon the expiration of their criminal sentences through civil confinement or strict and intensive supervision. Governor's Program Bill 2007 Memorandum, Bill Jacket, L. 2007, ch. 7, at 5. The legislature noted that there is a small group of sex offenders, who, because of a mental abnormality, cannot control their sexually violent behavior. Accordingly, SOMTA was enacted to mandate treatment as well as confinement or strict and intensive supervision for sex offenders depending upon their level of risk. Id. at 10.

According to the legislative history of SOMTA, there is a high rate of recidivism among certain sex offenders and certain sex offenders suffer from a mental abnormality that prevents them from controlling their sexual offending behavior. Governor's Program Bill 2007 Memorandum and New York State Senate Introducer's Memorandum in Support, Bill Jacket, L. 2007, ch. 7, at 10, 19. Unfortunately, despite these legislative decrees, there is scant empirical evidence to support the bases asserted by the Legislature in enacting SOMTA.

With respect to the rate of recidivism of sex offenders, numerous studies have found that the recidivism rate for sex offenders in the United States is quite low. See Ewing, Patrick, Justice Perverted, Sex Offense Law, Psychology, and Public Policy, Oxford University Press, 2011, pp. 33-36. Indeed, sex offenders apparently re-offend at lower rates than non-sex offenders. U.S. Dep't of Justice, Office of Justice Programs, http://bjs.ojp.usdoj.gov/content/pub/pdf/rsorp94.pdf, p. 8 (compared to non-sex offenders released from state prison, sex offenders had a lower overall re-arrest rate).

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With respect to "mental abnormality" as that term is defined in Section 10.03(i), there is no such diagnosis in the mental health field; the term lacks any psychiatric validity. LaFond, John Q., Preventing Sexual Violence (2005), 133; see also Young v. Weston, 898 F. Supp. 744, 747 (1995) (term has neither clinically significant meaning nor recognized diagnostic use among treatment professionals) (citations omitted). Indeed, "mental abnormality" is a legal term, not a medical one, and appears to have been first coined by the Kansas Legislature when it enacted that state's civil commitment statute, one of the first such statutes enacted. Hendricks, 521 U.S. at 358-59; Lafond, Preventing Sexual...