The Respondent is the subject of a sex offender civil management proceeding pursuant to Article 10 of the Mental Hygiene Law ("Article 10"). As noted in more detail infra, the Respondent admitted that he suffered from a Mental Abnormality under the statute and was given an agreed-upon disposition of Strict and Intensive Supervision and Treatment ("SIST") on September 15, 2009. On November 15, 2010, the State brought a petition to revoke the Respondent's SIST placement and instead have him confined in a Secure Treatment Facility. That petition was opposed by the Respondent. For the reasons stated below, the State's petition is denied and the Respondent is ordered to be returned to SIST as indicated infra.

STATEMENT OF FACTS

Background

On December 9, 2008, this Court, in a detailed decision, found that there was probable cause to believe that the Respondent was a detained sex offender who suffered from a mental abnormality pursuant to Article 10. State v. P.H., 22 Misc 3d 689 (New York County Supreme Court). The facts relevant to the Respondent's history prior to that date are fully recounted in that decision. The most relevant aspects of that history will be briefly outlined here. The "instant offense" which resulted in P.H. being eligible for sex offender civil management occurred in 1993 and led to a conviction in 1994 for Attempted Rape in the First Degree, Sexual Abuse in the First Degree and Burglary in the First Degree. In that incident, the Respondent had been on a rooftop where he was looking at a woman in an apartment across the street, using cocaine and masturbating. He entered the victim's apartment through a window, took a knife from the apartment, got on top of the previously sleeping victim and placed her hand on his penis. The Respondent at this point indicated that he could not become aroused. The victim threw P.H. off of her bed. He then fled from the apartment and took a purse from her. This was the only incident in which it was known, prior to the Respondent's placement on SIST, that he had [*2]engaged in a sex offense involving physical contact with a victim.

P.H. did, prior to being placed on SIST, have an extensive history of exhibitionism. Typically, this would involve him masturbating in public places while his penis was partially exposed to public view. It is clear from his history that he has engaged in such conduct on a large number of occasions over an extensive period of time. Prior to this Court's probable cause determination, he had been diagnosed as suffering from exhibitionism, voyeurism and cocaine dependence. This last diagnosis was found to be in sustained full remission. Prior to being placed on SIST, P.H. also had a long history of burglary, trespassing and theft related arrests and convictions.

In its probable cause decision, this Court found that the Respondent's voyeurism and exhibitionism were compulsive and that P.H. seemed incapable at that time, in particular, of controlling his urges to masturbate in public places. State v. P.H., 22 Misc 3d at 710. The Court credited the opinion of the State's expert witness, Dr. Erika Frances, that although P.H. had been known to engage in a contact sexual offense on only one occasion in 1993, that offense had directly arisen from his voyeurism and exhibitionism. The Court concluded: "Having no apparent ability to control his voyeurism and exhibitionism, the Court is hard pressed to conclude that he is able to control the kind of hands on contact offense which previously arose out of those identical behaviors." Id. The Court therefore found that, although P.H. during his lifetime had been known to have committed only one crime which was covered under the statutory definition of a "sex offense" under Article 10 (see discussion infra), there was probable cause to believe P.H. was a detained sex offender in need of civil management.

On September 15, 2009, the Court, the State and the Respondent entered into an agreed-upon disposition of the State's Article 10 petition. Pursuant to this disposition, the Respondent admitted that he was a detained sex offender who suffered from a mental abnormality under the condition that he would be placed on SIST rather than confined. The Respondent was subsequently placed on and monitored under SIST. On November 15, 2010, the State brought a petition seeking to revoke the Respondent's SIST placement and subject him to confinement. The State's petition was based on the arrest of the Respondent on a charge of Assault in the 3rd Degree for an incident which allegedly occurred on August 11, 2010. As recounted in more detail infra, in that incident, the Respondent apparently placed his cell phone camera under the skirt of a woman in Union Square Park with the intention of photographing the victim. The victim, upon discovering the camera, threw it and then scuffled with the Respondent when he attempted to regain possession of his cell phone. The victim sustained physical injury in the course of that struggle.

The State's petition was accompanied by a report by a psychologist employed by the New York State Office of Mental Health ("OMH") Dr. Ronald Field. Dr. Field, however, contrary to the position of the State in its petition, opined that the Respondent did not meet the criteria for confinement under Article 10. Despite Dr. Field's report, this Court issued an order finding that there was probable cause to believe that P.H. was a dangerous sex offender requiring confinement and ordered P.H. to be confined in correctional facility or Secure Treatment Facility pending a hearing. Those hearings then commenced on a number of dates and involved extensive testimony by multiple witnesses called by both parties. P.H. has been confined by the New York City Department of Correction during the pendency of these proceedings which have [*3]extended over more than five months. The testimony at the hearings is summarized here.

Testimony of Parole Officer Jose Ramirez

Parole Officer Jose Ramirez said that he had been employed as a parole officer in New York for 17 years and was assigned to supervise SIST parolees. He said that he had daily contact with the eight SIST parolees he was currently supervising. Upon his release from custody, Officer Ramirez testified, the Respondent was notified of his SIST conditions and acknowledged understanding them. In addition to the terms of the agreement, "special conditions" were also imposed as warranted. Officer Ramirez used the example of modifying the Respondent's curfew and not permitting him to provide candy to children on Halloween to illustrate special conditions that were occasionally imposed.

The Respondent was required to report to Officer Ramirez every Wednesday. During these meetings, the two would discuss the Respondent's daily activities, go over conditions and talk about general matters of import. The Respondent was required to submit to a urine test and verify his employment status and attendance record at programs. Daily monitoring of the Respondent was conducted by use of an electronic GPS monitoring device. His curfew was set for 7:00 P.M. and he was required to notify Officer Ramirez when he was on his way home. Part of the Respondent's treatment regimen required group and individual counseling at the Shiloh Program.

Officer Ramirez said that subsequent to the Respondent's release on September 29, 2009 and placement on SIST, he learned that the Respondent violated the terms of the agreement by masturbating in a public place. The Respondent admitted to masturbating inside the stall of a public restroom and a library. Officer Ramirez said that he recalled that both of these masturbation incidents occurred in enclosed bathroom stalls. Officer Ramirez learned of these two incidents from the polygraph examiner. The Respondent admitted these acts in an interview in connection with his polygraph examination. There was no report that he had lied with respect to these incidents. It was determined that these violations of the SIST agreement were to be dealt with in therapy.

In November of 2010 the Respondent notified Officer Ramirez that he was in custody at the 13th precinct in connection with an incident that occurred back in August. The Respondent said he did not know why he had been arrested. When Officer Ramirez spoke to officials at the precinct he was told that the Respondent was arrested for assault and attempting to record with his cell phone underneath a woman's skirt.

The day following his arrest the Respondent met with Officer Ramirez in Officer Ramirez's office and they discussed the August incident. The Respondent said he was at the outdoor market on 14th Street with his bag placed on the floor. A young lady, the complainant, was standing in front of him while he was holding his phone. The lady accused the Respondent of videotaping her, then she grabbed the phone from his hand and threw it. The Respondent said he was shocked but tried to retrieve his phone which had been shattered. As he did this, he was grabbed by a male and placed in a headlock. When he was released the Respondent said he picked up his bag and left.

When Officer Ramirez asked the Respondent why he made no mention of the incident prior to being arrested he said that he was afraid to tell Officer Ramirez because he might lose his freedom. Officer Ramirez said he maintained daily contact with the Respondent between August [*4]and November of 2010 and during that time the Respondent never mentioned the incident at the 14th Street market. Officer Ramirez and his partner then placed the Respondent in custody.

Officer Ramirez learned two to three weeks before he took the Respondent into custody that he had lost his job delivering packages for a messenger service. The Respondent was unable to explain why he had been terminated and Officer Ramirez testified that he decided to "let it go". During a group counseling session in October 2010 attended by the Respondent and Officer Ramirez the issue of his termination was discussed. The Respondent said that he was terminated because of a dispute over the issuance of Metrocards. Officer Ramirez later verified that the reason the Respondent was terminated was because of the August incident. The Respondent was identified as the perpetrator of the August incident from information the police retrieved from his messenger bag and then the selection of his photo by the complainant in a photo array.

Officer Ramirez explained that he ordered the above-mentioned polygraph because, approximately one month prior to being arrested for the August incident, the Respondent began acting nervous and expressed concern over his finances among other things. Although the polygraph was originally scheduled for October of 2010, it had to be rescheduled to November 17, 2010 due to the unavailability of the polygraph examiner. Although Officer Ramirez was unable to state whether the Respondent was evaluated by the polygraph instrument itself, he indicated that the polygraph examiner believed the Respondent was being deceptive with respect to one of the questions posed to the Respondent.

Officer Ramirez testified that he was aware that the Respondent was in possession of a cell phone with video recording capability. Subsequent to being placed under arrest, the Respondent's phone was examined but no photos or video recordings were found. Officer Ramirez stated that the Respondent's phone was periodically checked, but that he never found any images that were sexual in nature. The Respondent was authorized by the Division of Parole to have a cell phone as a tool to assist in supervising him and for use related to his job.

When asked whether the Respondent could safely be supervised in the community, Officer Ramirez opined that he did not believe the Respondent could be adequately supervised because the trust between the Division of Parole and the Respondent had been violated. With respect to the written SIST conditions, Officer Ramirez testified that the Respondent had violated condition No.10, requiring him to report promptly and truthfully to any inquiry from representatives of the Division of Parole and condition #13, requiring him not to break any law or engage in behavior threatening his safety or the safety of others. He said that the allegations of assault on the woman at the 14th Street market were significant in the context of the Respondent's "sexual offense cycle". Officer Ramirez said: "Mr. Henderson has a unique sexual history, dating back, you know, a long time. A lot of deviant sexual behavior. You know, from public masturbation, it's just so much, you know."^[FN1]

Officer Ramirez indicated that the level of supervision with which the Respondent's case was managed, consisting of daily contact either in person or by phone, visiting the Respondent's apartment, monitoring his program attendance, verifying his work schedule, and monitoring him with a GPS device was as high a level as could be implemented.

Officer Ramirez stated that during his supervision of the Respondent he had approved the [*5]apartment in which the Respondent asked to reside and allowed the Respondent to play guitar at religious services on Sunday mornings. Subsequent to being terminated from his job at the delivery service the Respondent did some work for his landlord at the location where he resided and at a separate residence owned by his landlord on Noble Avenue. Officer Ramirez verified that the Respondent maintained bank accounts that were monitored weekly and that, in order to enhance employment opportunities, the Respondent was approved to obtain a learner's permit to drive. The Respondent's suggestion of procuring employment as a parking attendant was immediately rejected by Officer Ramirez in light of the Respondent's prior criminal conduct while previously employed in that capacity.

Testimony of Criminal Complainant

The next witness called by the Petitioner was permitted to testify wearing sunglasses and a hat and was also permitted to use the pseudonym "Ms. Smith". Ms. Smith testified that on Wednesday August 11, 2010 at approximately 12:30 P.M. she was working at a farmer's market located at Union Square in New York County. Ms. Smith stated that she was in the process of writing on a chalkboard next to a table where a cooking demonstration was taking place. Her body was in an aisle between two tents and she had her back to a crowd of two or three people.

As she was writing, Ms. Smith felt that she was bumped in her calf area, closer to her knee that her ankle, between her legs. Ms. Smith's legs were positioned closer than shoulder-width apart. Initially, she stated that she brushed it off, but when the bumping persisted she looked down. Ms. Smith, who was wearing a skirt, observed the source of the bumping between her legs to be a closed messenger bag being swung by the individual holding it. Resting loosely on top of the bag was a Blackberry phone positioned in a manner that allowed the lens of the device to record images above the device.

Ms. Smith stated that she immediately grabbed the phone and then turned around to see who was holding the bag. As she was "assessing the person", she threw the phone over the crowd. Ms. Smith identified the Respondent as the individual she saw in possession of the bag. Ms. Smith said that she then attempted to gather pieces of the phone which had shattered. Upon picking up the battery to the phone, she was confronted by the Respondent who attempted to pry it from her hand. The Respondent began screaming repeatedly: "You're stealing my phone." Ms. Smith responded by stating: "You were trying to film up my skirt."

The Respondent held on to Ms. Smith's wrist as she maintained her grip on the battery. Ms. Smith said that she fell to the ground, landing on her left side and the Respondent fell on top of her as a few others tried to separate them. At this point Ms. Smith lost her grip on the battery. She then felt the Respondent being lifted off of her. As a result of landing on the ground, Ms. Smith injured her back. She also indicated that her elbow and left side were hurting. She maintained that her back still hurts, particularly when it's cold, and that she was instructed to attend physical therapy. Ms. Smith stated that she went to the 13th precinct Detective squad and selected the Respondent's photograph from an array. At no time did Ms. Smith authorize the Respondent to photograph or record any portion of her body.

Testimony of Dr. Ronald Field

Dr. Ronald Field was called as a witness by the Respondent. Dr. Field testified that he is a clinical psychologist and a psychiatric examiner employed by the New York State Office of Mental Health. As part of his duties he evaluates respondents pursuant to Article 10 of the [*6]Mental Hygiene Law. He stated that he has conducted approximately seventy-five such evaluations, including one of the Respondent in this case which took place on November 12, 2010. Dr. Field stated that he concluded that the Respondent is not currently a Dangerous Sex Offender Requiring Confinement (the designation which is at issue in this petition). Although Dr. Field did not credit the Respondent's denial that he was involved in the above-mentioned incident with Ms. Smith, he characterized the incident as a "hands-off offense" and opined that the Respondent was unlikely to commit a "hands-on offense" in the future.^[FN2] He added that research supported the notion that individuals engaging in acts of exhibitionism and voyeurism were unlikely to escalate to the commission of hands-on offenses. One study referred to by Dr. Field found that 26% of hands-off offenders escalated to hands-on offenses, while a more recent 2006 study estimated the same escalation rate to be 9.1%. Dr. Field's report related to his evaluation of the Respondent was received in evidence (Respondent's Exhibit A).

Dr. Field's diagnosis of the Respondent resulted in a finding of voyeurism, exhibitionism and cocaine dependence in sustained full remission. Dr. Field stated that he agreed with the findings made by Dr. Erika Frances who originally examined the Respondent and agreed that the Respondent had violated his SIST conditions. Regarding the Respondent's participation in treatment, Dr. Field said that the Respondent was not completely forthcoming, but was mainly compliant and attentive. He stated that the Respondent had adapted well to life in the community in that he had procured employment, a stable residence and had a social support network. He characterized the Respondent as "C student" in terms of his treatment.^[FN3]

With respect to the one hands-on offense committed by the Respondent in 1993, Dr. Field opined that the respondent's cocaine use and homeless status at the time played a significant role. He noted that no clear pattern of hands-on offending existed in the Respondent's background and described the incident at the 14th Street market as "opportunistic and impulsive, compared to a more stalking type behavior".^[FN4] Dr. Field also pointed out that the Respondent was at liberty between September of 2009 and November 2010, during which time he did not commit what Dr. Field considered to be any hands-on sex offenses. If the Respondent was required to continue with SIST, Dr. Field testified that he would recommend that he be denied access to recording devices and be subject to additional polygraph examinations. The polygraphs were recommended as a vehicle to induce the Respondent to be more forthcoming.

On cross-examination Dr. Field stated that he was in agreement with Dr. Frances's [*7]opinion that the Respondent suffers from a Mental Abnormality [pursuant to Article 10]. However, Dr. Field also stated that the Respondent was not a Dangerous Sex Offender Requiring Confinement. During his testimony, Dr. Field outlined a number of documents he had reviewed and persons he had spoken to in arriving at his conclusions.

When asked about a November 2009 incident involving the Respondent masturbating in the public stall of a library or bus station, Dr. Field said that he was aware that the Respondent delayed disclosing the incident because he believed it was not in violation of his SIST conditions. Dr. Field stated that he was also aware of the Respondent's conduct leading to convictions for public lewdness and infractions while in custody. Risk factors revealed to Dr. Field by the Respondent placing him in jeopardy of re-offense were crowded places and observing women wearing tight clothing or short skirts. Dr. Field characterized the identification of these risk variables as "superficial". The Respondent also disclosed to Dr. Field that when he discovered that the cell phone he obtained was able to take photographs and record images he became tempted to use it for those purposes.

With respect to the incident at the 14th Street market, the Respondent told Dr. Field that he had placed the phone on top of his messenger bag to receive a pamphlet. The Respondent then verified that he was involved in a scuffle during which Ms Smith threw his phone. Describing the physical interaction between the Respondent and Ms. Smith, Dr. Field stated that he was informed by the Respondent that he had "acted defensively". When asked why he made no further inquiry of the Respondent concerning the incident Dr. Field testified that, since he believed the Respondent was not being truthful, there was no point in soliciting information which he was unlikely to find credible. He acknowledged that he did not know whether the Respondent had been stalking Ms. Smith prior to placing his cell phone camera under her skirt.

Dr. Field further stated that he understood the sexually motivated felony statute to address criminal conduct which, though not a sex offense, was engaged in for the purpose of sexual gratification. He agreed that the act of placing the phone on top of the bag to photograph or record up Ms. Smith's skirt was conduct the Respondent engaged in for purposes of gratifying himself sexually.

When Dr. Field was asked whether the conditions of SIST the Respondent was required to adhere to provided adequate treatment, he stated:

Well, in light of the violation, he needs something more. So to say that he - that he got adequate treatment, he's still - there are issues that he needs to work on that he hasn't worked on yet. Whether he's, I think, receiving adequate treatment and internalizing that treatment are two separate things.

So he may have been receiving adequate treatment, but just not participating or incorporating that treatment to the level that he needs to mitigate his risk for these type of offenses in the future. That's what I would like to see him start doing.^[FN5]

Dr. Field maintained that it was his opinion that the Respondent should not be confined and that he was unlikely to commit hands-on offenses in the future. Dr. Field noted that Article [*8]10 lacked provisions to confine individuals in violation of SIST when the nature of the violations are such that the violator fails to meet the specific definition of a Dangerous Sex Offender Requiring Confinement. Dr. Field opined that the type of voyeurism the Respondent engaged in could not be easily extinguished. He said that the Respondent was "likely to engage in these kinds of hands-off offenses at least until such time that he internalizes his treatment goals" or is returned to jail.^[FN6]

Testimony of Dr. Kay Jackson

Dr. Kay Jackson, the Executive Director of the Shiloh Psychological Consulting Program (hereinafter, the "Shiloh Program") testified on behalf of the State. She said that she was a licensed psychologist practitioner and supervisor providing psychotherapeutic treatment to individuals with "intimate aggression" issues. She stated that she had been affiliated with the Shiloh Program for five years. Dr. Jackson outlined her educational background, group affiliations and past work experience related to the treatment of sex offenders. Over her 27-year career providing treatment to sex offenders Dr. Jackson testified that she had worked on thousands of cases. Dr. Jackson first met the Respondent when he was referred to the Shiloh program in September of 2009. Dr. Jackson discussed the conditions of SIST and what the Shiloh program had to offer the Respondent. During subsequent meetings Dr. Jackson discussed the Respondent's criminal history with him.

The Respondent was placed in a group with other SIST parolees. The group met on a weekly basis. The Respondent initially attended weekly individual sessions in addition to the group sessions. Because the Respondent failed to disclose certain information to the program, in August of 2010 his individual sessions were increased to twice weekly. Dr. Jackson stated that the Respondent failed to disclose that he had been spending time at Starbucks cafes distant from his residence or place of employment, that he did not reveal that he had lost his job, or the reason he was terminated, and that he had tried to secure a greater reimbursement from Medicaid than he was entitled to.

Dr. Jackson said that the Respondent disclosed during a group session that he had lost his job due to confusion over reimbursement for a Metrocard. The Respondent told the group that he had been treated unfairly by his former employer. Some of the group members expressed concern that he had been unjustly terminated while others thought the Respondent was seeking to obtain compensation to which he was not entitled by acquiring Metrocards from his employer and sister and then reselling them.

Dr. Jackson also testified that between November and December 2009 she learned that the Respondent had befriended a woman and failed to inform her of his history as a sex offender as required by his SIST conditions. The Respondent was offended when he learned that his parole officer at the time intended to inform the woman about his history. The Respondent informed the woman that he had a "felony history", but did not reveal the sexual nature of his prior criminal contacts.

With respect to the previously mentioned incident where the Respondent revealed to the polygraph examiner that he masturbated in a public restroom, Dr. Jackson said the Respondent initially explained that he concealed this information because he did not believe he was violating [*9]the conditions of SIST given the location where the masturbation occurred. Dr. Jackson stated that she expressed her concern to the Respondent regarding such "relapse behavior", emphasizing the importance to the Respondent of discussing his masturbatory habits, sexual fantasy behavior, arousal pattern and attraction to adult females. Dr. Jackson met with the Respondent, his parole officer and Mr. Larry Kirschenbaum - a social worker from OMH - to discuss these matters.

Between December 25, 2009 and March 25, 2010, Dr. Jackson stated that the respondent was actively participating in treatment, spoke openly about the difficulties of being on SIST and provided feedback to other group members. He maintained a platonic friendship with the woman he had met on the subway and moved into his own apartment. Dr. Jackson said that there was no indication that the Respondent failed to comply with his curfew and that he was able to maintain employment.

Between March and June of 2010 Dr. Jackson stated that the Respondent remained productive in that he continued to play music in his church group and strengthened his relationship with his sister. The Respondent was also permitted to extend his curfew in order to permit him to practice with other musicians at a studio. Dr. Jackson said the Respondent was working to address his sexual fantasies and was more realistic regarding the need for long-term support. The Respondent reached out regularly to his treatment providers and actively participated in group sessions.

Between June and September of 2010 the Respondent said that he was bored with his messenger job. He raised the subject of attending vocational training. He said that his desire to have sexually deviant thoughts had decreased and that he had not been engaged in any inappropriate conduct. He indicated that he wanted to save his sexuality for a consensual relationship and avoid masturbating. Though he continued to play music and maintained his relationship with his sister, he was rebuked for attempting to pit staff members at the program against one another regarding scheduling matters. Dr. Jackson identified this as a form of psychological manipulation called "splitting". When confronted, the Respondent never fully acknowledged culpability for his conduct.

Dr. Jackson testified that she was most troubled by the Respondent's interest in procuring forms of employment which were likely to trigger publicly voyeuristic behavior. For example, he raised the possibility of working as a parking lot attendant. Dr. Jackson stated that she was shocked that the Respondent would consider an obviously inappropriate occupation given his prior history of looking up the skirts of female hospital staff members as they entered and exited their vehicles. Dr. Jackson reported that the Respondent drew a significant distinction between employment in a parking lot and a hospital parking garage. That he would consider such an option indicated to Dr. Jackson a significant cognitive distortion on the Respondent's behalf. Though alternative forms of employment, employment counseling and vocational training were offered to the Respondent, he did not avail himself of the opportunity to explore those options.

Dr. Jackson discussed with the Respondent the difference between hands-on and hands-off offending behavior. The Respondent drew a strong distinction between the two expressing his belief that his voyeuristic conduct did not harm those unaware of his predilection. Dr. Jackson sought to explain to the Respondent that his voyeuristic or hands-off offending was a significant component of what resulted in hands-on offending. [*10]

Dr. Jackson and the rest of the treatment team learned from the Respondent of the incident at the 14th Street market on November 9, 2010. This occurred subsequent to the Respondent's arrest. The Respondent informed his therapist that on the date of the incident he was trying to pick up a flyer when he was involved in an altercation with a woman over his cell phone. Though a bystander attempted to stop him, the Respondent ran away from the scene. When asked why he failed to disclose this information the Respondent stated that he did not believe the matter was serious at the time of the incident and that the sole basis for the woman pursuing the matter was that she had been informed that he was a sex offender.

Dr. Jackson testified that the Respondent demonstrated a tendency to attempt to control the manner in which others viewed him with a view towards creating a particular impression. This "impression management" in which the Respondent was engaging was made known to him by Dr. Jackson. The Respondent also engaged in more overt forms of deception with treatment providers. As examples of this, Dr. Jackson noted his failure to disclose masturbating in a public restroom, fabricating the true basis for being fired from his messenger job and lying about being owed a Metrocard.

In addition to expressing an interest in working in a parking garage, Dr. Jackson stated that the Respondent suggested other occupations, all of which afforded him the opportunity to be isolated and in the proximity of females. When other job opportunities like working in a restaurant or retail or construction, that in Dr. Jackson's opinion were more appropriate, were presented to the Respondent he was uncomfortable with those options.

On cross-examination of Dr. Jackson the Respondent introduced a series of quarterly progress reports prepared by the Shiloh Program in connection to the treatment provided to the Respondent. Exhibit B covered the period between September 28, 2009 and December 25, 2009; exhibit C covered from December 25, 2009 to March 25, 2010; exhibit D covered from March 25, 2010 to June 25, 2010; exhibit E covered from June 25, 2010 to September 25, 2010; and exhibit F covered from September 25, 2010 to November 10, 2010. The contents of these reports are summarized below. All of the reports, except one noted infra, rate the Respondent on seven treatment areas with a score of 1-5, with 1 being poor, 5 being excellent and 3 being satisfactory.

From September 28, 2009 to December 25, 2009 the Respondent attended 10 and 15 group and individual therapy sessions, respectively. He was excused for the one group session he did not attend. He was given 4 satisfactory ratings and 3 ratings of "2" (between satisfactory and poor). Areas of concern were the Respondent's resentment that the female friend he met on the subway was to be informed of his prior sex-related criminal history and his admissions that he had masturbated in the public restrooms of a bus station and public library. According to this report: "While P.H. has been working in treatment, at the same time he has still managed to demonstrate some features of manipulative behavior and secrecy that are troublesome and/or potentially dangerous"^[FN7].

From December 25, 2009 to March 25, 2010 the Respondent attended 12 and 21 group and individual sessions respectively. He was excused for the 2 group sessions he missed. He received 4 satisfactory ratings, 2 ratings of "4" (between satisfactory and excellent) and one [*11]rating of "2" (between satisfactory and poor). The Respondent reported no incidents of acting out (i.e. masturbating in public) and acknowledged that discussing his "early history" was painful yet productive. The Respondent expressed frustration that he was not romantically involved with anyone despite having met a couple of women and "impression management" was acknowledged by him to be a problem he needed to work on. He expressed great satisfaction in playing music both alone and in groups.

From March 25, 2010 to June 25, 2010 the Respondent attended 12 and 25 group and individual therapy sessions respectively. He was excused for the one group session he missed. He received uniform satisfactory ratings during this period. The Respondent described feeling like a contributing member of society based on his participation in a church group playing music. He also denied engaging in sexually deviant conduct during this period and discussed the measures taken by him to control his urges. Continued concern was expressed with the Respondent engaging in "impression management" to deal with his preoccupation of how he is perceived by others. However, it was also noted that the Respondent was aware of the importance of being honest and open in therapy and that he was willing to discuss uncomfortable issues. The report notes that P.H. had maintained social support through his relationship with his sister and a Bishop at the church he attended. It was reported that P.H. was "quite dedicated to his therapy".

From June 25, 2010 to September 25, 2010 the Respondent attended 8 and 19 group and individual treatment sessions respectively. He was excused for the one individual therapy session he missed, but not for the one group therapy session he missed. The numerical rating format for this report differs from the other six reports and contained 6 treatment areas in which the Respondent could be rated as either "unsatisfactory" or "satisfactory". He received 2 satisfactory ratings, 3 unsatisfactory ratings and one treatment area was left blank on the form. He denied any public masturbation during this period. The report expressed concern that the Respondent had made an untrue insinuation to one staff member that another staff member was lying. The Respondent's assertion that what occurred was a misunderstanding demonstrated his inability to take responsibility for his conduct - "a frequent feature of his interpersonal interactions". Also of concern was the Respondent's expression of interest in employment as a public parking garage attendant and his annoyance at being asked to prepare a written relapse prevention plan including his risk factors. The report said that:"A strength of P.H. is his willingness to delve into his thoughts, actions, and behaviors of his sexual deviences [SIC, misspelling in original] and learn from them".

From September 25, 2010 to November 10, 2010 the Respondent attended 6 and 12 group and individual treatment sessions. He received 6 poor (score of "1") ratings during this period and one satisfactory rating. The report stated that "[t]he escalation in his manipulative, misleading, criminal, and rule breaking thinking and behavior became evident to the treatment team." Specifically, reference was made to the Respondent's attempt to receive undue compensation by falsely claiming he was paying for his treatment and the loss of his job over a dispute with his employer over the previously mentioned Metrocard reimbursement where the Respondent asserted he was paying for travel out of his pocket and it became known that his sister was in fact paying for his Metrocard. P.H.'s habit of trying to control how other people see him was also noted as a problem. It was also noted that the Respondent was seeking [*12]employment in occupations where he could be alone with females including working as a parking garage attendant or as a taxi driver.

The Respondent also admitted to lying about his criminal history on a job application and revealed that he was arrested on November 9, 2010 for the incident at the 14th Street market. Due to the arrest the Respondent was suspended from the Shiloh Program. The Respondent described the details of the incident for which he was arrested. He said that he had placed his cell phone on top of his messenger bag so he could pick up a flier and the complainant grabbed his phone. He said that the complainant only pursued the allegations against him because she knew that he was a sex offender.

On cross-examination Dr. Jackson verified that she reviewed each of these reports. She also stated that the act of masturbation standing alone would be an insufficient reason upon which to base a SIST violation and that the Respondent was resistant to treatment in some ways, but not resistant in other ways.

Testimony of Dr. Kostas Katsavdakis

The State called psychologist Dr. Kostas Katsavdakis who testified to his educational background and training with respect to sex offender risk assessment. He said that he was familiar with proceedings conducted pursuant to MHL Article 10 and had performed 25 sex offender evaluations (14 for the State and 11 for Mental Hygiene Legal Services) under the statute. Dr. Katsavdakis was qualified as an expert in the field of psychology and the diagnostic assessment and evaluation of sex offenders.

Dr. Katsavdakis met with the Respondent and his attorney on December 16, 2010 for an agreed upon interview at Rikers Island which lasted approximately 3 ½ hours. The Respondent was informed that the interview was not confidential and signed a consent form to that effect prior to the interview. A written report (State's exhibit #4) was prepared by Dr. Katsavdakis subsequent to the interview. During his testimony, Dr. Katsavdakis outlined a number of information sources he had relied upon in reaching his conclusions.

Dr. Katsavdakis's understanding of the above-mentioned incident at the 14th Street market was that the Respondent was engaged in "upskirting" after which a confrontation ensued and the Respondent's cell phone was broken. Although Dr. Katsavdakis discussed this incident with the Respondent he did not review any transcripts of the complainant's testimony before this Court. Dr. Katsavdakis stated that the Respondent was hesitant to discuss the matter and provided no details of the incident. The Respondent indicated that he may have gotten too close to the complainant before she threw his phone.

Consistencies in arousal patterns with prior offenses was one item Dr. Katsavdakis stated he was looking for. Dr. Katsavdakis discussed two disclosures made by the Respondent to Dr. Katsavdakis concerning the Respondent's masturbation in the stalls of public restrooms. The Respondent informed the witness that he did not believe those two incidents violated the conditions of SIST. Dr. Katsavdakis considered the incidents of masturbation to be high-risk behaviors which reinforced the Respondent's voyeuristic and exhibitionistic conduct. Dr. Katsavdakis opined that in feeding his fantasies the Respondent was enhancing the likelihood that he would engage in voyeurism and exhibitionism in the future. It was also significant to Dr. Katsavdakis that the Respondent was counseled to refrain from engaging in this conduct because it let the Respondent know that he should not engage in such behavior. [*13]

Dr. Katsavdakis noted that the Respondent only disclosed the above-mentioned masturbation incidents during a pre-polygraph interview. The Respondent spoke favorably of the Shiloh program and Dr. Jackson and said that he had a good rapport with Parole Officer Ramirez. Dr. Katsavdakis said the Respondent received "mixed grades" from the Shiloh program and pointed out that this was the only time the Respondent had received out-patient sex offender treatment. Dr. Katsavdakis paraphrased the definition of a Dangerous Sex Offender Requiring Confinement (the determination at issue here) and Mental Abnormality as set forth in Article 10. Although he was not asked to determine whether the Respondent suffered from a Mental Abnormality under Article 10, he said that his conclusions were consistent with a finding that the Respondent suffered from a Mental Abnormality.

Dr. Katsavdakis opined that the Respondent is at a moderate to high risk to commit sex offenses were he to be released into the community. Dr. Katsavdakis examined several factors in reaching that conclusion, specifically: the pattern of the Respondent's behavior; his performance in sex offender treatment; evidence of sustained, stable relationships; his history of impulsivity; his history of non-contact, non-sex offenses; his history of sex offenses; his history of parole violations; and, his substance abuse history.

With respect to the first of these factors Dr. Katsavdakis stated that the Respondent demonstrated a history of exhibiting himself while viewing women to whom he was attracted. This attraction was usually triggered by viewing a women wearing tight clothing or the Respondent's viewing of a panty-line or underwear through a woman's clothing. Upon being attracted the Respondent would try to hide while masturbating. Dr. Katsavdakis stated that the Respondent was candid regarding the characteristics he admired in women which aroused him and noted that the type of clothing worn by his victims for offenses committed in 1979, 1980, 1981, 2003 and 2005 was of great importance to the Respondent. In light of the great detail with which the Respondent described what attracted him to his victims and that he had acted on his impulses for decades, Dr. Katsavdakis concluded that the Respondent is strongly predisposed to this arousal pattern.

Regarding his performance in sex offender treatment programs, Dr. Katsavdakis said that the Respondent had not successfully completed any such programs during the time he was in custody. The first formal sex offender program he had been enrolled in was the Shiloh program. Dr. Katsavdakis was not aware of any programs the Respondent may have participated in while in custody in New Jersey. Dr. Katsavdakis described the Respondent as a "non-completer" and indicated he would like to see more sustained success in treatment from the Respondent. The fact that at the time of the incident at the 14th Street market the Respondent was attending the Shiloh program, Dr. Katsavdakis opined, increased the likelihood that he would re-offend. Dr. Katsavdakis also said that the fact that the Respondent admitted to masturbating regularly in the mornings while participating in the Shiloh program was significant to Dr. Katsavdakis because, in his opinion, it reinforced the types of fantasies which enhanced the Respondent's risk for re-offense.

Dr. Katsavdakis discussed "triggers" or variables which might cause the Respondent to re-offend. He made a distinction between internal and external triggers. An example of an external trigger for the Respondent would be his observation of a woman wearing a tight dress. Regarding internal triggers, Dr. Katsavdakis stated that he had not spent enough time with the [*14]Respondent to explain what drives or prompts his behavior. Dr. Katsavdakis did not recall seeing a relapse prevention plan for the Respondent and stated that the failure to complete sex offender treatment increased the Respondent's risk of re-offense.

Regarding prior sustained, stable relationships Dr. Katsavdakis testified that the only one the Respondent engaged in was with a woman in the 1970s which ended due to the Respondent's infidelity and his arrest for public lewdness in 1979. This "intimacy deficit" was indicative of the Respondent's inability to attach to others in a healthy way. While being placed on SIST the Respondent sought to date a woman he had met, but was not sexually intimate with her. The Respondent's failure to establish sustained relationships, Dr. Katsavdakis opined, increased the risk that he would commit a sex offense if released.

However, on cross-examination Dr. Katsavdakis acknowledged that the Respondent communicated in treatment his desire to have a relationship with a woman. The Respondent indicated that it was difficult for him to establish such a relationship in light of the SIST condition requiring that he notify any prospective partners of his prior offending history. He expressed resentment of this during the early portion of his treatment.

Dr. Katsavdakis noted that with respect to acting impulsively the Respondent had a significant history of engaging in conduct without thinking of the consequences of his behavior placing him at risk of re-offense. Throughout his life he has demonstrated an inability to cease engaging in conduct destructive to himself and his relationships. He has lost his freedom and employment on several occasions while aware of the repercussions for engaging in offending conduct. For example, he re-offended committing a sex crime a short time after he had been released from custody and placed on parole supervision. The incident that took place at the 14th Street market occurred on the same day merely hours after he had met with his parole officer.

With respect to non-sex-related offenses committed by the Respondent, Dr. Katsavdakis stated that the Respondent had been convicted of theft-related offenses as well as trespass-related offenses. This would increase his risk to re-offend based on literature Dr. Katsavdakis relied upon. However, Dr. Katsavdakis also indicated that there was no indication of the Respondent committing theft or trespass-related offenses since 1993. Dr. Katsavdakis said that the Respondent had 12 sex offense arrests or infractions committed either while in custody or at liberty in the community. He said that the higher the number of violations the greater the likelihood that the Respondent would re-offend.

With respect to parole violations Dr. Katsavdakis said that there was empirical support establishing violations of parole supervision as a predictive factor with respect to risk of re-offense and that this risk increased as the number of violations increased. He testified that the Respondent was in fact violated in July of both 2003 and 2005 for convictions on unrelated matters. The July 2003 incident occurred less than one month after the Respondent's release from custody and involved the Respondent masturbating in public. The 2005 incident occurred 11 months after the Respondent was released from custody and also involved public masturbation.

The final factor examined by Dr. Katsavdakis was substance abuse. The Respondent acknowledged having primarily been a cocaine user throughout the 1980's up to 1993. He had also smoked marijuana as a teenager. Generally, drug use is associated with increased likelihood of re-offense, however, the Respondent here indicated he had remained abstinent since his arrest [*15]on the 1993 offense. On cross-examination Dr. Katsavdakis stated that the Respondent's drug abuse was in sustained full remission and that from urinalysis tests it appeared as though the Respondent had not used drugs or alcohol since 1993. Further, the Shiloh program notes did not indicate any substance-abuse-related concerns.

The Respondent's use of his cell phone to "upskirt" his victim reflected what Dr. Katsavdakis termed a "change of modality" for the Respondent because in the past he had not used photographic or recording devices with any of his victims. This may indicate that the Respondent is "escalating" or putting himself in positions physically closer to his victims. Dr. Katsavdakis noted that the use of such devices enabled the Respondent to save material which he could later load to a computer file to observe, or of greater concern to the victim, place on the Internet. Additionally, Dr. Katsavdakis stated that the Respondent met the diagnostic criteria for both voyeurism and exhibitionism.

Dr. Katsavdakis stated that there existed "protective factors" or variables considered by him which lowered the likelihood that the Respondent would re-offend. He specifically identified the Respondent's age, cessation of drug use and that he was aware of only one contact offense having been committed by the Respondent as mitigating factors which were considered by him in reaching his conclusion. Regarding age, Dr. Katsavdakis stated that once men reach the age of 40 the likelihood for sexual re-offense drops. An individual who continues to offend as he ages is an exception to this general rule. At the time of the offense at the 14th Street market the Respondent was 55 years old.

Dr. Katsavdakis said that he used two actuarial assessment instruments in conducting his evaluation: the SVR (Sexual Violent Risk) 20 and the Hare Psychopathy Checklist Revised, 2nd edition. The SVR 20 reliably incorporates static and dynamic factors to aid in assessing risk of sexual re-offense in the community. The factors outlined above which were considered by Dr. Katsavdakis are included in the instrument. Some other factors included in the instrument were not relevant to Dr. Katsavdakis's evaluation here. The Respondent received a score of 18 on the Hare Psychopathy Checklist, which Dr. Katsavdakis said indicated a mitigating or lower likelihood of re-offense. Dr. Katsavdakis did not use the Static 99 or Static 99R actuarial instrument here because less than 10* of individuals in the samples of those instruments committed both contact and non-contact offenses like the Respondent.

When asked on cross-examination to define the term "sex offense" Dr. Katsavdakis stated that it encompassed many things diagnostically including exposing oneself. With respect to MHL Article 10 Dr. Katsavdakis stated that it was his understanding that a sex offense could include lewd conduct, though he was unable to define lewd conduct or state whether it is a misdemeanor or felony offense. Regarding the sex offense for which the Respondent was convicted in 1994 the Respondent admitted that he had been high on crack, homeless and made money by stealing at the time. Dr. Katsavdakis reiterated that the Respondent stated that he had not used drugs since that incident.

Dr. Katsavdakis also listed as a protective factor that the Respondent acknowledged masturbating in public on several other occasions aside from those for which he was apprehended. The Respondent did this despite expressing concern over making admissions regarding the open case stemming from the 14th Street market incident. Dr. Katsavdakis stated that the Respondent did not minimize or deny his offending behavior and that he was direct in [*16]responding to questions concerning his sexually inappropriate or unlawful conduct.

Dr. Katsavdakis stated that there was no evidence that the Respondent had engaged in inappropriate sexual behavior from an early age. This was relevant because half of those individuals who demonstrate such behavior prior to age of 12 have a 50% chance of continuing to engage in such behavior into adulthood.

In a colloquy with the Court, Dr. Katsavdakis said that when he spoke during his testimony about sex offenses and the Respondent's risk to commit such offenses he included in the definition of a sex offense public masturbation. He said that he was not aware of whether or not such public masturbation was defined as a sex offense under Article 10. He also said that he did not know whether or not New York State had a law which criminalized "upskirting" [the type of conduct the Respondent was accused of perpetrating during the 14th Street market incident]. He said that most states did not have laws which criminalized such conduct.

He said that the risk of the Respondent committing a contact or attempted contact offense was "moderate". He said that the fact that the Respondent had committed both contact and voyeurism or exhibitionism offenses in the past increased his likelihood to re-offend. In response to the question of whether the Respondent was likely to engage in an attempted contact offense if not confined, Dr. Katsavdakis said he could not give a "yes or no" answer to that question because it would depend on a number of variables including drug use and supervision requirements.^[FN8]

Dr. Katsavdakis went on to state that he was not sure what specific enhanced supervisory provisions could be implemented were the Respondent not to be confined. He said that monitoring him with an ankle bracelet could not guarantee that the Respondent would not re-offend and noted that, referring to the incident at the 14th Street market, the Respondent had engaged in offending conduct only hours after he had met with his parole officer with whom he had a good relationship. Although he was uncertain, Dr. Katsavdakis stated that he believed the crime of a Sexually Motivated Felony in New York involved the commission of a crime that in whole or substantial part was committed for a sexually motivated reason.

Testimony of Dr. Joe Scroppo

Dr. Joe Scroppo, a psychologist, testified for the Respondent. He was qualified as an expert in psychology and forensic psychology and said that he had performed between 25 and 30 Article 10 evaluations. Dr. Scroppo evaluated the Respondent and stated that, in his opinion, the Respondent did not meet the requisite criteria to be considered a Dangerous Sex Offender [in Need of Confinement] pursuant to Article 10. A significant factor in reaching this conclusion was Dr. Scroppo's belief that, to the extent the Respondent might commit a future offense, the likelihood was that it would be a non-contact offense. He added that the chances of the Respondent committing a contact offense, as required by the statute, are low.

Dr. Scroppo's opinion was informed by examining the Respondent's records and a 4 ½ hour interview he conducted of the Respondent during which psychological testing was conducted, as well as a review of reports prepared by others who had evaluated the Respondent. Dr. Scroppo then prepared his own report, dated February 6, 2011. Dr. Scroppo's review of the Respondent's records indicated that he had been convicted of a felony sex offense on one [*17]occasion, a felony non-sex offense on one occasion and several misdemeanor sex and non-sex offenses on several occasions. Dr. Scroppo found the Respondent to be forthcoming in his discussions with others concerning exhibitionistic and voyeuristic conduct he had engaged in for which he had not been arrested.

In analyzing the Respondent's 1994 conviction [for attempted rape, sexual abuse and burglary] Dr. Scroppo stated that the combination of the Respondent being addicted to drugs, being homeless and lacking any supervision played a large role in precipitating the conduct underlying the conviction. Dr. Scroppo differentiated between static risk factors, those historical variables which cannot be changed once they exist, and dynamic risk factors, which may vary over time and are subject to being influenced by treatment or other events. Dr. Scroppo used an instrument called the STABLE 2007 in his evaluation. This instrument summarizes several factors relevant to assessing dynamic changes.

One such factor identified by Dr. Scroppo was social support. Dr. Scroppo testified that greater social support reduced the risk of recidivism. He described the level of support available to the Respondent as reasonable, noting that the Respondent regularly meets with family members and that his family members are productive members of the community which results in their being a positive influence on him. Dr. Scroppo also examined the Respondent's problem solving ability, which he described as "pretty good". He mentioned the Respondent's demonstrated ability to obtain employment, move out of a shelter and into his own apartment, attend treatment sessions and keep his scheduled parole appointments. A third variable examined by Dr. Scroppo was the Respondent's ability to socialize with members of society other than family members. Again, Dr. Scroppo stated that the Respondent did reasonably well on this score, despite maintaining some voyeuristic tendencies. He described the Respondent's voyeurism as "part of his make-up" and something which he continues to struggle with, but viewed favorably the Respondent's acknowledgment that this was an issue with which he was struggling.

Dr. Scroppo stated that the Respondent was having difficulty forming a stable on-going intimate relationship, but that he was making efforts to improve in this area. Although the Respondent had dated several women, Dr. Scroppo noted the difficulty of succeeding in establishing such a relationship in light of the conditions imposed by SIST. Another variable favorably examined by Dr. Scroppo was impulsivity. Specifically, Dr. Scroppo stated that the Respondent generally appears where he is expected or required in timely fashion (i.e. treatment classes, work and parole appointments). The Respondent also pays his bills on time and does not get into fights. When asked about the incident at the 14th Street market and Dr. Katsavdakis's assessment of the incident as an example of the Respondent acting on impulse, Dr. Scroppo said that the Respondent could not be judged by only one incident and that it was appropriate to evaluate this variable by looking at the Respondent's conduct throughout his life.

When asked about the Respondent's admitted masturbation in a public stall Dr. Scroppo characterized the Respondent's actions as a lapse in judgment. Dr. Scroppo viewed the fact that the Respondent went into the bathroom stall as somewhat of a mitigating factor in that the Respondent could have conducted himself with greater impropriety by, for example, choosing to masturbate more publicly. This suggested to Dr. Scroppo that the Respondent maintained some impulse control. Dr. Scroppo testified that the Respondent informed him that he had been aware [*18]of the ability of his cell phone to take pictures for approximately one week prior to the incident at the 14th Street market and that he had been tempted to use the phone in a voyeuristic fashion. Upon later learning of the phone's video recording capability he felt that he could engage in voyeurism in a more impersonal way. The Respondent unfortunately acted on those impulses. Dr. Scroppo further stated that the Respondent's description of the incident at the 14th Street market closely mirrored what he had read in the records provided to him.

When asked whether the Respondent would receive better treatment in a secure facility Dr. Scroppo stated that the focus of his evaluation was to assess whether the legal criteria for the Respondent's confinement had been met. He stated that he did not believe the law justified placing the Respondent in a secure treatment facility. Regarding the Respondent's progress in the Shiloh program Dr. Scroppo said that much like any program attempting to change fundamental human behavior the Respondent experienced ups and downs in this program. The Respondent said to Dr. Scroppo that the most significant problem he faced in treatment was being more open about his urges.

On the issue of substance abuse Dr. Scroppo testified, consistently with the other evidence adduced at the hearing, that although the Respondent had serious substance abuse issues in the past, he appeared to have no relapses since his commission of the 1993 felony. The Respondent expressed to Dr. Scroppo that the damage caused by substance abuse is too great to risk going back to it. Triggers that the Respondent identified to Dr. Scroppo were, with summer approaching, his observations of women being more scantily clad and his failure to have an intimate relationship. Dr. Scroppo said that the Respondent was attempting to resolve these issues.

Although Dr. Scroppo acknowledged that the Respondent struggles with his fantasies and controlling his behavior, he disagreed with Dr. Katsavdakis in that he did not believe the Respondent's issues were closely linked to the possibility of his committing a contact offense. Dr. Scroppo also disagreed with the Division of Parole's assessment that the Respondent's SIST status should be revoked, noting that he did not see evidence of the Respondent's depression and financial difficulties which were cited in support of the Division of Parole's recommendation. When asked about the failure of the Respondent to timely disclose the incident underlying his violation here Dr. Scroppo stated that this was a significant issue which the Respondent needed to work on, but that it did not change his view that, to the extent the Respondent was inclined to engage in future impropriety, he would be predisposed to committing voyeuristic, non-contact offenses. Dr. Scroppo stated that the Respondent's deviant sexual urges did not render it more likely that he was predisposed to committing contact sex offenses. The reason for this is that the focus of the Respondent's deviant behavior involves the capturing of images of unsuspecting women dressed in a manner appealing to him.

On cross-examination Dr. Scroppo stated that during his interview of the Respondent he conducted a personality assessment inventory to measure his psychological functioning. Among the variables considered in its preparation are drug abuse, stress factors, personality characteristics and interpersonal abilities. Dr. Scroppo stated that the characteristics in the inventory were derived from an examination of individuals composing normative groups in a variety of settings including individuals in the community, in treatment and in custody. Although at the time of his evaluation the Respondent was housed in a correctional setting, Dr. Scroppo [*19]explained that he did not believe this compelled the use of correctional norms because the Respondent was not in custody serving a prison sentence.

As part of this test the Respondent portrayed himself as being relatively free of shortcomings. With respect to the impression management component of the test, Dr. Scroppo found that although the Respondent accentuated his positive characteristics and minimized the negatives, there was no indication of a conscious attempt to hide information. Dr. Scroppo did state, however, that the Respondent admitted to not being honest with respect to statements he made to Dr. Field and that treatment records he reviewed indicated that the Respondent had been dishonest concerning Medicaid reimbursement.

Dr. Scroppo acknowledged that research supports the notion that the inability to sustain an intimate relationship or an "intimacy deficit" is associated with a higher risk for sexual recidivism. He was unwilling to go so far as to say that it was linked to persistent sexual re-offending. He further acknowledged that commonly accepted research showed intimacy deficits to be a relevant factor associated "at some level" with sexual recidivism. The degree to which failure to have an intimate relationship impacted recidivism, in Dr. Scroppo's view, was small to moderate.

When confronted with the assertion that the Respondent had not been faithful to his one intimate partner, Dr. Scroppo stated that the relevant standard for determining whether an individual was able to form a lasting relationship did not require a flawless or monogamous relationship. He rejected the notion that infidelity demonstrated an inability to maintain an intimate relationship. Dr. Scroppo did not discuss with the Respondent his one 2 ½ year intimate relationship. Dr. Scroppo found the Respondent's frustration at being required to notify potential mates of his sexual offending history understandable. He did not view it as an attempt on the part of the Respondent to maintain secrecy, but rather said that in a human context it was understandable why anyone would not want to reveal to a date that he was a convicted sex offender. Dr. Scroppo noted that the Respondent did in fact reveal to a woman he was interested in that he had sexually offended in the past.

Dr. Scroppo agreed that research from 2004 indicated that loneliness was associated as a low to moderate variable in predicting sexual offense recidivism and that further study was necessary to determine whether it is indeed a relevant factor. The same research indicated that paraphilias are also associated with a greater likelihood of sexual offense recidivism. However, Dr. Scroppo stated that engaging in, for example, exhibitionism might not be viewed as having as strong a co-relation to recidivism as, for example, child molestation. Dr. Scroppo was questioned regarding his use of remorse or empathy for the victim as a risk factor. He stated that in his interview he asked the Respondent to describe from his perspective what he believed the Respondent's victims were experiencing when the Respondent was victimizing them. The Respondent was able to articulate what Dr. Scroppo opined was a realistic account of what was probably experienced by the Respondent's victims.

Although it was Dr. Scroppo's impression that the incident between the Respondent and the 14th Street market victim was a chance encounter, he could not say definitively whether the Respondent may have in fact been stalking the victim. The fact that the Respondent admitted to Dr. Scroppo that he was struggling with engaging in voyeuristic behavior did not establish, in Dr. Scroppo's opinion, that the Respondent had serious difficulty in controlling his behavior. [*20]Similarly, the fact that the Respondent indicated he struggled with up-skirting unsuspecting women did not lead Dr. Scroppo to conclude that he was strongly predisposed to commit a sex offense.

In discussing the dangerousness of the Respondent as it related to the incident at the 14th Street market Dr. Scroppo said it was important to distinguish between general harm, like the injuries suffered by the complainant during the scuffle, and harm resulting from the intentional commission of a contact sex offense contemplated by Article 10. In reconciling the Respondent's statements to Dr. Scroppo that he had a good relationship with his parole officer with those indicating that he failed to disclose his violating conduct for fear that his parole officer would curtail his freedom, Dr. Scroppo said that the Respondent could maintain a good relationship in many ways with his parole officer yet still be reluctant to share his misbehavior.

With respect to addressing the Respondent's difficulty in managing how he reacted to women he found attractive, the Respondent stated that he should avoid crowds and areas where women were likely to congregate. Dr. Scroppo said that the Respondent occasionally masturbated to images from past voyeuristic experiences. In addition to assessing dynamic factors, Dr. Scroppo testified that he also administered the STATIC 99R, which he described as a risk analysis incorporating the Respondent's entire history. When asked on re-direct examination whether he was aware of any literature purporting to co-relate non-contact sex offenders to contact sex offenders, Dr. Scroppo identified a 2006 study by Firestone, but could not attribute weight to it because of the small sample size used in conducting the study.

Credibility Determinations Regarding Witnesses

The Court found the testimony of the complainant, Ms. Smith, to be credible. Moreover, the Court believed that Ms. Smith accurately surmised that the Respondent placed his cell phone under her skirt for the purpose of recording her sexual or intimate parts on August 11, 2010. The Court found that the remaining witnesses testified truthfully. The Court did not agree with all of the conclusions these witnesses arrived at, as discussed in more detail infra.

CONCLUSIONS OF LAW

Under Article 10, a respondent who has been placed on SIST may have those SIST conditions revoked and be subject to confinement if specific procedural steps are followed and particular findings are made. Here, the State properly followed the requisite procedures for moving to subject the Respondent to confinement.

In order to revoke a respondent's SIST conditions and confine the respondent, the Court must determine that the respondent is a "dangerous sex offender requiring confinement in accordance with the standards set forth in subdivision (f) of section 10. 07 [of Article 10]". MHL § 10.11 (d) (3). The underlying standard is as follows:

If the court finds by clear and convincing evidence that the respondent has a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility, then the court shall find the respondent to be a dangerous sex offender requiring confinement. . . . In making a finding of disposition, the court shall consider the conditions that would be imposed upon the respondent if subject to a regimen of strict and intensive supervision, and all available information about the prospects for the respondent's possible re-entry into the [*21]community" MHL § 10.07 (f).

A number of other definitions from Article 10 and the Penal Law are also directly relevant to the question here. The first is Article 10's definition of a "sex offense", the operative definition under the substantive standard outlined here. A crime is a "sex offense" under Article 10 if it falls within one of two specific offense categories. The first are a listing of specific sexual offense felonies. The second are a list of specific non-sexual offense felonies which are defined as "Designated Felonies" under the statute, if such Designated Felonies are "sexually motivated". See MHL §§ 10.03 (p) & (f). A "sexually motivated" felony "means that the act or acts constituting a designated felony were committed in whole or in substantial part for the purpose of direct sexual gratification of the actor". MHL § 10.03 (s).

As this Court outlined in its decision in P.H., public masturbation of the kind the Respondent has repeatedly engaged in is the crime of "Public Lewdness" defined in § 245 of the Penal law. That crime is a Class B misdemeanor and is not defined as a "sex offense" under Article 10. The act of intentionally placing a camera under a victim's skirt and secretly recording a victim's sexual or intimate parts, however, is a Class E felony. It is the crime of Unlawful Surveillance in the Second Degree under Penal Law § 250.45 (4). The Respondent was not charged with this crime or an attempt to commit this crime in connection with the August 11, 2010 incident and the Court does not know why the district attorney's office did not charge him with either of those crimes. However, the testimony of the victim at the hearing in this case, in the Court's view, clearly indicated that the Respondent at least attempted to commit this crime.^[FN9]

Unlawful Surveillance in the Second Degree, however, although a felony is not a "sex offense" under Article 10. The attempt to commit this crime, as noted immediately supra, is a Class A misdemeanor and is also not defined as a sex offense under Article 10. Further, the crime of Assault in the Third Degree (the crime the Respondent was charged with committing on August 11) is not defined as a sex offense under the statute, even if that crime is sexually motivated. In short, neither public masturbation, voyeurism, Unlawful Surveillance in the Second Degree, Attempted Unlawful Surveillance in the Second Degree nor Assault in the Third Degree are defined as sex offenses under Article 10. Thus, even if this Court were to find that the Respondent was likely to engage in any of these offenses, that finding would not allow this Court to revoke the Respondent's SIST conditions and subject him to confinement. That is not, in any respect, a value judgment about how heinous such crimes are. Indeed, as this Court noted [*22]in P.H., public masturbation and crimes involving voyeurism can cause great harm to their victims. See P.H., n. 20. Those crimes are simply not defined as sex offenses under Article 10.

Under the statute, in order to revoke the Respondent's SIST conditions and subject him to confinement, this Court would have to find by clear and convincing evidence, inter alia, that the Respondent was likely to engage in a sex offense under the statute unless he were confined. The Court would have to find, in other words, that the Respondent was likely to engage in the kind of contact sexual offense he last engaged in 18 years ago or alternatively that he was likely to commit a non sexual offense felony which was "sexually motivated" pursuant to the statute.

The State offers a creative argument for why the Respondent on August 11th did, indeed, commit a sex offense under Article 10 and can therefore, on that basis, be found likely to engage in that same kind of sex offense in the future if not confined. The argument is that, although the Respondent was not charged with such a crime, the Respondent did, in fact, on August 11th, 2010, commit the crime of Assault in the Second Degree pursuant to Penal Law § 120.05 (6) and committed that crime with a sexual motivation. Assault in the Second Degree is a "Designated Felony" under Article 10 and if sexually motivated is defined as a sex offense under the statute. The relevant subdivision the State points to provides that the crime is committed when "[i]n the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in article one hundred thirty which requires corroboration for conviction, or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of the participants". The State posits that the Respondent caused physical injury to the victim during the course of committing or attempting to commit the felony of Unlawful Surveillance in the Second Degree. The State further argues that this Unlawful Surveillance crime was sexually motivated. Hence, the Respondent committed the crime of Assault in the Second Degree as a sexually motivated crime. Since that crime was committed on SIST, it would provide a basis for this Court to determine that the Respondent was likely to commit such a crime in the future if not confined.

The Respondent, as noted supra, was not charged with Assault in the Second Degree. The Court agrees with the State that there was evidence at the hearing that he did, indeed, commit that crime however. That is, an inference could be drawn from the victim's testimony that the Respondent attempted to commit the crime of Unlawful Surveillance in the Second Degree and in the course of that crime or in the immediate flight therefrom caused physical injury to the victim. The Court cannot agree however, that this crime, assuming it was committed by the Respondent, meets the definition of a "Sexually Motivated Felony" as that term is defined under Article 10.

The Unlawful Surveillance aspect of this crime, in the Court's view, can certainly be said to have been "sexually motivated". If the Respondent was indeed seeking to take a picture or make a videotape of the sexual or intimate parts of the victim inside of her clothing that act can certainly be described as having been "committed in whole or in substantial part for the purpose of direct sexual gratification of the actor."

There is no evidence that the injury which was caused to the victim was sexually motivated however. The injury occurred during a struggle between the Respondent and the victim over the Respondent's cell phone battery. The evidence at the hearing clearly indicated that the Respondent's motivation during his struggle with the victim, in the Court's view, was to [*23]get the shattered pieces of his phone back. The sexual motivation definition cited supra requires that the "act or acts constituting a designated felony" were committed in whole or in substantial part for the purpose of direct sexual gratification. That language, in the Court's view, by using the terms "act or acts constituting" connotes that all of the essential acts necessary to commit a crime were committed in whole or in substantial part for the purpose of direct sexual gratification. For example, an offender who unlawfully enters a home to commit a sexual assault (and also to steal property) has a sexual motivation to commit a burglary. An offender who assaults a victim for the purpose of disabling that victim so the victim can be sexually assaulted will commit that assault for the purpose of direct sexual gratification.

When the Respondent and the victim fought over the Respondent's cell phone battery and the victim fell and was injured, the Respondent was not assaulting the victim for the purpose of direct sexual gratification as required by Article 10. That is not to mitigate the seriousness of what the Respondent did. It is simply to point out that, at least in the Court's view, that conduct does not fall within the plain meaning of the Article 10 statute. Of course, the assault statute at issue here does not require any mens rea for the causing of a physical injury. The crime occurs when such an injury is caused, with any mental state, in the course of the commission of another felony. A Designated Felony under Article 10, however, requires a specific mental state, the mental state of sexual motivation. That motivation existed for the underlying felony or attempted felony (the unlawful surveillance crime) but did not exist for the physical injury. In requiring the "acts or acts constituting" a felony to be motivated by a desire for direct sexual gratification, in the Court's view, the Legislature did not create a statute which would allow a sexually motivated felony crime to be found where a respondent's motivation in causing an injury was to recover one of the broken pieces of a cell phone.

Even if the Respondent did, arguably, commit that crime, the ultimate question here is not whether this crime was committed. The issue is whether the Respondent would be likely to commit such a crime in the future. There is certainly evidence of the Respondent's predisposition to commit and his serious difficulty in controlling his behavior with respect to engaging in exhibitionism and voyeurism. What is much less clear is whether the Respondent would be likely to again commit the precise kind of crime like which occurred here - a struggle over a cell phone battery which resulted in a victim's physical injury - were he again released into the community. Indeed, as outlined infra, one of the common-sense modifications to the Respondent's SIST regimen which the Court will require in this case is that he be prohibited from possessing a cell phone with any photographic or video-recording capability in the future.

The Court, again, is not making a value judgment about the seriousness of the Respondent's conduct. The Court does not know why the Respondent was not charged with additional crimes in this case. Based on the testimony of the complainant, it appears that the Respondent could have been charged with both the Class A misdemeanor of Attempted Unlawful Surveillance in the Second Degree and the Class D violent felony of Assault in the Second Degree.^[FN10] But this Court is not empowered to rewrite the provisions of Article 10 nor does it [*24]determine how the district attorney's office prosecutes alleged criminal offenses. In subjecting certain sex offenders to possible confinement for life, the Legislature was precise in defining the kinds of behaviors which might qualify for such treatment. The crimes which this Court believes the Respondent committed on August 11, 2010 are simply not covered by the statute.

The question here is whether clear and convincing evidence exists that, inter alia, the Respondent is likely to commit a "sex offense" as defined by Article 10 if he is not confined in a Secure Treatment Facility. Clear and convincing evidence, is evidence requiring a "high degree of probability" that the requisite standard has been met. It is not enough to find that it is "more likely than not" that the Respondent meets the requisite criteria. This Court must be satisfied that it is "highly probable" that the Respondent will commit the kinds of "hands-on" sexual crime which qualifies as a "sex offense" under Article 10 if he is not confined or, alternatively, that he will commit some other "Designated Felony" with a sexual motivation if such confinement is not imposed.^[FN11]

On that basic question, this Court agrees with the opinions which were expressed by the New York State Office of Mental Health psychologist, Dr. Field and the opinion of Dr. Scroppo that the Respondent does not meet the criteria necessary for finding that he is a Dangerous Sex Offender Requiring Confinement. As Dr. Field noted, the last and only time the Respondent committed a sexual contact offense under the statute was 18 years ago. That offense was aggravated by his cocaine use and homelessness at the time, both of which are no longer present. He was at liberty in the community for over a year between September of 2009 and November of 2010 with no evidence that he had committed any such offense. Dr. Field said that a recent study had found that less than 10% of persons who engaged in exhibitionism and voyeurism escalated to hands-on offenses. Dr. Scroppo during his testimony repeatedly made clear that he was not offering a favorable prognosis of the likelihood that the Respondent would not commit further acts of exhibitionism or voyeurism if not confined. He also simply said that the Respondent did not meet the criteria required by the statute. There is clearly no basis, in the Court's view, given this record to conclude that it is "highly probable" that the Respondent will engage in a sex offense like the Attempted Rape he was convicted of in 1993 if he is placed back on a regimen of Strict and Intensive Supervision and Treatment.

There is also clearly no basis to believe that he would be likely to commit a "Designated Felony" which was "Sexually Motivated" under the statute if he were not confined. Such a prediction would require a finding that the Respondent was highly likely to commit a felony like robbery, burglary, arson or homicide, for the purpose of direct sexual gratification if he were again released into the community. There is no basis in this record to make such a prediction. [*25]As Dr. Field and Dr. Scroppo both testified, the behaviors the Respondent is most at risk to commit are the kinds of exhibitionistic and voyeuristic crimes he has committed in the past.

Dr. Katsavdakis did opine that the Respondent was at a moderate to high risk to commit an additional sex offense if not confined. It was obvious at the hearing, however, that although Dr. Katsavdakis was well-informed on the psychiatric issues he was qualified as an expert to discuss, he was not aware of how the term "sex offense" is defined under Article 10. He testified that he did not know if public lewdness was defined as a sex offense under Article 10 (it is not). He said that he did not know whether the kind of "upskirting" offense the Respondent attempted to commit in this case was even a crime under New York law (it is in fact a Class E felony, but is also not defined as a sex offense under Article 10). He said that in describing the Respondent's predisposition to commit sex offenses and whether he would be likely to commit such offenses if not confined, he was using the term "sex offense" as including public lewdness.

When asked by the Court whether the Respondent would be likely to commit the kind of "hands on" sex offenses which are defined as sex crimes under Article 10 if he were not confined, Dr. Katsavdakis said that he could not provide a "yes or no" answer to that question. He said that the Respondent was at a moderate risk to commit such an offense. That is obviously insufficient to constitute the "highly probable" evidence of the likelihood of such behavior which is indisputably required by the statute. In sum, even were this Court to consider only the opinion of Dr. Katsavdakis, the sole witness presented by the State who was able to opine that the Respondent is a Dangerous Sex Offender Requiring Confinement, that opinion would be plainly insufficient to meet the State's burden in this case.

In its probable cause finding, this Court held that the Respondent's pattern of exhibitionism and voyeurism and the fact that his one "hands-on" offense had arisen from those crimes provided probable cause to believe such an escalation would occur again if the Respondent were not subject to civil management. There are at least five significant differences between this Court's earlier finding in that regard and the question at issue here.

First, this Court's earlier ruling found only probable cause to believe the Respondent suffered from a Mental Abnormality, rather than the significantly higher clear and convincing evidence standard necessary here. Second, that determination concerned a different question. This Court's probable cause determination concerned whether the Respondent suffered from a Mental Abnormality under the law, a determination which was concerned as much with the Respondent's psychiatric condition as with his difficulty in controlling his sexually offending behavior. Here, the Court must determine whether the Respondent's predisposition and difficulty in controlling behavior is so strong that it is likely he will commit a sex offense under the statute if not confined. The question here is in large part an empirical one: will the Respondent commit a sex offense as defined by Article 10 if he is again placed on Strict and Intensive Supervision and Treatment.

Third, a finding here that the Respondent is not a Dangerous Sex Offender Requiring Confinement will not result in the Respondent's release from civil management. In fact, as outlined infra, it is this Court's view that even more extensive conditions than were imposed on the Respondent previously should be imposed on the Respondent when he is returned to SIST. Fourth, there is now real-world evidence of how the Respondent has behaved in the community for the most recent 14 months he has been at liberty. There is no evidence that the Respondent [*26]has committed an offense covered under the provisions of Article 10 during that period. Finally, more than two years have passed since this Court's probable cause determination. The Respondent is two years further away from having committed the one offense which resulted in his coverage under the SOMTA statute and two years further away from the active cocaine addiction which was a significant contributing factor to that crime. He is also two years older, a factor which also clearly serves to mitigate his risk of committing an additional sex crime.

That is not to say that a future act of exhibitionism or voyeurism by the Respondent would not result in a finding that the Respondent was a Dangerous Sex Offender Requiring Confinement. Were the Respondent to be found to engage in any criminal conduct in the future, this might well again be sufficient to confine him pending a hearing as was done in this case. This Court might well reach a different conclusion than it has reached in deciding the instant petition if any such incident arose in the future. In this regard, Dr. Katsavdakis made what the Court considered to be a highly relevant point: that the incident on August 11, 2010 indicated a possible escalation in the Respondent's offending behavior in that he had never been previously known to attempt to record any images of his victims as part of his voyeuristic activities.

Clearly, the Respondent's progress on SIST has been mixed. In treatment, Dr. Field opined, he has been a "C" student. There are positive aspects to the life the Respondent led while in the community, including the fact that he had a full-time job, had an apartment, had social support and attended virtually all of his scheduled treatment sessions and parole appointments. On the other hand, he committed a serious crime, engaged in deceptive conduct, has lacked insight into aspects of his offense cycle and continued to engage in some of the same kinds of destructive behaviors which have characterized his criminal career. The Respondent committed his crime while he was under close supervision. Moreover, it is obvious that fundamental aspects of his external triggers (like being in public places where women are present) simply cannot be avoided by anyone who is at liberty in the City of New York.

The Court does believe that some additional supervision conditions would be useful. The New York State Department of Corrections and Community Supervision ("DOCCS"), which again will be responsible for supervising the Respondent on a daily basis, is in the best position to determine the precise conditions the Respondent should be subjected to and this Court does not believe it is appropriate to attempt to micro-manage the manner in which DOCCS fulfills its very challenging responsibilities.^[FN12] The Court does believe that some modifications in the Respondent's SIST conditions should be made, however.

As Dr. Field recommended, the Respondent should be prohibited from keeping a cell phone which has any photographic or video-recording capabilities. His possession of such a phone clearly and predictably facilitated his August 11, 2010 crime. The Court understands why DOCCS would like the Respondent to keep a cell phone to aid in their supervision, but it should [*27]be possible to have the Respondent obtain a phone without video or photographic capability. As Dr. Field also recommended, additional polygraph examinations might also be helpful. The Respondent revealed his masturbation in the stalls of two public bathrooms in response to a pre-polygraph interview. Given the Respondent's history of deception, in the Court's view, any steps requiring him to be more forthcoming about his conduct would be useful.

Respondent's counsel, Mr. Graham, during argument on this motion also made what the Court considered an additional constructive suggestion. This was the recommendation that the Respondent attempt to obtain a job which did not require him to constantly travel in public places, like the messenger job he had during his SIST placement. Obviously, given the Respondent's external triggers, having him spend his working days traveling on the streets and in subways of New York City is not optimal. Indeed, as is true with respect to the use of his cell phone camera, he apparently committed his August 11, 2010 crime while traveling around the City as a messenger. The Court understands how difficult it may be for the Respondent to find employment and there are clearly occupations he should not engage in (like a parking lot attendant or a taxi driver). In the Court's view, however, employment as a messenger is also not the best occupation for the Respondent at the current time.

The Court also intends to schedule regular appearances for the Respondent before this Court to coincide with his regularly scheduled 3 month progress reports provided by DOCCS. At these appearances, the Court intends to review the Respondent's progress under SIST and discuss any possible modifications to enhance compliance. None of these steps would eliminate the risk that the Respondent would commit another crime. But, in the Court's view, all of these steps could clearly mitigate that risk.

As noted supra, the Legislature has not defined the kinds of exhibitionistic and voyeuristic crimes the Respondent in this case is most at risk of committing as "sex offenses" under Article 10. Even putting that issue aside, however, this case highlights what the Court believes is a significant gap in the Article 10 statute which deserves legislative scrutiny. The SOMTA statute does not allow for any sanction to be imposed on a respondent for the violation of a SIST condition. A respondent who violates SIST may be confined pending a hearing (as was done in this case for more than five months). But any additional confinement requires a determination that the respondent is a Dangerous Sex Offender Requiring Confinement, a determination that requires clear and convincing evidence that the respondent is, inter alia, likely to commit a sex offense if not confined. If such a determination cannot be made, the statute does not allow any sanction to be imposed. The conditions of SIST can be modified. But a SIST violation cannot be punished. In this case, for example, the Court does not have the option of confining the Respondent to a Secure Treatment facility for a discrete period of time as a sanction for his criminal behavior.

Providing for a constitutionally appropriate method of sanctioning SIST violations would have to be done carefully. But, in the Court's view, the Legislature should consider providing some remedy for a SIST violation other than the all-or-nothing solution of either finding or not finding that a respondent is a Dangerous Sex Offender Requiring Confinement. For all of these reasons, the Court finds that the Respondent is not a Dangerous Sex Offender Requiring Confinement and orders that he be returned to Strict and Intensive Supervision and Treatment. This Court has issued a brief companion order to DOCCS and the Respondent, indicating [*28]modifications the Court is ordering with respect to the Respondent's SIST conditions.

May 16, 2011

Daniel Conviser

A.J.S.C.