This is a proceeding wherein the State of New York moves to establish probable cause to believe that K.A. is a “sex offender requiring civil management” pursuant to Mental Hygiene Law (“MHL”) Article 10, §10.06(k). K.A. opposes the motion.
Mental Hygiene Law Article 10 provides that after a case review team, consisting of at least two mental-health professionals, finds that an individual is “a sex offender requiring civil management,” the Attorney General may file a sex offender civil management petition in Supreme Court. The petition must “contain a statement or statements alleging facts of an evidentiary character tending to support the allegation that the respondent is a sex offender requiring civil management.
After a burglary petition is filed, the act directs that Supreme Court “shall 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.”
At the conclusion of the hearing, if the court determines that probable cause has not been demonstrated, it must dismiss the petition and respondent will be released.
If, however, probable cause has been established, what will happen is as follows: “the court shall order that the respondent be committed to a secure treatment facility; the court shall set a date for trial; and, the respondent shall not be released pending the completion of such trial.”
“The jury, or the court if a jury trial is waived, shall determine by clear and convincing evidence whether the respondent is a detained sex offender who suffers from a mental abnormality. The burden of proof shall be on the attorney general. A determination, if made by the jury, must be by unanimous verdict.”
“If the jury, or the court if a jury trial is waived, determines that the respondent is a detained sex offender who suffers from a mental abnormality, then the court shall consider whether the respondent is a dangerous criminal sex offender requiring confinement or a sex offender requiring strict and intensive supervision. If the court finds by 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 crimes offenses if not confined to a secure treatment facility, then the court shall find the respondent to be a dangerous sex offender requiring confinement.”
On 10 December 2007, the court held a probable cause hearing related to K.A., who is now being held at Manhattan Psychiatric.
At the outset, the State proffered two certificates of conviction, which were received into evidence without objection. K.A.’s most recent conviction, obtained in July 1982 after a non-jury trial, was for two counts of Sodomy in the First Degree, and seven other counts, including Sexual Abuse in the First Degree and two counts of Endangering the Welfare of a Child.
For the above mentioned sex crimes K.A. was ultimately sentenced to 15 to 30 years. He served 23 years, plus the time he first spent at Kirby and then at Manhattan Psychiatric. The State also introduced the Grand Jury indictment underlying the 1982 convictions into evidence to show that some of the counts consisted of crimes against a child under the age of 11.
The State further established that in July 1972, K.A. pled guilty to four counts of Impairing the Morals of a Minor.
The State called JJ, M.D., a forensic psychiatrist, Board Certified in both Psychiatry and in Forensic Psychiatry, who is employed at Kirby and who evaluated K.A. in accordance with MHL Article 10. He explained that in advance of meeting with K.A., he reviewed all documents relating to the case and, after the interview, prepared a report. He testified that he spent approximately three hours total with K.A, one hour of which was specifically dedicated to MHL Article 10 analysis. He stated that in response to questioning about his convictions, K.A. admitted to having had oral sex with “young” victims—in one case “as young as ten years old.” K.A. told Dr. JJ that at first he did not think it was wrong to have these contacts with young children, but now after years of treatment, he knows his conduct was a “no-no.”
Pedophelia is defined by Dr. JJ as: a gun was not utilized.
“a disorder that is characterized by persistent attraction to children who are prepubital, and that those preoccupations either cause extreme discomfort for the patient or leads the patient to commit, engage in pedophilic behavior. In other words, it’s having sex with minors. And those preoccupations have to be present for at least a six month period to rise to the level of the diagnosis.”
Dr. JJ concluded that pursuant to the Diagnostic and Statistical Manual, Fourth Revision (DSM IV) of the American Psychiatric Association, K.A. suffers from Axis I disorder of Pedophelia. He also concluded that K.A. met “at least two criteria” relevant to Axis II disorder of “rule out Antisocial Personality Disorder.”
Dr. JJ further testified that he confirmed the State’s results for the STATIC 99 test, which is “an actuarial risk assessment instrument that is used for sex offenders.” Dr. Hicks pointed out that the STATIC 99: “is a scale that has ten questions and each item is scored with reference to a manual. You add up a total score which is then divided among different criminal risk categories, low risk, medium risk and high risk. So, for example, a score of 6 on the STATIC 99 falls in the category of high risk offenders who have demonstrated a recidivism rate of 39 percent in other words being rearrested for another sex offense within five years.”
He concluded that K. A.’s score of six on the STATIC 99 was an indicator of his high risk and dangerousness to society and he observes that he continues to manifest signs of Pedophelia and antisocial personality traits and that the conditions that led him to commit those crimes have not changed.
Dr. JJ acknowledged that if K.A. were to be released from Manhattan Psychiatric he would remain on parole until 2012, and that K.A. is registered under the Sex Offender Registration Act (“SORA”). He explained that the restrictions while on parole and the demands imposed on registered sex offenders pursuant to SORA were quite strict, including living in approved residences, adhering to reporting requirements and enlisting in sex-offender treatment programs. These are not white collar crimes.
Pursuant to MHL § 10.06(k), the court must now ascertain whether there is “probable cause” to believe that K.A. is “a sex offender requiring civil management” and whether he should be held for trial. The court must further make findings with respect to whether K.A. “is sufficiently dangerous to require confinement and [whether] lesser conditions of supervision will not suffice to protect the public during the pendency of the proceedings.
MHLS urges adoption of a high standard of proof. It argues that in the context of Article 10 of the MHL, a showing of “probable cause” should require establishing that it is “more likely than not” that an offender requires civil management. MHLS rejects the definition of “probable cause” that has been equated with “reasonable cause,” emphasizing that the lesser standard of inquiry has applied in contexts when police officers must make quick “snap” decisions on whether or not to arrest, or when judges, without the benefit of anything more than the testimony of an investigating officer, must sign arrest warrants.
In the case at bar, there is significant information and data for the court to consider. MHLS asserts that a “more probable than not” standard should apply.
MHLS cites several cases in which the “more probable than not” standard was adopted in conjunction with “probable cause” analysis. In People v. Mercado, the Court of Appeals concluded that people have an expectation of privacy in a bathroom stall. Consequently, it had to be “more probable than not” that criminal activity was taking place before there could be any intrusion into the stall. Also, People v. Carrasquillo, it was held that in passing on whether there was probable cause for an arrest, the court consistently have made plain that the basis for such a belief must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is the perpetrator akin to People v. Radoncic.
Relying on State v. Pedraza, the State urges use of less stringency. In Pedraza, the court adopted the standard applicable at a preliminary hearing, namely, whether there exists “reasonable cause to believe,” in the context of a MHL Article 10 proceeding, explaining that all the court is inquiring into at this early stage is “whether there exists sufficient evidence to proceed to trial.” Domestic violence could be charged.
In the case at bar, the “reasonable cause” standard must be applied in assessing probable cause. It is clear from the statutory scheme that when the legislature intended for a heightened standard of proof, it explicitly prescribed its applicability. The purpose of an Article 10 probable-cause hearing, moreover, is simply to ensure that there is a basis for holding respondent for trial, at which time a heightened standard of inquiry will apply. It would not make sense at this preliminary stage to impose a high standard of proof similar to the one that will ultimately be used by the finder of fact after presentation of all of the evidence.
Because the State has established that there is reasonable cause to believe (1) that K.A. suffers from a mental abnormality, and (2) that he “is sufficiently dangerous to require confinement” and “lesser conditions of supervision will not suffice to protect the public during the pendency of the proceedings,” probable cause has been established and K.A. will be held for trial.
There is reasonable cause to believe that K.A. suffers from a mental abnormality. The State presented substantially unrefuted evidence that K.A., a sex offender, is a pedophile. Dr. JJ further concluded that K.A. manifests antisocial personality traits: he violates social norms and is deceitful. Based on the evidence, there is reasonable cause to believe that K.A. suffers from a congenital or acquired disorder that affects his emotional, cognitive or volitional capacity.
The State has established that there is reasonable cause to believe that K.A. “is sufficiently dangerous to require confinement” and that “lesser conditions of supervision will not suffice to protect the public during the pendency of the proceedings.” Dr. JJ confirmed the State’s scoring of the STATIC 99 and stated that K.A.’s score of six fell into the category of “high risk.” He also opined that K.A. “Would pose a significant risk of danger to others if he were not in a hospital setting.”
Further, Dr. JJ testified that K.A. has not benefitted from treatment and that he poses a risk of repeating the dangerous criminal actions of his past. Based on this evidence, in the interests of protection of the public, K.A. must be confined pending a trial. Releasing K.A. now would undermine the whole purpose underlying MHL Article 10.
Accordingly, the court orders that there is probable cause to believe that K.A. is a sex offender requiring civil management and that he shall not be released pending his trial.
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