On May 16, 2008, this Court conducted a hearing, pursuant to Article 10 of the Mental Hygiene Law ("MHL"), to determine whether there is probable cause to believe that respondent: (1) "is a sex offender requiring civil management" within the meaning of Section 10.06(g) of the MHL; and (2) "is sufficiently dangerous to require confinement, and that lesser conditions of supervision will not suffice to protect the public during pendency of the proceedings." See Mental Hygiene Legal Service v. Spitzer, ___ F. Supp.3d ___, 2007 WL 4115936, at *15 (S.D.NY Nov. 16, 2007) (citations omitted). For the reasons set forth below, the Court finds that there is probable cause to believe that respondent is a sex offender requiring civil management and that he is sufficiently dangerous to require continued confinement during the pendency of the proceedings.

On December 21, 1999, respondent pled guilty to one count of Criminal Sexual Act in the First Degree under Indictment Number 4023/98, and was sentenced to ten years imprisonment. See Petitioner's Exhibit 1. Respondent also has prior convictions for Unlawful Imprisonment in the First Degree, Assault in the First Degree, and Assault in the Second Degree. See Petitioner's Exhibit 3. Two of these four felony convictions occurred while respondent was already on parole for other offenses. Id. Respondent also has numerous other contacts with the criminal justice system. Id.; Minutes, 5/16/08 at pp. 31-34.

At the probable cause hearing, petitioner presented the testimony of Christine Rackley, Psy.D., ("Dr. Rackley"), who has been licensed to practice psychology in the State of New York since 1998. See Petitioner's Exhibit 2. Dr. Rackley received her doctorate in psychology from the Illinois School of Professional Psychology, her master's degree from Northern Illinois University, and her undergraduate degree from the University of Wisconsin. Id. Since June 2007, Dr. Rackley has been a Psychiatric Examiner for the New York State Department of Mental Health. From 1997 to 2007, Dr. Rackley was a staff psychologist for the Ulster County [*2]Mental Health Department. Id. Dr. Rackley also has received specialized training in evaluating sex offenders under Article 10 of the MHL; she has conducted more than 50 such psychiatric evaluations, including respondent's evaluation on February 29, 2008. See Minutes, 5/16/08 at pp. 6-10.

The Court found Dr. Rackley to be qualified to provide expert testimony in the field of psychology and credits her testimony. Id. at pp. 13-14. Her report of respondent's evaluation was admitted into evidence as Petitioner's Exhibit 3 pursuant to Section 10.08(g) of the MHL.

Dr. Rackley reviewed several documents in connection with the evaluation: respondent's pre-sentence report, respondent's criminal history, the reports of two psychiatrists who had evaluated respondent, and some of respondent's parole records. Dr. Rackley relied on these materials in diagnosing respondent, and testified that mental health professionals regularly rely upon such materials in diagnosing and treating psychological disorders. See Petitioner's Exhibit 3; Minutes, 5/16/08 at p. 30.

Dr. Rackley also reviewed the results of two tests that assist mental health professionals in determining whether a sex offender is likely to commit another sex offense in the future: the "Static 99" test and the "Minnesota Sex Offender Screening Test, Revised" ("MNSOST-R"). These tests help determine the likelihood that a subject may commit a sexual offense in the future based on actuarial, historical and other data. Respondent had a score of 12 on the MNSOST-R test and a score of 7 on the Static 99 test. According to Dr. Rackley, respondent's score on the MNSOST-R test indicated that there was a 57% chance that respondent will commit a sexual offense in the next six years. Respondent's score on the Static 99 test indicates a 43% chance that he will commit a sexual offense in the next five years. See Minutes, 5/16/08 at pp. 43-45, 51-56.

Dr. Rackley opined, with a reasonable degree of scientific certainty, that respondent suffers from antisocial personality disorder, which is characterized by seven criteria:

(1) an inability to conform to societal norms, (2) deceitfulness, (3) impulsivity, (4) irritability and aggression, (5) a reckless disregard for the safety of others, (6) consistent irresponsibility, and (7) a lack of remorse. Dr. Rackley opined that the first criterion was satisfied by respondent's numerous convictions and arrests, the second by his use of numerous aliases, the third by his conviction for forcibly sodomizing a girl he just happened to see at a bus stop, the fourth by his repeated violent behavior, the fifth by his violence towards others, including firing a shotgun into a group of people, the sixth by his limited work history, and the seventh by his denial that he had caused injury to his victims. See Minutes, 5/16/08 at pp. 17-18, 40-43, 57-58.

Dr. Rackley also diagnosed respondent as suffering from polysubstance dependence, for abuse of cocaine, alcohol, and marihuana. Dr. Rackley's diagnosis was based on information contained in respondent's pre-sentence report. That report, however, did not set forth the source of the information regarding respondent's polysubstance dependence. As such, Dr. Rackley stated this diagnosis was provisional and that the condition was in remission in any event. See id. at pp. 17-18, 39-40.

Finally, Dr. Rackley testified that respondent was sexually preoccupied and perhaps [*3]sexually deviant.^[FN1] The diagnosis of sexual preoccupation is based in part on respondent's written statements that he has had approximately 400-450 sexual partners; that he videotaped his brother having sex with a woman and that his brother then videotaped him having sex with the same woman; that he attended oral sex parties; and that he was engaged to one woman while living with another and was sexually active with both. The diagnosis of sexual deviance is based in part on respondent's statements that he has violent tendencies towards some women and his apparent ability to maintain arousal while committing violence against women. Dr. Rackley noted that most men cannot maintain arousal in the face of violence or suffering, but that violence did not seem to affect respondent's arousal. See id. at pp. 34-36, 49-51, 56.

As a result of the foregoing, Dr. Rackley concluded that respondent has a mental abnormality as defined in the MHL and that he would be a risk to society if he were to be released pending the trial of this matter. Dr. Rackley also testified that respondent needs civil management as set forth in the MHL. See id. at pp. 45-47.

The Court finds that there is probable cause to believe that respondent is a sex offender requiring civil management and is sufficiently dangerous to justify his continued confinement pending trial. The question here is whether the petitioner presented evidence sufficient for the Court to find there is a reasonable belief that the respondent is a sex offender requiring civil management and that he is sufficiently dangerous to require confinement rather than a lesser condition of supervision pending the trial. See State v. C.B., 19 Misc 3d 1103(A), 2008 WL 695543, at *3-4 (Sup. Ct. Bronx Co. Mar. 10, 2008).

The petitioner has made the requisite showing. See MHL §§ 10.06(g), 10.03(q), 10.03(e), 10.03(r). First, it is undisputed that respondent is a detained sex offender within the meaning of the statutes. See MHL §§ 10.03(g), 10.03(p), 10.06(j). Second, there is probable cause to conclude that respondent suffers from a mental abnormality. See MHL § 10.03(I). Specifically, Dr. Rackley's testimony demonstrates that respondent suffers from antisocial personality disorder and sexual pre-occupation and/or sexual deviance and that these conditions constitute a mental abnormality affecting respondent's emotional, cognitive or volitional capacity in a manner that predisposes him to the commission of a sex offense and results in serious difficulty in controlling such conduct. Cf. State v. O.V., 19 Misc 3d 917, 924 (Sup. Ct. NY Co. 2008)(finding paraphilia and antisocial personality disorder constitute a mental abnormality pursuant to Article 10 of the MHL). Indeed, the doctor's testimony demonstrates that there is ample probable cause to believe that respondent's mental abnormality gives rise to such a strong predisposition to commit sex offenses that he is unable to control his behavior. Respondent's criminal history, his high scores on both the Static 99 and MNSOST-R tests, and his commission of crimes while on parole all show that respondent has lacked, and continues to lack, the ability to control himself. See, e.g., State v. Davis, 18 Misc 3d 1135(A), 2008 WL 483398 at *2 (Sup. Ct. Queens Co. Feb. 22, 2008) [*4](finding sex offender lacked impulse control based in part on criminal history, problems while incarcerated, and high scores on Static 99 and MNSOST-R tests); People v. S.S., 17 Misc 3d 1128(A), 2007 WL 4097394 at *5 (Sup. Ct. Schuyler Co. Nov. 6, 2007) (finding probable cause to believe respondent is a sex offender requiring civil management based in part on conduct while on parole).

The Court also concludes that there is ample probable cause to believe that respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility pending trial. Respondent's criminal history demonstrates his capacity to commit dangerous acts, and there are forceful reasons to believe that he would pose a significant danger to the community if not confined pending trial, including the felonies respondent has committed while on parole. See Minutes, 5/16/08 at 36; Petitioner's Exhibit 3. Dr. Rackley testified that respondent falls on the high end of the scale for sexual recidivism and would pose a danger to the public if not confined pending trial. See State v. K.A., 18 Misc 3d 1116(A), 2008 WL 142330 at *6-7 (Sup. Ct. NY Co. Jan. 16, 2008) (finding confinement appropriate pending trial based in part on high score on Static 99 test and psychiatrist's opinion that respondent posed a danger to the public); State v. O.V., 19 Misc 3d at 924 (same).

For the foregoing reasons, the Court finds that there is probable cause to believe that respondent is a sex offender requiring civil management and that he is sufficiently dangerous to require confinement because there are no lesser conditions of supervision that will suffice to protect the public during the pendency of the proceedings.

Accordingly, it is hereby ORDERED that respondent is committed to a secure treatment facility designated by the Commissioner of Mental Health for care, treatment and control upon his release; it is further ORDERED, that the trial of this matter is scheduled for July 14, 2008 at 10:00AM, or for such other date as the parties may agree to or the Court requires; and it is further ORDERED, that respondent shall not be released pending the completion of the trial. See MHL §10.06(k).

Dated:May 27, 2008

Bronx, New York

______________________________

Joseph J. Dawson, A.S.C.J.