In the Matter of State of New York v. Michael M.In the Matter of State of New York v. Michael M.
Emmett J. Creahan, Mental Hygiene Legal Service, Fourth Judicial Department, Buffalo (Margot S. Bennett of counsel), for appellant. I. The implementation and revocation of strict and intensive supervision and treatment deprived appellant of his
Eric T. Schneiderman, Attorney General, Albany (Frank Brady, Barbara D. Underwood, Andrea Oser and Nancy A. Spiegel of counsel), for respondent. I. This appeal became moot when the challenged order of confinement was superseded by a new order of confinement after an annual review of respondent’s condition. (People v Jian Jing Huang, 1 NY3d 532; Matter of George L., 85 NY2d 295; Matter of Chenier v Richard W., 82 NY2d 830; Matter of David C., 69 NY2d 796; Matter of Rueda v Charmaine D., 17 NY3d 522; Matter of Anonymous, 55 NY2d 1021; Matter of Hearst Corp. v Clyne, 50 NY2d 707; Matter of Anonymous v New York City Health & Hosps. Corp., 70 NY2d 972; Matter of S.J. v State of New York, 111 AD3d 1374, 22 NY3d 1128; Matter of Martinek v State of New York, 108 AD3d 1048.) II. The hearing evidence was legally sufficient to support the finding that respondent is a dangerous sex offender requiring civil confinement. (Heary Bros. Lightning Protection Co., Inc. v Intertek Testing Servs., N.A., Inc., 4 NY3d 615; Sage v Fairchild-Swearingen Corp., 70 NY2d 579; Matter of State of New York v Daniel F., 19 NY3d 1086.) III. The constitutional “least restrictive alternative” doctrine does not apply to dispositional determinations under
OPINION OF THE COURT
PIGOTT, J.
In this
I
Respondent Michael M. pleaded guilty to sex offenses including sexual abuse in the first degree (
Respondent moved to dismiss the
In September 2011, Supreme Court held a bench trial on two issues: whether respondent suffered from a mental abnormality
On November 15, 2011, Supreme Court imposed SIST, rather than confinement, and placed respondent under the custody and control of the New York State Department of Corrections and Community Supervision. A parole officer, assigned to supervise respondent, met with him on November 21 to review his SIST conditions.1
Respondent was required to attend a sex offender treatment program at Mid-Erie Counseling and Treatment Services (Mid-Erie) in Buffalo. On November 22, 2011, a mental health counselor at Mid-Erie met with respondent for an “intake appointment.” She scheduled two meetings for him on December 6: a 12:30 p.m. appointment for a chemical dependency orientation program, at Mid-Erie’s main office on the East Side of Buffalo, and a 2:00 p.m. appointment with herself for an initial sex offender assessment, at the office of the New York State Division of Parole in downtown Buffalo. Respondent attended the 12:30 p.m. program, leaving Mid-Erie at about 1:45 p.m. and telling staff that he was on his way to a 2:00 p.m. appointment with the counselor. As respondent did not have a car of his own, his mode of transportation was a public bus.
Respondent did not appear at the parole office for his meeting with the mental health counselor at the scheduled time. Reached on his cell phone, respondent, in the judgment of Mid-Erie, failed to provide a reasonable excuse for his tardiness. Soon after 3:00 p.m., respondent arrived at the office, where he blamed the counselor for scheduling two appointments so close in time and expressed displeasure at being on SIST. A “team meeting” at Mid-Erie was scheduled for the following week.
At the “team meeting” at Mid-Erie on December 13, 2011, counselors raised concerns about several aspects of respondent’s circumstances, including the missed appointment with his counselor on December 6, his loss of employment and independent residence, and his termination from the job program and eviction from Grace House. Team members also expressed concerns about respondent’s relationship with a girlfriend who suffered from certain “mental health problems,” but did not allege that the relationship violated any of respondent’s SIST conditions. Kenneth Duszynski, forensic program director at Mid-Erie, was present at the meeting. As he later recalled, respondent refused to answer questions and became angry. His parole officer found respondent defensive and sarcastic. At the conclusion of the meeting,3 Duszynski discharged respondent from the sex offender treatment program at Mid-Erie for failure to cooperate.
II
These events triggered a reevaluation of respondent under
Dr. Etu issued a report, opining that respondent was a dangerous sex offender requiring confinement. Dr. Etu noted that respondent had “displayed . . . deviant sexual interest in young, female children” and “acknowledged that he still [had] urges in this regard.” He further opined that respondent appeared “to have an ingrained sense of entitlement and a disdain for the therapeutic community,” which respondent perceived as antagonistic, rather than supportive.
On December 19, 2011, barely a month after Supreme Court had reached its SIST decision, the State petitioned for an order pursuant to
At a two-day hearing in March 2012, Supreme Court heard testimony from Dr. Etu, Mr. Duszynski, respondent’s parole officer, and his counselor. Dr. Etu opined, consistently with his report, that respondent was a dangerous sex offender requiring confinement. He testified that respondent had elaborated at his interview “how at times [sexual] urges would come on and how he would try to fight them off and basically [had] fought them off” but “was still having difficulty with that.” Dr. Etu further testified that respondent had told him that, although he now understood that it had been wrong to believe that his victims enjoyed sexual activity with him or “came on to him,” the idea still came “into his head once in a while.”
Dr. Etu further supported his conclusion by presenting evidence of “static and dynamic risk factors.” According to Dr. Etu, these factors, in particular the Static-99-R test, indicated that respondent had a 23% chance of “reoffending” within the next 10 years and a 46% chance of “reoffending” in his lifetime. Dr. Etu also testified that respondent “was resistant to counseling,” did not trust the counselors at Mid-Erie, and could not “work with them.”
Duszynski testified that respondent had been sarcastic and defensive at the December 13 “team meeting.” Asked why respondent had been discharged from Mid-Erie, Duszynski’s assessment was that respondent was not willing to follow “the rules of either treatment or supervision,” placing him “in a very high risk situation.”
On April 19, 2012, Supreme Court determined that the State had proved by clear and convincing evidence that respondent was a dangerous sex offender requiring confinement (see
“It is clear that the Parole Officer and therapists were put off by [Michael M.]. The animus projected toward [Michael M.] throughout this proceeding literally was pooling on the courtroom floor. What is the genesis of this animus? Repulsion over [Michael M.’s] criminal acts? Repulsion over [Michael M.]’s
appearance? Displeasure over his past criticism of Parole or Mid-Erie? A general reluctance to perform the work necessary to service, and perhaps benefit [Michael M.] and the community? We will never know. . . . There is a word for that: Callousness.”
Respondent perfected his appeal and additionally petitioned for discharge upon annual review (see
III
Respondent raises three arguments: that Supreme Court failed to apply “the least restrictive alternative doctrine” to his civil management; that the evidence at trial was legally insufficient to demonstrate clearly and convincingly that he was unable to control his sexual conduct to the extent that he was likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility; and that the manner in which his SIST was implemented and revoked violated his right to due process of law.
In arguing that a doctrine of the least restrictive alternative should apply in proceedings under
IV
Respondent’s second argument is based on legal insufficiency. Respondent contends that as a matter of law the evidence before Supreme Court was not sufficient to show, by clear and convincing evidence (see
To begin, the standards applicable in a proceeding seeking confinement pursuant to
The
The testimony in this case tended to show only that respondent was struggling with his sexual urges, not that he was unable to control himself. Dr. Etu testified that respondent was “having difficulty” with warding off urges to have sex with very young girls, but not that he was unable to do so. In fact, Dr. Etu recounted certain practical “tools” that respondent successfully used “to control [his] urges.” He would force his attention away from young girls he encountered or remove himself from their vicinity. The fact that respondent had difficulty warding off illicit sexual urges shows that respondent suffered at the time from “mental abnormality” within the meaning of
Notably, the record reveals nothing relevant to the issue of respondent’s sexual control that occurred between November 15, 2011, when Supreme Court imposed SIST rather than civil confinement, and April 19, 2012, when Supreme Court ordered confinement. What happened during this time was that respondent lost his job, and was evicted from his apartment for failure to pay rent; was late for one appointment; expressed, perhaps with some sarcasm, his distaste for SIST; was discharged from a job application program, with the result that he was evicted from transitional housing; and was discharged from a sex offender treatment program. Whatever else might be said about the personality traits or the social circumstances that led respondent so inexorably to homelessness and then to confinement, they do not give any support to the proposition that he had become unable to govern his sexual conduct.
The order of the Appellate Division should be reversed, without costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.
Chief Judge LIPPMAN and Judges SMITH, RIVERA and ABDUS-SALAAM concur; Judge READ dissents and votes to affirm for reasons stated in the memorandum at the Appellate Division (109 AD3d 1181 [2013]).
Order reversed, without costs, and matter remitted to Supreme Court, Niagara County, for further proceedings in accordance with the opinion herein.