Supreme Court, Orange County, October 20, 2018

Mental Hygiene Legal Service, Poughkeepsie (Eugenia Brennan Heslin of counsel), for petitioner.

Barbara D. Underwood, Attorney General, Poughkeepsie (Breda Huvane of counsel), for respondent.

Petitioner Glen H. moves for an order: (1) discharging petitioner from the regimen of strict and intensive supervision and treatment (hereinafter SIST) under article 10 of the Mental Hygiene Law; or in the alternative (2) modifying the conditions of supervision and treatment as the court deems warranted pursuant to Mental Hygiene Law § 10.11 (h).

An SIST termination hearing was held before the undersigned on April 9 and 12, 2018. Appearing for the petitioner Glen H. was Eugenia Brennan Heslin, Esq., Mental Hygiene Legal Service. Appearing for the respondent The State of New York was Breda Huvane, Esq., [*2]Assistant Attorney General. The petitioner called one witness: Barry Rosenfeld, Ph.D. The respondent called one witness: Jennine Martinez, Psy.D.

Petitioner's attorney Eugenia Brennan Heslin, Esq., submitted her summation and a reply to the State's summation. Respondent's attorney Assistant Attorney General Breda Huvane submitted her summation. Said submissions were considered by the court.

On July 23, 2015, the petitioner waived his right to a jury trial and consented to a finding that he was a detained sex offender who suffers from a mental abnormality and requires civil management through SIST. Further, on July 23, 2015, this court (DeRosa, J.) ordered, pursuant to Mental Hygiene Law § 10.11 (a) (2), the release of the petitioner to SIST.

On or about August 24, 2017, petitioner filed an order to show cause and petition seeking to discharge petitioner from SIST. "Pursuant to Mental Hygiene Law § 10.11 (f), one may seek modification or termination of SIST and its conditions once every two years" (Matter of State of New York v Stanley D., 143 AD3d 832, 833 [2d Dept 2016], citing Matter of State of New York v Nelson D., 22 NY3d 233, 243 [2013]).

"On a petition for termination of a regimen of 'strict and intensive supervision and treatment,' 'the attorney general shall have the burden of showing by clear and convincing evidence that the respondent is currently a sex offender requiring civil management' " (Matter of Michael R. v State of New York, 129 AD3d 978, 978 [2d Dept 2015], quoting Mental Hygiene Law § 10.11 [h]).

"A 'sex offender requiring civil management' is a 'sex offender who suffers from a mental abnormality' {**61 Misc 3d at 695}(Mental Hygiene Law § 10.03 [q]), which is defined as 'a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct' " (Matter of Michael R. v State of New York, 129 AD3d 978, 978 [2d Dept 2015], quoting Mental Hygiene Law § 10.03 [i]).

The State's Case

The Attorney General called Dr. Jennine Martinez, who was recognized as an expert witness on consent of the petitioner without objection. Dr. Martinez opined that Glen H. is a sex offender who suffers from a mental abnormality and should remain on SIST in that he is a person who has serious difficulty in controlling his criminal sexual conduct. She diagnosed petitioner with pedophilic disorder, nonexclusive, attracted to females, and other specified personality disorder with narcissistic features.

Dr. Martinez discussed at length the "offense pattern" exhibited by the petitioner while offending prior to his incarceration. The pattern included Glen H. "grooming families" where there were young children. Glen H. would groom families over a period of time sufficient for the family to develop a comfort level, which would provide him with opportunities to sexually offend against the children in that family. In each prior instance, Glen H. was involved with a consenting adult female as part of the grooming process. Dr. Martinez detailed several instances of Glen H. abusing his stepdaughter, his inappropriate "toweling off" of an 11-year-old daughter of his girlfriend, and his rubbing the chest of the 10-year-old daughter of his adult female fiancée. Dr. Martinez also outlined more recent instances which gave her cause for concern.

In 2017, Glen H. had an encounter in a Target department store where he observed a young girl and became aroused. As recent as March of 2018, Glen H. described an incident [*3]where a child flipping her hair a certain way was "attractive" and reminded him of his adult ex-girlfriend. Those instances, coupled with what Dr. Martinez described as Glen H.'s attempts to deceive and manipulate situations to gain access to children are consistent with his historical pattern of grooming.

Glen H.'s attempts to deceive and manipulate situations to gain access to children include his failure to reveal to his parole{**61 Misc 3d at 696} officer that he was having a long-term relationship with a woman from Texas who has children. Glen H. also went to family court to petition to gain access and visitation to his stepgrandchildren without informing parole of his attempt to do so and without revealing his sex offender status to the family court judge. Petitioner reasoned that seeking visitation with his stepgrandchildren was justified as it was an effort to see his ex-wife. Further, he continues to seek permission from parole to attend family events knowing children will be present at those events. Dr. Martinez reasoned that these deceitful and manipulative actions by petitioner to gain access to children are consistent with his historical pattern of grooming. Dr. Martinez reviewed petitioner's treatment history in order to determine if he has developed the skills and modalities to effectively deal with his urges if and when he finds himself around children and gets aroused.

During treatment, petitioner gives rote responses in generalities regarding his offenses and his pedophilic disorder. He consistently either denies it outright, denies as a general premise his arousal to prepubescent girls, or demonstrates hostility towards treatment providers who try to challenge him to open up about these issues. He demonstrated such hostility to one female treatment provider that she will no longer treat him in individual sessions, and that provider reassigned him to a male provider. Dr. Martinez interviewed petitioner's treatment providers, who have been treating him for approximately five years, and she reviewed his most recent progress reports. According to Dr. Martinez, those interviews and reports reflect that petitioner is in need of additional treatment at his current treatment regimen. Petitioner has failed to really delve into his issues in an attempt to develop skills to prevent recidivism. He has not even developed a relapse prevention plan.

Dr. Martinez opined that the stressors petitioner describes, coupled with the manipulative acts are the hallmarks of his risk to re-offend. These are compounded by his inability or failure to effectively speak about his offenses, his denials of deviant sexual arousals, and his failure to fully embrace his treatment in an effort to learn skills and modalities that will help control himself from engaging in criminal sexual conduct. Dr. Martinez contends that these findings also are supported by a low Static 99-R score, which corroborates her diagnosis and opinion.{**61 Misc 3d at 697}

The Petitioner's Case

The petitioner called Dr. Barry Rosenfeld, who was recognized as an expert witness on consent of the State without objection. Dr. Rosenfeld agreed with the diagnosis of pedophilic disorder and conceded that diagnosis meets the first prong of the mental abnormality criteria. However, he disagreed with the personality disorder diagnosis and opined that Glen H. does not have serious difficulty controlling his behaviors. Dr. Rosenfeld points to a number of factors in support of his opinion.

The first, and most important factor identified in support of his opinion is that petitioner has been at liberty and has not re-offended. He has followed the rules diligently since 2006 in that there have been no instances of recidivism and there have been no violations filed against Glen [*4]H. since he has been on SIST. Dr. Rosenfeld addressed some of the incidents which were at the heart of Dr. Martinez's opinion. He minimizes the importance of Glen H. trying to get supervised visitation with his stepgrandchildren and his request to attend parties where children are present. He opines that these actions are nothing more than petitioner trying to move on with his life. Dr. Rosenfeld reasons that Glen H.'s encounter with the criminal justice system was a wake-up call and the incarceration he served as a result of that encounter is sufficient motivation to prevent Glen H. from re-offending.

Dr. Rosenfeld contends that the incidents of Glen H. acknowledging instances where he has fleeting thoughts or stressors regarding prepubescent girls demonstrate that Glen H. does not have serious difficulty controlling his behaviors in that he did not re-offend and ultimately did admit to those incidents. Dr. Rosenfeld agreed with Dr. Martinez and considered that Glen H. is a person with "limited self awareness" but he noted that in and of itself this does not give rise to petitioner having a serious difficulty in controlling himself from engaging in criminal sexual conduct. All of the acts highlighted by the State simply are Glen H.'s efforts to return to a normal life and his frustrations with his inability to do so because of the restrictions imposed upon him by SIST. Dr. Rosenfeld also reviewed the petitioner's treatment records and noted that while his providers believed Glen H. "would benefit" from additional treatment, they did not specifically opine that SIST was necessary. Dr. Rosenfeld did express his own skepticism as to whether Glen H. would continue treatment if it was not{**61 Misc 3d at 698} mandated by the court, but he argued that Glen H.'s potential failure to continue with treatment is not a basis to maintain SIST when the elements required under article 10 for such a determination are not met.

Factual and Legal Analysis

Dr. Jennine Martinez testified that, in her opinion, petitioner still currently suffers from a mental abnormality and should remain on SIST under the same conditions. In support of her opinion, she presented a detailed physiological profile based upon petitioner's history and applied that profile to his current actions in the community, as well as his treatment in addressing the previously conceded determination of mental abnormality requiring civil management through a regimen of SIST.

Dr. Rosenfeld testified that while Glen H. does have limited self-awareness, his actions in the community demonstrate that he does not have serious difficulty in controlling his behaviors in that he has not re-offended, despite the incidents outlined by the State. While treatment may be beneficial to the petitioner, the requirements under article 10 have not been met and the necessity of SIST has not been demonstrated.

While the burden never shifts, in considering whether the State has met its burden of proof, this court must consider all of the credible evidence presented at the hearing. A determination previously was made by this court that Glen H. suffers from a mental abnormality that required civil management through a regimen of SIST. The petitioner consented to that finding.

In Stanley D., the Court found that the absence of any additional sex offenses, coupled with compliance with all SIST requirements and successful treatment were probative factors in determining whether a person has a current serious difficulty in controlling himself from committing sex offenses. The Court found that the State failed to prove that there was a current serious difficulty in controlling himself from committing sex offenses where Stanley D. [*5]had learned skills and modalities in treatment that provided him with a foundation to help control himself from engaging in criminal sexual conduct. Certainly, an inference can be drawn that a failure to adequately embrace sex offender treatment and a failure to learn sufficient skills and modalities in treatment to help control someone from engaging in criminal sexual conduct are probative factors for this court to consider.

The court credits the testimony of the respondent's witness Dr. Jennine Martinez and finds, upon clear and convincing evidence,{**61 Misc 3d at 699} that petitioner continues to suffer from a mental abnormality in that he has a congenital or acquired condition, disease or disorder that predisposes him to commit sex offenses and his condition results in him having serious difficulty in controlling such conduct (Mental Hygiene Law § 10.03 [i]). While Glen H. has made some progress in treatment, the State has demonstrated that Glen H. has not learned sufficient skills and modalities in treatment that provide him with a sufficient foundation to help him control himself from engaging in criminal sexual conduct.

Accordingly, the court finds that Glen H. is a sex offender requiring civil management pursuant to Mental Hygiene Law § 10.03 (i).

Based upon the foregoing, and due deliberation therein having been had, it is hereby ordered that the petitioner shall remain subject to a regimen of SIST, the conditions of which shall remain the same as those currently imposed, and it is further ordered that the petitioner shall remain under the jurisdiction of the New York State Department of Corrections and Community Supervision, which will supervise the petitioner's regimen of SIST which is continued by this order, and it is further ordered, pursuant to Mental Hygiene Law § 10.11 (b) (2), that every four months each service provider designated to provide treatment services to the petitioner submit to this court, to the Commissioner of the Office of Mental Health, to the petitioner's supervising parole officer, and to the Office of the Attorney General, a report concerning the petitioner's conduct while under the regimen of SIST, and it is further ordered, pursuant to Mental Hygiene Law § 10.11 (f), that the petitioner may petition this court every two years for modification or termination of his regimen of SIST, with that two-year period commencing no sooner than two years after the regimen of SIST commenced.