Matter of State of New York v Anthony R.

Supreme Court, Bronx County

Decided on January 8, 2026

Index No. 250144-2018

Tara A. Collins, J.

The New York State Attorney General's Office commenced this action to revoke the respondent's release on Strict and Intensive Supervision and Treatment ("SIST") based on various violations of the conditions of his SIST regimen. Thereafter, the respondent filed a petition seeking a court order discharging him from SIST. A combined hearing pursuant to Mental Hygiene Law ("MHL") §§ 10.11(d)(4) and (f) was held on August 11 and 12, 2025. Jonathan Miljus, Ph.D., of the Office of Mental Health, testified for the petitioner, and Jeffrey C. Singer, Ph.D., testified for the respondent.^FN1 Both doctors prepared evaluation reports that were introduced into evidence.^FN2 The parties stipulated that Dr. Miljus and Dr. Singer are experts in the field of clinical and forensic psychology and the evaluation of sex offenders.

Upon careful consideration of the witness testimony, which the Court found credible, the hearing exhibits, the parties' arguments, relevant statutory and case law, and the respondent's medical and psychiatric diagnoses, the Court concludes that the respondent no longer suffers from a mental abnormality as that term is defined in MHL § 10.03(i). Therefore, his petition to be discharged from SIST is granted and the State's petition is denied as moot.

PROCEDURAL HISTORY

This Court's September 15, 2022, decision restoring the respondent to SIST, and May 23, 2023, decision civilly confining him, together include a comprehensive recitation of the relevant procedural history beginning September 26, 2006, the date of the qualifying offense. The September 10, 2019, decision from the Honorable Miriam Best, denying the respondent's [*2]petition to be discharged from SIST but granting his request to have his conditions modified, includes relevant background information dating back to 1997, including the qualifying offense. The information in those decisions is incorporated in this procedural history and will not be repeated.

In brief, on September 26, 2006, the then twenty-nine-year-old respondent forced his way into the room of a mentally ill sixty-four-year-old female in the adult home where she resided. He forced her onto her bed, groped her vagina, legs, and breasts, and had sex with her by force and without her consent (see Miljus Report, p. 3). On August 27, 2007, the respondent pled guilty to Attempted Burglary in the Second Degree, (Penal Law §§ 110/140.25[2]), in full satisfaction of the indictment.^FN3 He was sentenced to three years in prison and five years post-release supervision.

Article 10 proceedings commenced upon the respondent's anticipated release date from prison. In August 2015, the respondent was released to the community under SIST. In August 2021, the State sought to have the respondent confined based on repeated violations of various SIST conditions, and an evidentiary hearing was held. This Court found the State had not established by clear and convincing evidence that the respondent was a dangerous sex offender requiring confinement and ordered that he be restored to SIST (see decision, dated September 15, 2022). Within days of his release, the respondent, who was noncompliant with his medication and exhibiting psychotic behaviors, was taken into custody for violating multiple SIST conditions. In January 2023, the State petitioned to have the respondent confined. After an evidentiary hearing, this Court found the petitioner had satisfied its burden and ordered the respondent confined to a secure facility (see decision, dated May 23, 2024). The Appellate Division reversed this Court's determination and restored the respondent to SIST (State v. Anthony R., 228 AD3d 541, 545 [1st Dept. 2024]).

Thereafter, this Court saw the respondent for scheduled SIST updates. He was, in general, not compliant with his conditions of release (see appearance minutes, dated November 7, 2024, and December 19, 2024).

In January 2025, the State filed the instant petition, alleging the petitioner violated the following SIST conditions:

Condition #29 — I WILL enter, and complete sex offender treatment as directed by my Parole Officer and remain in treatment until its completion and WILL NOT leave without the knowledge and permission of my Parole Officer; and

Condition #30 — I WILL follow the directives of my sex offender treatment, attend treatment regularly, participate in treatment and not miss scheduled treatment appointments. I WILL report any difficulties I experience in my treatment to my provider and my Parole Officer. NOT behave in such manner as to violate the provisions of any law or Order of Protection to which I am subject, NOR WILL I engage in behavior that threatens the safety or well-being of myself or other.

(Petition for Confinement, dated January 22, 2025, p. 3).

FINDINGS OF FACT

Testimony of Dr. Jonathan Miljus and the State's Case:

Dr. Miljus interviewed the respondent on January 21, 2025, for about an hour and a half, and again on June 13, 2025, for about fifteen minutes, by video conference while the respondent was at Rikers Island. Respondent's counsel was present for both interviews. The purpose of the January interview was to evaluate the respondent following his SIST violations to determine if he should be released back to the community or if he required confinement. The June interview was to evaluate the respondent following his petition to be discharged from SIST. Dr. Miljus had also interviewed the respondent in 2018, 2019, and 2023, in connection with previous Article 10 proceedings. Dr. Miljus reviewed numerous records, such as treatment reports, criminal records, and expert reports from other psychologists (including Dr. Singer's reports), which he stated is common practice by professionals evaluating sex offenders pursuant to Article 10.^FN4 He also spoke to several collateral sources, such as the respondent's parole officers and sex offender and substance use treatment providers. (H. 13-14, 18; Miljus January Report, pp. 1-2; Miljus June Report, p. 1)

Compared to past interviews, during the January 2025 interview, the respondent was relatively stable. He denied hallucinations, his thoughts were logical (though mild-to-moderately disorganized), his mood was slightly elevated, he had "a little excess energy," and he would speak faster and with more intensity when discussing emotionally latent topics. Overall, the doctor deemed him cognitively able to participate in the interview. Fifteen minutes into the June interview, however, Dr. Miljus stated the respondent became frustrated and terminated the interview. (H. 15; Miljus January Report, p. 5).

Based on his evaluation for the instant proceeding, Dr. Miljus diagnosed the respondent with: antisocial personality disorder; schizoaffective disorder, bipolar type; cannabis use disorder, moderate, in sustained remission in a controlled environment; alcohol use disorder, moderate; and borderline intellectual functioning (H. 53-54; Miljus January Report, pp. 30-34). Except for alcohol use disorder, he had diagnosed the respondent with these disorders in the past when he evaluated him in connection with prior Article 10 proceedings (H. 53). They are all chronic conditions (H. 110). In 2018, Dr. Miljus scored the respondent a 19 (with two omitted items) on the Psychopathy Checklist-Revised, Second Edition ("PCLR"), which suggested a moderate level of psychopathic traits. He reviewed Dr. Claire Lagarde's ^FN5 2021 PCLR score, which was 24.2 (with one omitted item), which also suggested a moderate level of psychopathy. He noted psychopathy as indicative of sexual recidivism "as a whole hasn't been validated," though one of its two factors — antisociality — is "somewhat predictive" of sexual offending or sexual reoffending. (H. 59-61).

Dr. Miljus previously administered the Static-99R, an actuarial sex offender risk assessment test which tallies a score based on historical data and provides a prediction of future offenses based on group estimates. He did not rescore it for the instant proceeding, but noted [*3]since it is based on historical data, it tends to be unchanging. He stated the respondent's score "is and has been eight for some time," which placed him in the "Well Above Average" risk group for recidivism. (H. 54-55; Miljus January Report, p. 21). He explained that the score would have been most accurate in 2015 when the respondent was first released in the community and noted that the respondent had been in the community about five years before he was confined due to SIST violations. He further noted, according to Static-99R guidelines, after two years in the community the respondent's risk of reoffending dropped, and after five years, his risk of reoffending was about half of what it was when he was released (H. 103-104).

The doctor had also previously scored the respondent on the STABLE-2007 instrument, which assesses dynamic risk factors that are amenable to change (H. 54, 57-69; Miljus January Report, pp. 23-29). Although he did not administer or score it, Dr. Miljus reviewed the respondent's score on the ACUTE-2007 risk assessment instrument, which assesses immediate factors suggestive of an acute risk of sexual recidivism. Based on the respondent's scores, which were assessed as of September 9, 2024, he was deemed to be "at high risk for sexual recidivism for the five months that he was evaluated" (H. 56; Miljus Report, p, 22). Dr. Miljus acknowledged that there is no record of the respondent reoffending in the five years ^FN6 he was released to the community (H. 104).

Dr. Miljus testified that in January 2025, the respondent was deemed too psychiatrically unstable to continue treatment and he was "unsuccessfully discharged" from Empire State Forensics sex offender treatment. Among the respondent's behavioral issues that were highlighted were harassing front desk staff by asking too many questions, arriving significantly early to appointments, making other clients uncomfortable in the waiting area,^FN7 speaking loudly and pacing around the office, making concerning statements about rape during substance abuse treatment, compulsive sexual behaviors, sexual preoccupation, and being disruptive. The respondent denied to Dr. Miljus that he was sexually preoccupied (H. 22-23, 93-94).

Dr. Miljus spoke to Dr. Must and Cassidy Narvaez, two of the respondent's sex offender treatment providers. Dr. Must conducted the respondent's intake in September 2024, but his treatment was postponed to late November/early December because he was too psychiatrically unstable to appropriately engage in treatment. Ms. Narvaez told Dr. Miljus that the respondent made clear he was not a sex offender because he was not on the sex offender registry. He also told Ms. Narvaez he had only taken advantage of vulnerable individuals. Ms. Narvaez told Dr. Miljus that the respondent had been viewing pornography, and he did not see a connection between his pornography use and his offenses. Dr. Grossier, a psychologist at the Bronx Psychiatric Center Clinic, told Dr. Miljus that the respondent stated he had intentionally viewed pornography knowing it was against his SIST conditions because he did not think his parole officer would search his phone, and even if he were discovered, he believed the consequences would be minor. Dr. Miljus testified that some of the pornography the respondent searched for — men sneaking into beds — was related to his offense history (sneaking into the room of a woman [*4]and offending against her). With respect to the 2006 qualifying offense, Dr. Miljus testified that records showed the respondent was targeting vulnerable individuals who would not report him. The doctor noted that this is the second time the respondent has been on SIST, and when he violated SIST conditions in 2021 he had also been viewing pornography. Back then, the respondent stated that masturbating to thoughts of past girlfriends and cold showers were not sufficient to meet his sexual needs. Dr. Miljus pointed out that the respondent told him he masturbated as a coping mechanism to not reoffend, and that he viewed pornography because his "urges got the best of" him, though he denied he would reoffend if he was unable to view pornography. Dr. Miljus stated he was seeing a related pattern of behavior. (H. 17, 30-31, 34-36, 38, 65, 92; Miljus January Report, p. 4, 12, 18-19).

Dr. Miljus testified that the respondent engaged in disruptive and inappropriate behavior during substance abuse treatment at Revcore, such as discussing sexual issues during group sessions, stating he was attracted to former and current treatment providers, and testing positive for alcohol. He engaged in these behaviors despite being directed not to (H. 22-23, 25; Miljus January Report, p. 6). Dr. Miljus noted Micah Sanguyu, the respondent's substance abuse treatment provider, told him that the respondent would discuss sexual thoughts and feelings, masturbation, and rape (including that he was a victim of rape and had raped women), that he was sexually preoccupied, that he twice took an "inappropriate amount" of hand sanitizer and motioned as if her were going to place it on his genitals, and that he was hard to redirect. The respondent had acknowledged to Dr. Miljus that he put hand sanitizer all over his body, including his penis, but said he did so because he "stinks." There was no record that the respondent approached any of the staff he claimed to be attracted to, or that he said or did anything inappropriate, sexually or otherwise. Ms. Sanguyu also told Dr. Miljus that the respondent used crack to hallucinate about having sex with women, and that the respondent was not able to develop techniques to prevent himself from acting on his urges or impulses to use illegal substances. (H. 25-28, 94, 98; Miljus January Report, p. 17, 19). The respondent told Dr. Miljus he understood he violated his SIST by not discussing sexual topics during sex offender treatment, by discussing sexual topics in substance abuse treatment even though he had been told not to, and because he was being disruptive in treatment.^FN8 He said he talked about sex-related topics during substance abuse treatment because alcohol and drug use contributed to his offending. He denied to Dr. Miljus that he was on the cusp of raping someone. The respondent told Dr. Miljus that he had not intended to convey to his SIST team that he used crack to prevent himself from committing rape. (H. 38; Miljus January Report, pp. 18-20). The respondent has repeatedly, in the eight years since Dr. Miljus has been familiar with him, mentioned the urge to use marijuana.^FN9 Dr. Miljus stated that the respondent does not currently link his substance use with his mental stability and has no insight into the "potential catastrophic" destabilizing effect it [*5]has on his mental health. This is significant, the doctor explained, because the respondent's mental stability is linked to his sexual offending (H. 40-41).

Dr. Miljus noted that the respondent has not been compliant with taking medication for his psychiatric disorders and has been resistant to medication increases. The respondent's treating doctors told Dr. Miljus that when a patient stops and starts medication many times (which the respondent has done), it may not be possible to fully restore them to a level of stability. His doctors were slowly working towards stabilizing the respondent, including placing him on mood stabilizers. The respondent's resistance to medical follow-ups, however, made it made it difficult for them to prescribe the most common medications because they require bloodwork to monitor the dosage.^FN10 Substance use also impacts the efficacy of the respondent's medication. The respondent's mistaken association of being medicated to being violent led to his belief that he does not need to be medicated while in the community because he had not been violent. (H. 47-50, Miljus January Report p. 14, 20-21).

Dr. Miljus testified that the respondent's psychiatric stability has been at the core of his issues since the qualifying offense and before ^FN11 (H. 51-52). The doctor noted the respondent suffers from severe mental illness and his lack of stability has been a driving force of his behavior, including his repeated SIST violations and its negative consequences, yet he is still resistant to medication increases and has stated he only agreed to take medication because of Court directives. (H. 52-53). Dr. Miljus explained one of the reasons the respondent has refused medication is because of their side effects, including the sexual side effects, and that he has chosen "to prioritize his sexual needs over . . . managing and mitigating his risk and maintaining a higher level of stability while he's living in the community" (H. 53).

Dr. Miljus also pointed out that the respondent has frequently violated the curfew imposed by SIST, despite being warned to refrain from doing so and having been violated for breaking curfew in the past. When the respondent has been observed leaving the facility outside of curfew, he primarily loitered around its location.

Based on his evaluation and the respondent's diagnoses and documented behaviors, Dr. Miljus opined, within a reasonable degree of professional certainty, that the respondent suffers from a mental abnormality, that he is predisposed to committing sexual offenses, and he is a dangerous sex offender requiring confinement (H. 62-67). SIST, he explained, "is for individuals who are capable of managing their risks in the community and demonstrating the ability to engage with treatment and remain safely in the community and working towards further mitigating that risk" and who "can demonstrate that they no longer have serious difficulty in controlling the conditions, diseases, or disorders that predispose them to commit sexual offenses" (H. 65-66). The respondent, he stated, "has not done that" (H. 66).

[*6]Testimony of Dr. Jeffrey Singer and the Respondent's Case:

Dr. Singer first met the respondent in 2013 when he was hired by Mental Hygiene Legal Services to evaluate whether he suffered from a mental abnormality and whether he could be managed on SIST. At that time, he had opined the respondent had a mental abnormality and he could not recommend SIST. He has since evaluated him in 2015, 2019, 2021, 2023, 2024, and 2025. In connection with his most recent evaluation, Dr. Singer reviewed SIST records, prison records, psychiatric records, and Dr. Miljus' reports. He also interviewed the respondent for thirty-five minutes on April 3, 2025. Dr. Singer testified that he saw a difference in the respondent from when he first assessed him in 2013. He presented as anxious, disordered, and "perhaps scared." The doctor noted the respondent is "not the kind of person who would produce a very verbally meaningful interview," and described the respondent's speech as rambling and "a word salad." The respondent did not express an intent to reoffend or that he suffers from urges to sexually violate someone. He did not ask the respondent about his medication. (H. 145, 184, 197-198).

Dr. Singer diagnosed the respondent with schizoaffective disorder, bipolar type, PCP abuse disorder, and cannabis use disorder. (H. 146, 195-196; Singer Report, p. 6-7). A person with schizoaffective disorder will have disordered thoughts, impaired perception and reality testing, have mood swings and instability, and function at a low level. He testified that the first step in treating schizoaffective disorder is with psychiatric medication. Without medication, Dr. Singer explained, there is not effective treatment. The next step is psychosocial treatments and supportive therapy to help the individual structure a meaningful life. The doctor stated schizoaffective disorder is a lifelong functional impairment that requires continuous psychiatric care and psychopharmacological interventions. (H. 150). Dr. Singer testified that the respondent was prescribed, from 2015-2021, antipsychotic agents (Invega shots and Risperdal), mood stabilizers (Depakote and Abilify), and an anticonvulsant to treat the shaking and twitching symptoms associated with antipsychotics (Cogentin). Dr. Singer believes the respondent did well on those medications when he was in the community, even though he still exhibited schizoaffective disorder symptoms, because there were no new reports, allegations, or charges of sexually problematic behavior. He noted, however, that the respondent suffered from religious delusions when he was in the community. (H. 151-152, 192). Dr. Singer agreed with Dr. Miljus' assessment that the respondent's reluctance to take his mood stabilizers because of sexual side effects shows he is prioritizing his sexual pleasure over his psychiatric needs, but he disagreed that it means he is prioritizing illegal sexual pleasure. While he understands that the respondent would not want to give up having sexual pleasure, Dr. Singer stated it is important he gets a consistent dosage of a mood stabilizer that manages his symptoms (H. 169-170).

Although not psychiatric diagnoses, Dr. Singer also found the respondent to suffer from borderline intelligence and adult antisocial behavior (H. 146, 193). He testified that neither borderline intelligence or adult antisocial behavior predisposes the respondent to commit sex offenses, and he pointed out that the respondent has not demonstrated sexual behavioral dyscontrol in the six years he was in the community (H. 149). Dr. Singer did not assign a diagnosis for any personality disorder. He opined that in an individual such as the respondent, who has a debilitating psychiatric disorder, "the idea to have a personality character structure that can be disordered doesn't really exist because your basic character structure is shattered under the weight of" the psychiatric disorder. In the respondent's case, that would be his schizoaffective disorder. (H. 147-148, 194-195).

Dr. Singer attributed the respondent's 2021 SIST violations, which included medication noncompliance, to his inability to adapt to the breakdown in treatment that resulted from the Covid-19 pandemic. When the respondent was thereafter held at STARC Oakview, there was a problem getting the respondent on the correct dose of medication. Dr. Singer testified that he does not believe the respondent was properly psychiatrically stabilized on medication when he was released back to SIST in 2023 and again in 2024. When he was on the correct dose of Risperdal, the doctor testified, the respondent was calmer and less verbally aggressive. He acknowledged that during his most recent time in the community the respondent's level of functioning had regressed (H. 153-155, 174-176, 178-180, 185-189).

One of his current violations is for viewing pornography, which Dr. Singer did not find problematic. He noted despite viewing pornography, he has demonstrated no issue controlling his sexual behavior. In the absence of reports or allegations of illegal sexual behavior, the types of pornographic websites the respondent accessed did not negatively affect his opinion. (H. 157-158, 199). Dr. Singer explained that the respondent "is not a sophisticated, slick, deceptive person who's able to hide. He's in your face, he's crude, he's primitive, and he's looking at pornography and there's no sexual violence or urges that he's saying I can't control myself" (H. 158). He disagreed that the pornography — with titles that included "sneaking" into someone's bed — were relevant given the respondent's offense history. Dr. Singer noted the respondent has been effectively managing his libido since his release to SIST, his last problematic sexual behavior occurred in 2009, and the risk of reoffending decreases after age forty. He acknowledged that he did not bring up the respondent's pornography use when he interviewed him and did not ask him about the "rituals" the respondent said he utilized to not reoffend. (H. 158-160, 185-186, 199-201).

Dr. Singer opined that the respondent's other violations, such as breaking curfew, showing up early for appointment, disturbing other patients, and the incidents with the hand sanitizer, are consistent with an individual with schizoaffective disorder and do not show he was sexually dyscontrolled. He also did not think it was appropriate to hold against the respondent the fact that he was discussing sexual topics during substance abuse treatment given his conditions. Dr. Singer stated he believes the facility's response was counter therapeutic and harmful to the respondent's treatment (H. 160-163, 167-168, 187-188, 198, 201-202). Dr. Singer testified that the respondent's substance use history, including crack/cocaine and alcohol, is not related meaningfully to him not being able to control his sexual behavior. He noted someone like the respondent, who suffers from a serious psychiatric disorder, has insight, planning, and impulse problems. Dr. Singer testified that the fact that the respondent could verbalize that his substance use is linked to his offending behavior is a good sign. (H. 164-169, 187).

Dr. Singer stated he does not find the Static-99R to be relevant because an actuarial approach is simplistic. He noted the respondent's score of eight by Dr. Miljus was prior to him having six years in the community. He also found the Acute 2007 to be a poor tool for assessing the respondent because regardless of his risk rating, there were no reports of illegal sexual behavior while he was in the community. Dr. Singer testified that he prefers the more flexible SVR 20 assessment took, which he has used to evaluate the respondent. Each time his findings have been basically the same. (H. 172-174).

Dr. Singer testified that the respondent liked living at the transitional living residence at Bronx Psychiatric Center. He does not, however, think the respondent is unable to live independently outside such a setting. Dr. Singer stated the respondent can be successful if he has [*7]"a lot" of psychosocial support and encouragement. He also needs an accountability plan for his medication on an ongoing basis since he is psychiatrically impaired, intellectually limited, and has very limited ability to make decisions. Dr. Singer does not think sex offender treatment is as critical as the psychosocial element and stated the respondent has had "maximum therapeutic benefit" from sex offender treatment. Dr. Singer testified that while he was not aware of what programs are available, he assumes there must be resources in the community for managing psychiatric patients. (H. 171-172, 181-182, 190-191, 20204).

Dr. Singer opined, within a reasonable degree of professional certainty, that the respondent does not meet the psychological criteria of a mental abnormality pursuant to MHL § 10.03(i). If the Court finds he does have a mental abnormality, Dr. Singer opined that he can be managed under SIST. (H. 146, 159, 180; Singer Report, p. 15).

LEGAL ANALYSIS AND CONCLUSIONS OF LAW

Upon a motion for discharge from Article 10 civil management, it is the State's burden to establish by clear and convincing evidence that the respondent suffers from a mental abnormality (see People ex re. Neville v. Toulon, 43 NY3d 1, 5 [2024]; State v. Frank P., 126 AD3d 150, 161-162 [1st Dept. 2015]; MHL § 10.09[a] and [d]). A mental abnormality is a "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 ... to the commission of conduct constituting a sex offense and that results in [him] having serious difficulty in controlling such conduct" (MHL § 10.03[i]; State v. Donald DD., 24 NY3d 174, 187 [2014]). To meet their burden, the State must establish that the respondent has serious difficulty controlling his sexual conduct independent of a determination that he suffers from a condition, disease, or disorder that predisposes him to the commission of sexual offenses (see Frank. P., 126 AD3d at 162). When the State alleges there has been a violation of SIST conditions, they bear the burden of establishing by clear and convincing evidence that the respondent is a "dangerous sex offender requiring confinement." (MHL § 10.11[d][4]; see MHL § 10.03[r]; State v. Michael M., 24 NY3d 649, 658 [2014]). The Court is "not limited to considering only the facts of the SIST violations" that prompted the revocation proceeding, but may also "rely on all the relevant facts and circumstances tending to establish that respondent [is] a dangerous sex offender, such as his underlying offenses and past SIST violations" (State v. DeCapua, 121 AD3d 1599, 1600 [4th Dept 2014] [internal citation omitted], lv denied 24 NY3d 913 [2015]).

The parties agree on several key areas. Although Dr. Miljus and Dr. Singer are not in complete agreement as to his diagnoses, it is not disputed that his disorders, including schizoaffective disorder, bipolar type, are chronic, lifelong conditions that cannot be cured, but must be managed with medication. While the respondent maintains he is currently compliant with his medication, the record is clear that the respondent's history, including his recent history, is one of, for various reasons, noncompliance and/or resistance to taking recommended medications to treat his conditions. It is additionally not disputed by the parties that without proper medication, the respondent becomes dysregulated, unstable, engages in problematic behaviors, and is unable to meaningfully care for himself. In fact, even when he has been seemingly compliant with taking his medication, this Court has observed that he still has difficulty regulating his behavior. Finally, it is not disputed that in the approximately six years that the respondent has been released in the community there is no evidence that he has [*8]committed a sex offense or engaged in inappropriate sexual conduct with anyone.^FN12

Both experts recognized that the core of the respondent's issues are his mental health and intellectual disabilities. The record reveals the respondent's current SIST violations, as in the past, are in significant part the result of those conditions. As was the case when he first appeared before the Court in 2019, his violations include breaking curfew, not going to sex offender treatment as directed, being disruptive and verbally aggressive in sex offender and substance abuse treatment, using alcohol and possibly drugs, and viewing pornography.

Dr. Miljus believes the respondent suffers from a mental abnormality with a strong predisposition to commit sex offenses, that his conduct is indicative of an inability to control his behavior, and that he is likely to commit sex offenses if not confined to a secure treatment facility. Dr. Singer disagrees. He does not believe the respondent suffers from a mental abnormality within the meaning of MHL § 10.03(i), and thinks that he can be discharged from SIST for "standard" psychiatric care. The Court is faced with two experts who have come to opposing conclusions based upon the same set of circumstances. Dr. Miljus finds that all of the respondent's SIST violations are proof of his continuing mental abnormality and inability to control his sex offending behavior. Dr. Singer, on the other hand, finds that the respondent's violations have no bearing on his ability to control his sexual conduct and that he no longer suffers from a mental abnormality.

While this Court found portions of Dr. Singer's testimony unpersuasive, it agrees with his assessment that in the nearly six combined years the respondent has been in the community, he has not expressed through his words or actions an indication that he has had serious difficulty controlling his sexual conduct. That is not to say that his behaviors have not been troubling; they are deeply concerning to the Court. The State simply has not satisfied its burden (see State v. Anthony R., 228 AD3d 541, 545 [1st Dept. 2024] [in reversing this Court's order confining this respondent, the Court noted, "It is undisputed that, during the relevant period, respondent made no sexual threats, did not approach any treatment staff in a sexual manner, and did not express any sexual impulses or urges").

In the absence of sexual misconduct while in the community, the State must demonstrate a link between the respondent's nonsexual SIST violations "and the offender's ability to control his sexual behavior" (Id.). Even a tendency to engage in risky or socially undesirable behavior that could increase the likelihood of sexually offending and/or struggling with sexual urges is not enough to show an offender is unable to control their sexual misconduct (Id. at 544-545). Here, there is no question the respondent's behavior is undesirable, and the Court accepts Dr. Miljus' opinion that engaging in such behavior may be associated with a heightened risk of reoffending. However, there is insufficient evidence that the respondent has had "serious difficulty" [*9]controlling his sexual urges and/or sexual conduct during his time on SIST.^FN13

A January 6, 2025, report from RevCore substance abuse treatment program indicated the respondent was having disorganized thoughts about rape (being a victim of rape and committing rape), that he was observed exiting a restroom with "an excessive amount of hand sanitizer and motioning his hands with the hand sanitizer towards his genital area," and made statements about being sexually attracted to RevCore staff members. There is, however, nothing in the record showing the respondent said or did anything sexually inappropriate to any staff and it appears to be conjecture that he was using hand sanitizer as a lubricant. There were no reports of the respondent being observed masturbating or engaging in sexually inappropriate conduct, and the respondent claimed he used the hand sanitizer to clean his entire body, including his penis, because he thought he smelled. While the respondent's insistence on discussing sexual topics during substance abuse treatment was improper, it is worth noting the two instances where he did so were when he was not receiving sex offender treatment. This behavior seems less indicative of a predisposition to commit a sex offense and serious difficulty controlling such conduct, (see MHL § 10.03[i]), and more a manifestation of the respondent's under-treated schizoaffective disorder, intellectual disability, and other conditions.

The Court is mindful that the respondent has repeatedly viewed pornography, and of the nature of the pornography the respondent sought out. Among the videos discovered on the respondent's cell phone were ones that, according to their titles, may have included the act of sneaking into a bed or bedroom (see SIST incident report from December 4, 2024). This scenario parallels the circumstances of the qualifying offense, as well as the incident that resulted in the respondent's parole being revoked in 2009.^FN14 Some of the pornography website addresses the respondent searched included the term "teens." It must be noted, however, the incident report stated the respondent was watching "adult pornography videos" (see id.), the respondent has never been diagnosed with a pedophilic disorder, and it was not alleged nor was he ever charged with any crime related to children in connection with the videos.

The Court is also mindful that the respondent has indicated at various times that he masturbates to pornography as a means not to reoffend. Dr. Miljus believes that the respondent viewing pornography despite knowing it is against SIST rules and would result in negative [*10]consequences if caught, shows that he is unable to control his sexual urges. Dr. Singer, on the other hand, believes that the respondent uses pornography as a "masturbator[y] aid," and the fact that it has "not fuel[ed] any kind of . . . illegal sexual behavior," demonstrates he "has no problem in controlling his sexual behavior" (H. 157). There was some evidence that the respondent may have been viewing pornography throughout his time in the community, including when he was psychologically dysregulated. In connection with the 2021 SIST revocation proceedings, his parole officer had reported that she discovered approximately forty open tabs on the respondent's cell phone for different pornographic websites, as well as a Google search history for pornography. His parole officer further reported that the respondent had stated he views pornography to masturbate because he does not have a girlfriend. (See this Court's decision, dated September 15, 2022; H. 35-36). The Court finds the respondent's behavior troubling but cannot ignore that the State has offered no evidence that he has reoffended or behaved in a sexually inappropriate way with others despite his apparent consistent use of pornography.

The respondent tested positive for alcohol at least once, though there is no record that he has been observed intoxicated by his treatment providers. While he has indicated during treatment that he has the urge to use substances, such as crack cocaine, when he sees attractive women, and he has expressed to Dr. Miljus a desire to use marijuana, the Court has no recent reports of him testing positive for drugs. Breaking curfew and GPS monitoring revealing him in unapproved locations (such as 125th Street in Manhattan) have been ongoing issues the entire time he has been before this Court. There have been no reports that he was engaging in improper sexual conduct when he has been discovered loitering in places he should not have been, or that he was engaging in activities that would put him at a higher risk for reoffending. The Court has not been presented with compelling evidence that these SIST violations are indicative of the respondent currently having serious difficulty controlling his sexual conduct (see Anthony R., 228 AD3d at 545-546 [Court found that petitioner "presented no evidence that respondent's alleged substance abuse directly resulted in any sexual behavior" and that his "lack of transparency regarding his violation of curfew . . . do not establish that he is incapable of controlling his sexual impulses").

The Court has reviewed the respondent's scores and performance on the different assessment tools utilized to aid in determining his risk of recidivism, but the results of those assessments have not been borne out by his real-world conduct over the past six years.

The respondent was not discharged from sex offender treatment at Empire State Forensics because he made sexual threats or approached staff and other clients in a sexual manner. He was discharged because he was irritable and delusional during therapy ^FN15 and could not be redirected, he would arrive significantly earlier than scheduled treatment appointments, harassed a front desk employee with excessive questions, and made other clients uncomfortable by talking loudly and pacing around the office suite. The program concluded that, "[h]e is not functioning at a level well enough to engage in outpatient, structured and dedicated sex offense specific work" (Empire State Forensics letter, dated January 15, 2025). In short, the program was [*11]unable to treat an individual such as Mr. R. who suffers from significant mental disorders.

Dr. Singer faults the respondent's treatment programs for, in his opinion, failing to properly treat him in light of his significant mental and intellectual disabilities. Having seen the respondent in person and by video conference multiple times, this Court has observed the respondent's aggressive and psychotic outbursts and behaviors, the true import of which are not adequately conveyed in a written transcript. As such, this Court can appreciate the programs' concern for the safety of their staff and other clients. The Court shares Dr. Singer's frustration that the respondent's needs have thus far not been met but does not believe the blame for that lies solely with his most recent treatment programs, that apparently did not possess the resources to address his serious conditions.

As Dr. Singer testified, the respondent seems to have been the most successful when he was on Assisted Outpatient Treatment, also known as "Kendra's Law" ("AOT") (see MHL § 9.60). Yet, despite the respondent's limitations and needs, the AOT order was allowed to lapse in 2017. In its October 26, 2022, order, this Court included a directive to have a physician evaluate the respondent to see if he would meet the criteria for AOT (see Order, dated October 26, 2022). That directive was rejected by OMH who determined he did not meet the criteria for AOT and refused to make a referral (see minutes, dated November 7, 2024, p. 7; minutes, dated December 19, 2024, p. 12; letter from the State of New York, Office of the Attorney General, dated September 30, 2022).^FN16 Dr. Garrett, the respondent's recent treating psychiatrist, and Dr. Williams, the supervising psychiatrist, had informed Dr. Miljus that the respondent also did not meet the criteria for "treatment over objection" under MHL Article 9 ^FN17 because he was not suicidal or homicidal, and he was compliant enough with treatment and medication that they could not make the case that he was "gravely disabled" (H. 49-50, 78; Miljus January Report, p. 14; see also MHL §§ 9.27, 9.37, 9.39, and 9.43; 14 CCR-NY 27.8). The respondent's attorney acknowledged as much during the November 7, 2024, appearance before this Court, when they [*12]indicated since treatment staff at his transitional living facility did not believe the respondent was a danger to himself or others, they would not take him to a psychiatric emergency room (see minutes, dated November 7, 2024, pp. 4-7). As far back as 2022, OMH indicated the respondent was not eligible for voluntary or involuntary inpatient hospitalization (see letter from the State of New York, Office of the Attorney General, dated September 30, 2022). It seems that Mr. R is not sick enough to qualify for enhanced therapeutic treatment through AOT, involuntary commitment, or treatment over objection, but he is too sick to be managed by the programs provided through SIST.

In the time the respondent has been before this Court, it does not appear he has been appropriately medicated, owing primarily to his refusals, despite repeatedly promising the Court he would be medication compliant. Nor has he fully benefited from mental health, sex offender, and substance abuse treatment, owing to a combination of his own disruptive and destructive behaviors, the limitations of the programs in which he has been placed, and his serious mental and intellectual disabilities. As evinced by the fact the respondent is once again before the Court having been unable and/or unwilling to comply with his SIST conditions, it is apparent none of the outpatient programs (other than AOT) have been able to effectively manage him. In this regard, SIST, which was not designed for individuals such as Mr. R., has failed him. Even when the respondent has been confined to a hospital or mental health facility, this Court has not observed him to be significantly more stable than when he has been in the community.

The respondent is profoundly mentally ill, which is compounded by his intellectual disability and history of substance abuse. The Court finds Dr. Miljus' diagnoses of the respondent (schizoaffective disorder, bipolar type; antisocial personality disorder; cannabis use disorder, moderate, in sustained remission in a controlled environment; alcohol use disorder, moderate; and borderline intellectual functioning) to be most reflective of his conditions and consistent with the record, including the multiple expert evaluations that have been conducted over the years by various psychologists.

The respondent is clearly in desperate need of comprehensive psychiatric and psychological care to manage his conditions. Article 10, however, is not intended to provide such care to sex offenders, no matter how mentally ill, unless they suffer from a mental abnormality (see MHL 10.03[i]). The Court is skeptical about the respondent's chances of obtaining and successfully utilizing mental health care if discharged from Article 10 management. He has had a discouraging history of compliance when he was legally mandated to receive such care and was being monitored. That consideration, however, does not warrant confinement or continued monitoring on SIST, nor does the law allow for it. It is "well established that if an individual can live safely in freedom and is not dangerous to himself or others, due process will not tolerate his involuntary commitment irrespective of whether treatment some may deem beneficial will be provided," even if that treatment could "be necessary to preserve his life" (see Matter of Harry M., 96 AD2d 201, 206-207 [2d Dept. 1983]).For the conviction that triggered these Article 10 proceedings, the respondent was sentenced to three years incarcerations followed by five years of post-release supervision. He has been before the Court since his release in 2015, either confined to a secure facility or on SIST. The respondent has been civilly managed for longer than the law anticipated he would be punished for his crime. That outcome is unsurprising given that "Mental Hygiene Law article 10 is manifestly intended not to punish sex offenders, but to provide necessary treatment and protect the public from their recidivist conduct" (State v. Daniel OO., 88 AD3d 212 [3d Dept. 2011] [*13][internal citation and quotation marks omitted]). In the absence of clear and convincing evidence that the respondent suffers from a mental abnormality, (MHL § 10.03[i]), the law requires that he be released from continued Article 10 supervision "lest 'civil commitment' become a 'mechanism for retribution or general deterrence' (see State v. Frank P. 126 AD3d 150, 158 [1st Dept. 2015] [quoting Kansas v. Crane, 534 US 407, 412 [2002] and Kansas v. Hendricks, 521 US 346 [1997] [Kennedy, J. concurrence]). It is apparent that the respondent suffers from "a congenital or acquired condition, disease or disorder that affects [his] emotional, cognitive, or volitional capacity," but the State has not shown that those conditions, diseases, or disorders continue to "predispose[] him . . . to the commission of conduct constituting a sex offense" (see id.). The State has additionally failed to establish by clear and convincing evidence that his conditions, diseases, or disorders have resulted in the respondent having "serious difficulty" controlling his sex offending conduct (see id.).

For these reasons, the Court finds that the petitioner has not met their burden of proving that the respondent suffers from a mental abnormality within the meaning of MHL § 10.03(i). Therefore, the respondent's discharge petition is granted. The State's petition to have the respondent's SIST revoked is denied as moot.

Dated: January 8, 2026

Bronx, New York

Hon. Tara A. Collins, A.J.S.C.