A New York Sex Crimes Lawyer said that, the Respondent is the subject of a sex offender civil management proceeding pursuant to Article 10 of the Mental Hygiene Law (“Article 10”). As noted in more detail infra, the Respondent admitted that he suffered from a Mental Abnormality under the statute and was given an agreed-upon disposition of Strict and Intensive Supervision and Treatment (“SIST”) on September 15, 2009. On November 15, 2010, the State brought a petition to revoke the Respondent’s SIST placement and instead have him confined in a Secure Treatment Facility. That petition was opposed by the Respondent.
A New York Criminal Lawyer said that, on December 9, 2008, this Court, in a detailed decision, found that there was probable cause to believe that the Respondent was a detained sex crime offender who suffered from a mental abnormality pursuant to Article 10. The facts relevant to the Respondent’s history prior to that date are fully recounted in that decision. The most relevant aspects of that history will be briefly outlined here. The “instant offense” which resulted in respondent’s being eligible for sex offender civil management occurred in 1993 and led to a conviction in 1994 for Attempted Rape in the First Degree, Sexual Abuse in the First Degree and Burglary in the First Degree. In that incident, the Respondent had been on a rooftop where he was looking at a woman in an apartment across the street, using cocaine and masturbating. He entered the victim’s apartment through a window, took a knife from the apartment, got on top of the previously sleeping victim and placed her hand on his penis. The Respondent at this point indicated that he could not become aroused. The victim threw him off of her bed. He then fled from the apartment and took a purse from her. This was the only incident in which it was known, prior to the Respondent’s placement on SIST, that he had engaged in a sex offense involving physical contact with a victim.
A New York Sex Crime Lawyer said that, respondent did, prior to being placed on SIST, have an extensive history of exhibitionism. Typically, this would involve him masturbating in public places while his penis was partially exposed to public view. It is clear from his history that he has engaged in such conduct on a large number of occasions over an extensive period of time. Prior to this Court’s probable cause determination, he had been diagnosed as suffering from exhibitionism, voyeurism and cocaine dependence. This last diagnosis was found to be in sustained full remission. Prior to being placed on SIST, P.H. also had a long history of burglary, trespassing and theft related arrests and convictions.
A New York Sex Crimes Lawyer said that, in its probable cause decision, this Court found that the Respondent’s voyeurism and exhibitionism were compulsive and that he seemed incapable at that time, in particular, of controlling his urges to masturbate in public places. The Court credited the opinion of the State’s expert witness that although respondent had been known to engage in a contact sexual offense on only one occasion in 1993, that offense had directly arisen from his voyeurism and exhibitionism. The Court concluded: “Having no apparent ability to control his voyeurism and exhibitionism, the Court is hard pressed to conclude that he is able to control the kind of hands on contact offense which previously arose out of those identical behaviors.” The Court therefore found that, although respondent during his lifetime had been known to have committed only one sex crime which was covered under the statutory definition of a “sex offense” under Article 10, there was probable cause to believe he was a detained sex offender in need of civil management.
A New York Sex Crimes Lawyer said that, on September 15, 2009, the Court, the State and the Respondent entered into an agreed-upon disposition of the State’s Article 10 petition. Pursuant to this disposition, the Respondent admitted that he was a detained sex offender who suffered from a mental abnormality under the condition that he would be placed on SIST rather than confined. The Respondent was subsequently placed on and monitored under SIST. On November 15, 2010, the State brought a petition seeking to revoke the Respondent’s SIST placement and subject him to confinement. The State’s petition was based on the arrest of the Criminal Respondent on a charge of Assault in the 3rd Degree for an incident which allegedly occurred on August 11, 2010. As recounted in more detail infra, in that incident, the Respondent apparently placed his cell phone camera under the skirt of a woman in Union Square Park with the intention of photographing the victim. The victim, upon discovering the camera, threw it and then scuffled with the Respondent when he attempted to regain possession of his cell phone. The victim sustained physical injury in the course of that struggle.
The issue in this case is whether the State’s petition to revoke the Respondent’s SIST placement and instead have him confined in a Secure Treatment Facility should ne granted.
The court in deciding the case said that, under Article 10, a respondent who has been placed on SIST may have those SIST conditions revoked and be subject to confinement if specific procedural steps are followed and particular findings are made. Here, the State properly followed the requisite procedures for moving to subject the Respondent to confinement.
In order to revoke a respondent’s SIST conditions and confine the respondent, the Court must determine that the respondent is a “dangerous sex offender requiring confinement in accordance with the standards set forth in subdivision (f) of section 10. 07 [of Article 10]”. MHL § 10.11 (d) (3). The underlying standard is as follows:
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 offenses if not confined to a secure treatment facility, then the court shall find the respondent to be a dangerous sex offender requiring confinement. In making a finding of disposition, the court shall consider the conditions that would be imposed upon the respondent if subject to a regimen of strict and intensive supervision, and all available information about the prospects for the respondent’s possible re-entry into the community” MHL § 10.07 (f).
A number of other definitions from Article 10 and the Penal Law are also directly relevant to the question here. The first is Article 10’s definition of a “sex crimes offense”, the operative definition under the substantive standard outlined here. A crime is a “sex offense” under Article 10 if it falls within one of two specific offense categories. The first are a listing of specific sexual offense felonies. The second are a list of specific non-sexual offense felonies which are defined as “Designated Felonies” under the statute, if such Designated Felonies are “sexually motivated”. A “sexually motivated” felony “means that the act or acts constituting a designated felony were committed in whole or in substantial part for the purpose of direct sexual gratification of the actor”. MHL § 10.03 (s).
As this Court outlined in its decision in respondent, public masturbation of the kind the Respondent has repeatedly engaged in is the crime of “Public Lewdness” defined in § 245 of the Penal law. That crime is a Class B misdemeanor and is not defined as a “sex offense” under Article 10. The act of intentionally placing a camera under a victim’s skirt and secretly recording a victim’s sexual or intimate parts, however, is a Class E felony. It is the crime of Unlawful Surveillance in the Second Degree under Penal Law § 250.45 (4). The Respondent was not charged with this crime or an attempt to commit this crime in connection with the August 11, 2010 incident and the Court does not know why the district attorney’s office did not charge him with either of those crimes. However, the testimony of the victim at the hearing in this case, in the Criminal Court’s view, clearly indicated that the Respondent at least attempted to commit this crime.
Under the statute, in order to revoke the Respondent’s SIST conditions and subject him to confinement, this Court would have to find by clear and convincing evidence, inter alia, that the Respondent was likely to engage in a sex offense under the statute unless he were confined. The Court would have to find, in other words, that the Respondent was likely to engage in the kind of contact sexual offense he last engaged in 18 years ago or alternatively that he was likely to commit a non-sexual offense felony which was “sexually motivated” pursuant to the statute.
The Respondent, as noted supra, was not charged with Assault in the Second Degree. The Court agrees with the State that there was evidence at the hearing that he did, indeed, commit that crime however. That is, an inference could be drawn from the victim’s testimony that the Respondent attempted to commit the crime of Unlawful Criminal Surveillance in the Second Degree and in the course of that crime or in the immediate flight therefrom caused physical injury to the victim. The Court cannot agree however, that this crime, assuming it was committed by the Respondent, meets the definition of a “Sexually Motivated Felony” as that term is defined under Article 10.
There is no evidence that the injury which was caused to the victim was sexually motivated however. The injury occurred during a struggle between the Respondent and the victim over the Respondent’s cell phone battery. The evidence at the hearing clearly indicated that the Respondent’s motivation during his struggle with the victim, in the Court’s view, was to get the shattered pieces of his phone back. The sexual motivation definition cited supra requires that the “act or acts constituting a designated felony” were committed in whole or in substantial part for the purpose of direct sexual gratification. That language, in the Court’s view, by using the terms “act or acts constituting” connotes that all of the essential acts necessary to commit a sex crime were committed in whole or in substantial part for the purpose of direct sexual gratification.
Even if the Respondent did, arguably, commit that crime, the ultimate question here is not whether this crime was committed. The issue is whether the Respondent would be likely to commit such a crime in the future. There is certainly evidence of the Respondent’s predisposition to commit and his serious difficulty in controlling his behavior with respect to engaging in exhibitionism and voyeurism. What is much less clear is whether the Respondent would be likely to again commit the precise kind of crime like which occurred here – a struggle over a cell phone battery which resulted in a victim’s physical injury – were he again released into the community. Indeed, as outlined infra, one of the common-sense modifications to the Respondent’s SIST regimen which the Court will require in this case is that he be prohibited from possessing a cell phone with any photographic or video-recording capability in the future.
On that basic question, this Court agrees with the opinions which were expressed by the New York State Office of Mental Health psychologist, that the Respondent does not meet the criteria necessary for finding that he is a Dangerous Sex Offender Requiring Confinement. As he noted, the last and only time the Respondent committed a sexual contact offense under the statute was 18 years ago. That offense was aggravated by his cocaine use and homelessness at the time, both of which are no longer present. He was at liberty in the community for over a year between September of 2009 and November of 2010 with no evidence that he had committed any such offense. Dr. Field said that a recent study had found that less than 10% of persons who engaged in exhibitionism and voyeurism escalated to hands-on offenses. The psychologist during his testimony repeatedly made clear that he was not offering a favorable prognosis of the likelihood that the Respondent would not commit further acts of exhibitionism or voyeurism if not confined. He also simply said that the Respondent did not meet the criteria required by the statute. There is clearly no basis, in the Court’s view, given this record to conclude that it is “highly probable” that the Respondent will engage in a sex offense like the Attempted Rape he was convicted of in 1993 if he is placed back on a regimen of Strict and Intensive Supervision and Treatment.
There is also clearly no basis to believe that he would be likely to commit a “Designated Felony” which was “Sexually Motivated” under the statute if he were not confined. Such a prediction would require a finding that the Respondent was highly likely to commit a felony like robbery, burglary, arson or homicide, for the purpose of direct sexual gratification if he were again released into the community. There is no basis in this record to make such a prediction.
Accordingly, for the reasons stated below, the State’s petition is denied and the Respondent is ordered to be returned to SIST as indicated infra.
A person who has been placed on SIST may have those SIST conditions revoked and be subject to confinement if specific procedural steps are followed and particular findings are made. If you wish to revoke the confinement of an accused for the crime of rape, seek the representation of a New York Sex Crime Attorney and New York Criminal Attorney at Stephen Bilkis and Associates.