State v. Timothy EE.State v. Timothy EE.
Respondent pleaded guilty to rape in the first degree in 1991 and was sentenced to 10 to 20 years in prison. In 2010, in anticipation of rеspondent’s impending release, petitioner commenced this proceeding pursuant to Mental Hygiene Law article 10 seeking a determination that respondent is a dangerous sex offender requiring civil management. Following a jury trial conductеd pursuant to Mental Hygiene Law § 10.07 (d), respondent was found to be a detained sex offender who suffers from a mental abnormality. A disрositional hearing was then held pursuant to Mental Hygiene Law § 10.07 (f), and Supreme Court adjudicated respondent to be a dangеrous sex offender requiring confinement. Respondent appeals.
Contrary to respondent’s contention, the jury’s determination that he suffers from a mental abnormality is not against the weight of the evidence. Petitioner presented two experts, Paul Etu and Stuart Kirschner, both of whom had interviewed respondent and reviewed the relevant criminal and institutional records. Both Etu and Kirschner diagnosed respondent with
Kirschner testified that his diagnosis of sexual sadism was bаsed in part on respondent’s admission that, starting at age 17, he would frequent sex clubs to act out his rape fantasies in the role of a pain-inflicting dominator of consenting female partners. According to Kirschner, respondent grew tired of the rolе play and began to entertain the idea of perpetrating an actual rape, resulting in his 1991 conviction at the age of 29. Kirschner explained that respondent passed the 17-year-old victim riding her bicycle on a country road and decided to rape her. He turned his truck around, again drove past the victim and deliberately struck her with his passenger side-view mirror, causing her to fall off of her bicycle. Respondent stopped, feigned concern and offered to help the victim, who was injured and bleeding, in order to convince her to enter his truck. He then drove her to a remote wooded area, threatened her with a hatchet and an ice pick, bound her wrists behind her back and raped her twice. When he left her alone fоr a moment, she thought he was getting a weapon to kill her and she escaped into the woods, still nude, bound and bleeding. Additionally, in Kirsсhner’s opinion, respondent also exhibits voyeuristic tendencies, inasmuch as, prior to his incarceration, respondent exposed himself to others, including two six-year-old girls. On separate occasions in 1983, respondent attempted to kidnaр a 10-year-old girl and a 19-year-old woman and, at the time he was arrested on the 1991 rape charge, the police discovered that he possessed a collection of photos and videotapes of 15-year-old girls from his neighborhood that he viewed while masturbating. In more recent years, while in prison, respondent sought to obtain the high-school yearbook photo of his rape victim by posing as her stepbrother, he wrote a threatening letter to his ex-wife stating that he would find her and “deal” with her once he was released, and he attempted to obtain the home addresses of the sentencing judge and thе prosecutor.
Respondent’s expert, Joseph Plaud, also diagnosed respondent with antisocial personality disorder, but concluded that
Respondent also challenges Supreme Court’s determination that he is likely to be a danger to othеrs if not confined to a secure facility (see Mental Hygiene Law § 10.03 [e]). At the dispositional hearing, Etu testified that, based on respondent’s scores on a static actuarial risk assessment instrument and a sexual sadism scale, he has a very high level of sexual sadism and is in the high risk category for reoffending. Plaud, in contrast, testified that respondent did not exhibit a propensity to reoffend аnd, accordingly, is a good candidate for strict and intensive supervision and treatment. We accord deference tо the court’s decision to credit the opinion of Etu over that of Plaud, as “Supreme Court was in the best position to evaluate the weight and credibility of the conflicting psychiatric testimony presented” (Matter of State of New York v Timothy JJ.,
Spain, Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the order is affirmed, without costs.