Supreme Court, Oneida County, May 13, 2019

Mental Hygiene Legal Service (Megan E. Dorr of counsel) for petitioner.

Letitia James, Attorney General (James Williams of counsel), for respondent.

Petitioner, John P., was served a notice dated August 23, 2018, advising him of his right to petition for discharge. Having declined to waive his right to petition for discharge, petitioner previously submitted a petition pursuant to Mental Hygiene Law § 10.09 verified June 1, 2018, and filed with the Oneida County Clerk June 13, 2018. The Attorney General responded via verified answer dated June 21, 2018. A stipulated omnibus order was filed July 3, 2018, granting the relief requested.

An evidentiary hearing was held April 29, 2019. The State submitted the report of Dr. Sujatha Ramesh and offered her testimony. Petitioner submitted the report of Dr. Barry Rosenfeld and offered his testimony. Petitioner also presented Dr. Christine Pallas for testimony.

The task of the court is to consider the totality of this evidence and determine whether John P. suffers from a "mental abnormality" as that term is defined in Mental Hygiene Law § 10.03 (i), and if so, whether he is a "dangerous sex offender requiring confinement" as that term is defined in Mental Hygiene Law § 10.03 (e). Although John P. filed the petition, the State bears the burden of showing by "clear and convincing evidence" that John P. fits within these [*2]definitions (see Matter of Akgun v State of New York, 148 AD3d 1613, 1614 [4th Dept 2017]).

Both Dr. Ramesh and Dr. Rosenfeld agree John P. suffers from a mental abnormality as that term is defined in Mental Hygiene Law § 10.03 (i). Dr. Rosenfeld notes: "Given his continued attraction to prepubescent boys, and the need to minimize his exposure to, and thoughts about children in order{**64 Misc 3d at 383} to manage his sexual interest, a diagnosis of pedophilic disorder (DSM-5 302.2) is warranted."^[FN1] Dr. Rosenfeld further notes:

"Despite the apparent improvement in his behavior at CNYPC, [John P.]'s history and clinical presentation is also consistent with a diagnosis of antisocial personality disorder . . . Moreover, [John P.] displayed a relatively high number of psychopathic personality traits, as evidenced by a PCL-R score that corresponds to the 71st percentile. Of note, this finding was virtually identical to a PCL-R scoring conducted by a CNYPC staff member in 2011."^[FN2]

Dr. Ramesh also diagnosed John P. with pedophilic disorder, antisocial personality disorder, and noted the presence of psychopathy. She wrote:

"[John P.] has a documented history of committing sexual offenses from approximately age 16 until age 19 when he was incarcerated. His pedophilic interest/behaviors are manifest in his multiple contact offenses, offenses against prepubescent males and females, possession of child pornography, significant arousal to prepubescent child stimuli during PPG, and a pattern of seeking visual content to fashion sexually evocative images of children for masturbation purposes."^[FN3]

Regarding antisocial personality disorder, Dr. Ramesh wrote:

"[John P.] has a history of conduct-disordered behaviors from around age 13; an extensive history of rule-breaking (both in the community and in controlled settings); history of being deceitful, irresponsible, and reckless towards others; and a pattern of interpersonal aggression."^[FN4]

On psychopathy, Dr. Ramesh states:

"A high degree of callousness decreases the likelihood that an individual with psychopathic traits will refrain from acting on his sexual urges or respect the victim's lack of desire to engage in sexual activity willingly . . . [John P.] has consistently been scored by multiple evaluators as rating high on the PCL-R and he is currently assigned to the MAPSS treatment track designed for individual{**64 Misc 3d at 384} presenting high in psychopathy. He presents with psychopathy coupled with sexual deviance."^[FN5]

The court credits the diagnoses by Dr. Ramesh and Dr. Rosenfeld of John P. having pedophilic disorder, antisocial personality disorder, and psychopathy, and finds that the State has met its burden proving by clear and convincing evidence that John P. suffers from a mental abnormality.

Turning now to the question of whether John P. is a dangerous sex offender requiring confinement, the court must determine whether the evidence shows he has such a strong predisposition to commit sex offenses and such an inability to control this behavior that he is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility (Mental Hygiene Law § 10.03 [e]; see Matter of Allan M. v State of New York, 163 AD3d 1493, 1494 [4th Dept 2018]). Dr. Ramesh administered the Violence Risk Scale—Sex Offender Version (VRS:SO) and scored John P. at 52.^[FN6] Dr. Ramesh states:

"This degree of progress has decreased [John P.'s] overall risk level since his initial evaluation but he continues to score in the high risk range. According to recent VRS:SO normative data as described above, offenders with similar pre-treatment and change scores as [John P.] are estimated to recidivate at a rate of 39.7% (range = 30.6% to 49.4%) over 5 years."^[FN7]

In assessing John P.'s current level of dangerousness, Dr. Ramesh also notes:

"[John P.'s] history of fashioning child pornography from non-sexual content is a striking example of the strength of his pedophilic interest and his attendant inability to manage his interest. Presently, his interest is so strong that his treatment team has instituted long-term restrictions and monitoring of his mail (except legal mail). His treatment team does not believe that he can manage his behaviors without such external control. [John P.] responds to these restrictions with anger, frustration, and grievance thinking rather than use it as a tool to refrain from such correspondence and {**64 Misc 3d at 385}subscriptions."^[FN8]

Dr. Ramesh concludes:

"[John P.] is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that he is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility."^[FN9]

Dr. Ramesh further testified that John P. has strong sexual urges and that by participating in chemical therapy, utilizing Lupron or other chemical treatment medication, may help him in part of his treatment process. In fact, a review of the records and contraband confiscated supports the finding that his preoccupation with sexual urges has diminished his progress and makes it difficult to control his sexual deviance. In addition, John P. has never previously completed a sex offender treatment program and he would need both the aspects of treatment and chemical therapy to substantially reduce his likelihood of recommitting a sexual offense.

While Dr. Ramesh concludes petitioner meets the criteria for both "mental abnormality" and "dangerous sex offender requiring confinement," Dr. Rosenfeld disagrees. Dr. Rosenfeld notes:

"Based on this analysis, a number of risk factors emerged that point towards a high risk of sexual re-offending whereas a handful of risk and protective factors were identified that may diminish this risk. The balance of risk factors displayed by [John P.] point to a [*4]moderate risk of sexual reoffending if released under close supervision, although this risk would be elevated if he were released without continued treatment and adequate monitoring" (emphasis added).^[FN10]

Dr. Rosenfeld also notes:

"although the presence of a psychopathic personality style is not independently associated with sexual reoffending, elevated levels of psychopathic traits increase the risk of sexual reoffending among individuals who are identified as having some type of sexual deviance."^[FN11]

Dr. Rosenfeld further notes:{**64 Misc 3d at 386}

"Although [John P.] appears to have made considerable headway in better understanding these problems, as well as his coercive and antisocial behaviors more generally (e.g., grooming potential victims, problematic intimate and non-intimate relationships, failure to adhere to conditions of supervised release), the extent to which these relatively recent changes will sufficiently reduce [John P.'s] risk of sexual reoffending over the long term is not yet clear."^[FN12]

While the court notes Dr. Rosenfeld's opinion regarding John P.'s treatment progress, it is clear from Dr. Rosenfeld's own words this is only the beginning of a change.

A major concern is John P.'s continuous contact with other sex offenders and pen pal websites and particularly his ongoing relationship with Mr. Schindler, a known sex offender, from 2010 through 2018. The denial made by John P. to Dr. Rosenfeld as to actually knowing Mr. Schindler is telling and raises credibility issues as to whether John P. is truly being honest with his treatment providers and independent examiners.

John P.'s social circles which he chooses to continue in with other sex offenders place him into an additional dynamic risk factor which can contribute to reoffending. John P. needs to totally divest himself from the negative social risk factors. John P. needs to follow the rules on contraband, receiving photos, nudity, and other stimuli such as travel magazines.

A lot has been discussed about the admirable progress John P. has made in the last few years. A review of the records by the court clearly indicates progress started in late 2017 to the present time; however, it is very confusing to the court as to why John P. would still have any contact with a sex offender such as John Schindler for any reason. I am not passing judgment on whether the sexually explicit contraband which was addressed to John P. but was intercepted by treatment providers from Mr. Schindler was requested or non-solicited, but this is clearly an example of the danger John P. faces by still socializing with known sex offenders.

John P. still has a difficult time controlling his anger when he objects or disagrees with staff at the Central New York Psychiatric Center. Life is full of rules and things we don't all agree with; how we react and the extent of our control is telling, especially when dealing with the need to control oneself{**64 Misc 3d at 387} when trying to develop controls to avoid sexual offending. This [*5]court is not one to set up a patient for failure or endangering the public when it is clear that at this time John P. still has issues following directions or rules, especially considering if placed on strict and intensive supervision and treatment (SIST), he would be under much less supervision. John P. needs to have an effective relapse prevention plan in place before his release on SIST.

The court credits Dr. Ramesh's report and testimony and finds the State has proved by clear and convincing evidence that John P. suffers from a mental abnormality and currently has such a strong predisposition to commit sex offenses and such an inability to control his behavior that he is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.

This court acknowledges the Matter of State of New York v Richard Z. and the legislative intent of the Sex Offender Civil Confinement Treatment Program to provide "meaningful treatment" as set forth in Mental Hygiene Law § 10.01 (a), (b), and (f) to patients under this statute, and to protect the public from dangers of recidivism. John P. has strong sexual urges that by participating in chemical therapy may assist him in part of his treatment. The petitioner has the right to have the opportunity for release, by receiving available treatment (such as chemical therapy along with treatment programs) to reduce his respective desires to sexually act out (see Matter of State of New York v Douglass S., Tormey, J., annual review hearing and order, index No. CA 2008-2297). It is well established that chemical therapy has had a positive result with less than a 3% recidivism rate by sexual offenders being so treated (see Matter of State of New York v Richard Z., Tormey, J., annual review hearing and order, index No. CA 2007-2605; see decision and order dated Aug. 13, 2015). Therefore, if the petitioner seeks treatment for chemical therapy and he is a viable candidate for such treatment the court will consider his release on SIST following the petitioner's treatment with leuprolide acetate or any appropriate antiandrogen therapy medication which will substantially reduce the petitioner's potential for sexual urges which may result in recidivism and his continued advancement in his treatment and care.

Therefore, it is hereby ordered that John P. shall continue to be committed to a secure treatment facility designated by the Commissioner; and it is further ordered that John P. shall{**64 Misc 3d at 388} continue to receive care and treatment pursuant to Mental Hygiene Law article 10 and that pursuant to Mental Hygiene Law § 10.09 (b), as amended and effective March 31, 2012, John P. shall be provided with written notice of the right to petition the court for discharge, and waiver form, pursuant to Mental Hygiene Law § 10.09, at least annually from the date of this decision; and it is further ordered that John P. shall retain any and all other rights provided by Mental Hygiene Law article 10, including the right to petition the court in the future for discharge or release under strict and intensive supervision and treatment; and it is further ordered that John P. shall be considered by the Office of Mental Health (OMH) for a course of chemical therapy treatment and if John P. decides to participate with that medical treatment he may re-petition this court for release to strict and intensive supervision and treatment as set forth in the findings above; and it is further ordered that copies of all post-commitment documents for treatment, evaluations, assessments, and raw data associated with John P. after a finding of mental abnormality and an order of continued confinement shall be retained at the OMH Secure Treatment Facility which is [*6]housing him, and that pursuant to Mental Hygiene Law article 47 and section 33.16 as referenced in article 10 of the Mental Hygiene Law, that Mental Hygiene Legal Service shall have access to all the aforesaid documents; and it is further ordered that the court record of this proceeding shall be sealed by the Oneida County Clerk's Office, and such records shall be available only to the parties to this proceeding or upon further order of this court, except that any and all court decisions and orders shall be available for usage in the redacted form, as to John P.'s identifying information (i.e., first name and last initial), by the parties and counsel to this proceeding for use in other Mental Hygiene Law article 10 matters.