This Sex Crimes which resulted in respondent 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.
A New York Criminal attorney said that 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 Respondent 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 Strict and Intensive Supervision and Treatment (“SIST”), that he had engaged in a sex offense involving physical contact with a victim.
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, Respondent also had a long history of burglary, trespassing and theft related arrests and convictions.
In its probable cause decision, this Court found that the Respondent’s voyeurism and exhibitionism were compulsive and that Respondent 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 Respondent was a detained sex offender in need of civil management.
Thereafter, the Criminal 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. Later, 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 Respondent on a charge of Assault in the 3rd Degree. As recounted in more detail, 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 State’s petition was accompanied by a report by a psychologist employed by the New York State Office of Mental Health (“OMH”) doctor. The latter, however, contrary to the position of the State in its petition, opined that the Respondent did not meet the criteria for confinement under Article 10. Despite the report, the Court issued an order finding that there was probable cause to believe that Respondent was a dangerous sex crimes offender requiring confinement and ordered Respondent to be confined in correctional facility or Secure Treatment Facility pending a hearing. Those hearings then commenced on a number of dates and involved extensive testimony by multiple witnesses called by both parties. Respondent has been confined by the New York City Department of Correction during the pendency of these proceedings which have extended over more than five months.
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 crime 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).
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 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”. See MHL §§ 10.03 (p) & (f). 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”.
As the Criminal 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 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 Court’s view, clearly indicated that the Respondent at least attempted to commit this crime.
Unlawful Surveillance in the Second Degree, however, although a felony is not a “sex offense” under Article 10. The attempt to commit this crime, as noted immediately supra, is a Class A misdemeanor and is also not defined as a sex crimes offense under Article 10. Further, the crime of Assault in the Third Degree is not defined as a sex offense under the statute, even if that crime is sexually motivated. In short, neither public masturbation, lewd voyeurism, Unlawful Surveillance in the Second Degree, Attempted Unlawful Surveillance in the Second Degree nor Assault in the Third Degree are defined as sex offenses under Article 10. Thus, even if this Court were to find that the Respondent was likely to engage in any of these offenses, that finding would not allow this Court to revoke the Respondent’s SIST conditions and subject him to confinement. That is not, in any respect, a value judgment about how heinous such crimes are. Indeed, as this Court noted public masturbation and crimes involving voyeurism can cause great harm to their victims. Those crimes are simply not defined as sex offenses under Article 10.
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 Unlawful Surveillance aspect of this crime, in the Court’s view, can certainly be said to have been “sexually motivated”. If the Criminal Respondent was indeed seeking to take a picture or make a videotape of the sexual or intimate parts of the victim inside of her clothing that act can certainly be described as having been “committed in whole or in substantial part for the purpose of direct sexual gratification of the actor.”
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 sex crimes were committed in whole or in substantial part for the purpose of direct sexual gratification. For example, an offender who unlawfully enters a home to commit a sexual assault (and also to steal property) has a sexual motivation to commit a burglary.
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.
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