State v. Enrique T.State v. Enrique T.
Eric T. Schneiderman, Attorney General, New York City (Patrick J. Walsh and Steven C. Wu of counsel), for appellant.
Marvin Bernstein, Mental Hygiene Legal Service, New York City (Sadie Zea Ishee of counsel), for respondent.
OPINION OF THE COURT
Catterson, J.
In this proceeding in which the New York State Attorney General seeks civil management of a sex offender pursuant to
The respondent, Enrique T., is a 36-year-old convicted sex offender whose first conviction for a sexual offense occurred in 1990 when he raped and sodomized a four-year-old girl whom his mother was babysitting. He pleaded guilty to rape in the first degree and was sentenced to a prison term of 1 to 3 years.
On January 23, 2001, the respondent was arrested and charged with multiple counts of deviate sexual intercourse with a person under age 11, sodomy and sexual abuse. He pleaded guilty to two counts of sexual abuse in the first degree involving sexual contact with his girlfriend‘s seven-year-old daughter and forcing an 11-year-old girl to undress and allow him to fondle her breasts and vagina. The 2001 rape and sodomy came to light when the younger victim told her mother that she knew about sex because the respondent had forced her into numerous sexual activities, including putting his penis in her mouth and forcing it into her rectum. An investigation determined that between July 1, 2000 and August 31, 2000, the respondent subjected the victim to numerous forms of sexual contact against her will; during the same period, on at least three occasions, he forced a second child to undress and fondled her breasts and vaginal area. In subsequent sex offender counseling, the respondent admitted to the activity, and said he “groomed” the victims by buying them things and that he “fantasized” about them getting naked and in sexual positions; he said his “excuse” was that the older victim was a “big boned girl” who was “ready for sex” and the younger one was “getting there too so it‘s ok for her too.” He was sentenced on March 2, 2001 to a term of five years to be followed by five years’ postrelease supervision.
After the respondent was released to parole supervision on June 17, 2005, he absconded to Florida and tampered with his electronic monitoring unit, resulting in his parole being revoked on August 15, 2006. The respondent was returned to custody to complete his sentence. The respondent‘s scheduled release date of January 23, 2011 brought him within the purview of
When a detained sex offender is nearing release, the agency with jurisdiction over the offender is required to give notice of the anticipated release to the Attorney General and the Commissioner of Mental Health. (
If the preliminary review results in referral to a case review team, the team must review relevant medical and other records, and may arrange for a psychiatric examination. (
Within 30 days after the filing of a civil management petition, the court is required to conduct a hearing without a jury to “determine whether there is probable cause to believe that the respondent is a sex offender requiring civil management.” (
Subsequently, if, at trial, a jury finds that the respondent is a sex offender suffering from a mental abnormality, then the court
Civil commitment to a secure treatment facility is required if the court finds, upon 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.” (
In this case, on October 28, 2010, the Department of Corrections and Community Supervision (hereinafter referred to as DOCCS) gave notice to the Commissioner and the Attorney General pursuant to
The Attorney General submitted an evaluation report prepared by an OMH psychologist, dated January 11, 2011. Based on an interview of the respondent, review of his criminal history and records of DOCCS and the State Division of Parole, the
On or about May 26, 2011, the OMH psychologist testified at the respondent‘s probable cause hearing. The psychologist opined that the respondent had retained a deviant sexual arousal to young girls, or chronic pedophilia, and antisocial personality disorder, and that he suffers from a mental abnormality with serious difficulties in controlling such conduct. According to the psychologist, the respondent‘s language and repeated behavior indicated that he is still suffering from a disorder. The psychologist stated that she considered the respondent to be a danger to the community if released pending trial, absent information on where he would reside and go for treatment.
The court‘s written decision of June 7, 2011 was based on what it deemed to be the psychologist‘s “credible” testimony that the respondent suffers from conditions that “predispose him to commit sex offenses.” (31 Misc 3d 1237[A], 2011 NY Slip Op 51027[U], *5, *6 [2011].) Additionally, the court found the respondent dangerous based on testimony that he had violated his parole and had serious difficulty controlling his behavior; the “chronic nature of his deviant sexual interest[ ]” in young girls; and his “willingness to risk his personal, familial relationships to satisfy his sexual urges.” (Id. at *6, *7.)
However, the court stated it would continue the hearing on the issue of whether the respondent could be civilly confined pending trial in light of a federal injunction barring the Attorney General from seeking enforcement of the mandatory detention provisions of
The SIST report, completed by DOCCS and OMH on July 14, 2011, recommended 69 mandatory and special conditions of SIST that would apply to the respondent. The OMH report found the respondent “has demonstrated his sexually deviant and unpredictable behavior, as well as behavior that places the community at risk,” and, if released, he “will be monitored closely and placed on a curfew” and electronic monitoring. The community investigation by DOCCS concluded that it would approve proposed release to a supervised program and to a single room occupancy residence, and that the respondent would be required to register pursuant to the
In a supplemental decision dated August 4, 2011, the court concluded that
The court further noted that OMH had recommended community-based treatment for the respondent after trial, demonstrating that “[t]here is very little likelihood, if any,” that he would ultimately be found to be a “dangerous sex offender requiring confinement.” (34 Misc 3d at 346.) Thus, the court
The court, relying on United States v Salerno (481 US 739 [1987]), concluded that due process mandates a “specific finding of dangerousness” and a showing that “lesser conditions than confinement would not suffice to protect the community.” (34 Misc 3d at 321.) It observed that the Attorney General had failed in its burden to make such a showing, but that, in this case, no such finding could be made anyway as the SIST report made clear that the respondent could be safely released to the community under supervision.
Additionally, the court observed that
On appeal, the Attorney General asserts that Supreme Court erred because
For the reasons set forth below, we hold that a finding of probable cause to believe that an
Therefore, the fact that under
Initially, Supreme Court erred in attempting to determine, sua sponte, the facial validity of
Thus, the court erred in embarking on such an analysis, sua sponte, and we decline to compound the error by making any determination on the merits, save to observe that the court‘s decision clearly missed the mark on facial invalidation: The heavy burden of a challenger is to establish that “no set of circumstances exists under which the [statute] would be valid.” (Salerno, 481 US at 745.)
This the court did not do. Rather, the court appeared to accept that there is a category of
On appeal, the respondent does not assert more. He argues, inter alia, that
We confine our analysis to the respondent‘s assertion that the statute is unconstitutional as applied to him as well as to that category of
Any view that there are dangerous and nondangerous
These component elements of mental abnormality hew closely to the statutory language analyzed in Kansas v Hendricks (521 US 346 [1997]), which the United States Supreme Court held was sufficient to establish a finding of dangerousness based on a mental abnormality characterized by a “serious lack of ability to control behavior.” (Kansas v Crane, 534 US 407, 413 [2002].) Thus,
Consequently, whether ultimately confined or released conditionally under SIST, all
The fact that a sex offender requiring SIST is defined as “a detained sex offender who suffers from a mental abnormality but is not a dangerous sex offender requiring confinement” (
More significantly, the requirements of due process are met in providing for the civil commitment of sexual predators based on a “finding of dangerousness” resulting from a mental illness or mental abnormality that results in a “serious lack of ability to control behavior.” (Crane, 534 US at 409-410, 412-413 [internal quotation marks omitted]; see also Hendricks, 521 US at 357 [states may provide for civil detainment of people “who are unable to control their behavior and who thereby pose a danger to the public health and safety” (emphasis added)]).
Thus, as the Attorney General correctly asserts,
We therefore reject the argument, accepted by the court below, that the State may impose pretrial detention only if it shows there are no lesser conditions than confinement to assure the safety of the community. The respondent, relying on United States v Salerno, argues that the Supreme Court has never upheld pretrial detention unless the statute authorizing that detention included some individual inquiry to ensure that pretrial detention was imposed only on those individuals who could not be managed in less restrictive ways. This is simply incorrect. Salerno does not stand for the proposition that consideration of the least restrictive alternative is constitutionally mandated at the pretrial detention stage.
In Salerno, the Supreme Court determined the constitutionality of a federal statute, the
“a statute in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satisfaction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at any time in the future.” (Salerno, 481 US at 755 [Marshall, J., dissenting].)
The majority, thus, articulated a number of factors that were to be considered by courts in order to ensure that the act was consistent with due process. The “no lesser conditions” analysis was just one of the factors, but Salerno did not mandate a “lesser conditions” analysis as a fundamental constitutional requirement for all pretrial detention or confinement.
Further, the statute challenged in Salerno is easily distinguishable from the provision at issue here, since
In any event, the Supreme Court has consistently held that government‘s “regulatory interest in community safety can, in appropriate circumstances, outweigh an individual‘s liberty interest.” (Salerno, 481 US at 748-749 [authority of government is well established, in special circumstances, to restrain an individual‘s liberty prior to, or even without, criminal trial and conviction].) The question for a court to determine is whether the restriction of liberty is “impermissible punishment or permissible regulation.” (Id. at 747.)
The Supreme Court was particularly instructive in Schall v Martin (467 US 253 [1984]) as to a situation where a final disposition may be less onerous than pretrial detention. The statute at issue in Schall concerned juveniles detained before trial, who ultimately could demonstrate that detention posttrial is unnecessary. The Court held that “the final disposition of a case is largely irrelevant to the legality of a pretrial detention.” (467 US at 273 [internal quotation marks omitted].) More interestingly, the Court cited to the New York Court of Appeals’ observation that “caution and concern for both the [respondent] and society may indicate the more conservative decision to detain at the very outset, whereas the later development of very much more relevant information may prove that while a finding of delinquency was warranted, placement may not be indicated.” (Id., quoting People ex rel. Wayburn v Schupf, 39 NY2d 682, 690 [1976].)
As the Attorney General persuasively asserts, the Legislature‘s decision to provide, as a discretionary policy, the less restrictive option of SIST to certain dangerous respondents after trial depends on implementing a carefully tailored and individualized program. (
The recommendation for the respondent specified 69 mandatory restrictions and special conditions. These included: submission to physical inspection and search by parole officers whenever directed and random alcohol and drug testing; requirement of making a log of all daily events; obligation to submit television, phone, Internet and cable bills upon request; prohibition from leaving the state, entering school grounds, using on-line computer services that exchange electronic messages, and watching sexually explicit movies; prohibition from using a computer without permission, contact with children under age 18 unless approved by a parole officer, and ownership of puppies or kittens without permission; prohibition from visits, without prior approval, to pet stores, toy stores, parks, malls, bike trails, skating rinks, and bowling alleys; prohibition from possession of toys or children‘s clothes or cameras; prohibition from hitchhiking, drinking, driving a car without permission, and using a cell phone with a camera. The SIST, therefore, is effectively a form of detention.
It also requires evaluation of available treatment options with the input of qualified professionals as to implementing an effective program of outpatient treatment and supervision. Consequently,
The Supreme Court has held that “identification of the specific dictates of due process generally requires consideration” of (1) “the private interest that will be affected by the official action“; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards“; and (3) “the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Mathews v Eldridge, 424 US 319, 335 [1976].)
In this case, the private interest is weighty. However, the risk of an erroneous deprivation of such interest is limited by the statutory requirement of two levels of review prior to commenc
The respondent‘s claim that the New York State Constitution mandates that mental health patients must be treated in the “least restrictive setting,” and that
Finally, we do not agree with the respondent that the issue of constitutionality as applied to him will be moot upon his dispositional hearing. The respondent‘s mootness argument is based on the view that once a disposition is made, this Court would no longer need to decide whether the Attorney General sustained his burden of establishing that lesser conditions than confinement would not suffice to protect the public in the respondent‘s case. However, the issue raised by the respondent‘s as-applied challenge—and determined here in the negative—is whether the Attorney General has that burden at all with regard to
Accordingly, the order of the Supreme Court, Bronx County (Colleen D. Duffy, J.), entered on or about August 10, 2011, which, upon finding that the pretrial detention provisions of
Tom, J.P., DeGrasse, Richter and Manzanet-Daniels, JJ., concur.
Order, Supreme Court, Bronx County, entered on or about August 10, 2011, reversed, on the law, without costs, order directing respondent‘s unconditional release vacated, and the matter remanded for proceedings consistent with this decision and order.