The opinion of the court was delivered by: Daniel P. Conviser, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Respondent is the subject of a sex offender civil management petition filed pursuant to Article 10 of the Mental Hygiene Law. A hearing was conducted before me on September 22, 2008 to determine whether probable cause exists to believe P.H. is a sex offender requiring civil management pursuant to M.H.L §10.06(k). The Petitioner called one witness, Dr. Erika Frances. Although the Court did not credit certain aspects of her testimony, as explained infra, the Court found her testimony to be credible The Respondent did not call any witnesses. For the reasons stated below, the Court finds that there is probable cause to believe the Respondent is a sex offender requiring civil management and also finds that the Respondent should be confined rather than released to supervision pending trial.
Dr. Frances, a psychiatric examiner employed by the New York State Office of Mental Health (OMH) since August 2007, testified that she is both a psychologist and psychiatrist currently evaluating and diagnosing sex offenders. Dr. Frances testified that she had previously worked in New York State at the Central New York Psychiatric Center (CNYPC) treating and evaluating sex offenders and had also worked at the Albany Correctional Facility, as the Acting Coordinator of the Mental Health Unit, where she did sex offender evaluation and provided some crisis intervention treatment while supervising a staff of eight. Outside New York State, Dr. Frances testified, she had evaluated female offenders and juveniles in California as part of her doctoral program and did community mental health work in New Hampshire. She further stated that she had been to over ten training sessions and conferences with experts in the field of sex offenders from March 2006 through August 2008.
Dr. Frances said she had evaluated or diagnosed sex offenders with disorders related to thought (i.e. schizophrenia), mood (i.e. depression, bipolar disorder), substance abuse (i.e. cocaine dependence), sex (i.e. exhibitionism, paraphilia) and personality (antisocial personality disorder). She stated that she had evaluated over 40 sex offenders pursuant to Article 10 and approximately 100 sex offenders in total. Additionally, Dr. Frances testified that she teaches developmental psychology at the Sage Graduate School and an undergraduate course in forensic behavioral science at the College of St. Rose.
With regard to Article 10 matters Dr. Frances's primary duty is to conduct psychiatric examinations and testify in court. Of the 40 Article 10 sex offenders evaluated by Dr. Frances approximately 30, in her opinion, suffered from a "mental abnormality". See M.H.L. §10.03(i). She stated that she had testified as an expert in psychology in both civil and criminal courts in New York State and that she had never been denied qualification as an expert in psychology. The Court, without objection, qualified Dr. Frances as an expert in the field of psychology.
The Respondent agreed to, and in fact did meet with Dr. Frances on June 16, 2008 at the Mid-State Correctional Facility for the purpose of being evaluated pursuant to Article 10. In preparation for her interview Dr. Frances stated that she had read a report prepared by the clinical staff, mostly social workers, who constituted the Case Review Team (CRT) in this matter.*fn1 In addition to the CRT report, and as part of accepted standard practice in her profession, Dr. Frances reviewed records, including a copy of the Respondent's rap sheet and a Pre-sentence Investigation Report from 1994, pertaining to P.H. prepared by the Department of Corrections, Division of Parole, and Department of Probation. Subsequent to her interview of P.H., Dr. Frances prepared a written report of her evaluation on June 18, 2008. This written report was introduced into evidence by the Petitioner.
In accordance with the Diagnostic and Statistical Manual, Fourth Revision, of the American Psychiatric Association (DSM-IV), P.H. was given an Axis I diagnosis. Dr. Frances explained that Axis I diagnoses encompasses "major mental disorders...like schizophrenia, depression, (and) substance related disorders."*fn2 The three Axis I diagnoses Dr. Frances deemed applicable to the Respondent were: Exhibitionism, Voyeurism, and Cocaine Dependence, Sustain Full Remission.
Dr. Frances testified that the diagnostic criteria for exhibitionism, as set forth in the DSM-IV, are a minimum six month period during which the patient experiences recurrent intense sexual arousal, fantasy, sexual urges or behavior that involve the individual exposing his genitalia to an unsuspecting stranger and the patient acts on the sexual urges or fantasies, or suffers marked distress or interpersonal difficulty. Dr, Frances went on to state that there were two types of exhibitionist. The first type feels guilty about their behavior and struggles to control it but is unable to. The second type of exhibitionist does not experience such humiliation and almost wants to be seen. P.H. was identified by Dr. Frances as being the first type.
The diagnostic criteria for voyeurism, testified to by Dr. Frances, are a minimum six month period of recurrent intense sexually arousing fantasies, sexual urges or behavior on the part of the patient involving the viewing of an unsuspecting person who is naked, in various stages of undress, or engaging in sexual activity, and that the patient acts on those urges or fantasies resulting in marked distress or interpersonal difficulty.
Finally, with regard to Cocaine Dependence Sustain Full Remission, Dr. Frances stated that the diagnostic criteria involved the patient's continued use of cocaine resulting in interpersonal difficulty. She stated that a patient given this diagnosis may express the desire to cease consuming the drug but is simply unable to control himself. The "sustain full remission" portion of the assessment means a patient has maintained a minimum period of sobriety of at least twelve months.
Dr. Frances described P.H. as bright, articulate, cooperative, forthcoming, and likeable. While he was able to provide insight into most aspects of his life, he struggled to make sense of his exhibitionism and voyeurism. With respect to substance abuse, the Respondent informed Dr. Frances that he started smoking marijuana in the ninth grade and subsequently started using pills and mushrooms. He stated that he started freebasing cocaine in 1981 and that between 1982 and 1993 he consistently used crack cocaine with brief intervals of sobriety. Dr. Frances stated that P.H.'s record revealed that he has been sober since 1993. Dr. Frances stated that she did not believe that this diagnosis was relevant in determining whether P.H. has a mental abnormality and that substance abuse did not cause the Respondent to commit the instant offense underlying the petition (a 1993 conviction for Attempted Rape in the First Degree, Sexual Abuse in the First Degree and Burglary in the First Degree). She did say, however, that she believed that there was a connection between P.H.'s substance abuse and the offense underlying the instant Article 10 petition in that crack use leaves people very uninhibited.
Recounting what P.H. had told her about the instant offense, she said that P.H. had been on a rooftop for several days watching his victim through a window while she was in her underwear and masturbated while watching her. He had fantasies about her and was under the influence of crack at the time.
Dr. Frances also noted that P.H. had exhibited exhibitionist behavior prior to using crack, and that addressing the Respondent's substance abuse issues would not result in P.H. ceasing to engage in exhibitionist or voyeuristic behavior. She testified that "with many exhibitionists they escalate to hands-on offenses. There's no time limit as to when that will happen."*fn3
In discussing his sexual history with Dr. Frances, the Respondent said he started having sex with college-aged women while he was in junior high school. He started to date in the ninth grade, but did not have a serious girlfriend until he was 21 years old. She was 17 years old when they started dating and they were together for four years. The Respondent stated that it was his only meaningful relationship. During the time he was seeing his girlfriend P.H. stated that he did have sexual relationships with other women. P.H.'s last sexual contact was in 1993. Dr. Frances explained that his detachment from relationships with women helped to explain why he engaged in exhibitionism and voyeurism from a distance.
Dr. Frances testified that P.H. is aware of the interpersonal difficulties he has encountered by virtue of not having pursued any meaningful relationships with women. He further informed Dr. Frances of his preference for masturbating over "putting any serious effort into a relationship."*fn4 Dr. Frances then stated that she discussed with P.H. each of his prior criminal convictions. The first offense they discussed was a 1979 public lewdness offense where the Respondent said he was working as a parking lot attendant across the street from a hospital. The Respondent stated that he found it sexually arousing to look up the skirts and see the underwear of the nurses who would park their cars in the lot. P.H. stated that he started to masturbate in the attendant's booth. Eventually the Respondent started to masturbate while helping nurses to their car, but hid his genitalia from them with his jacket. One of the nurses observed the Respondent masturbating and he was subsequently arrested.
The Respondent was dating the above-mentioned serious girlfriend during the time he was arrested in 1979. He further stated that his girlfriend went to visit him while he was incarcerated but that he felt too embarrassed to explain to her the circumstances surrounding his arrest. The Respondent also informed Dr. Frances that he was so ashamed that he never saw his girlfriend again.
The Respondent was arrested in 1980 when he was caught masturbating in a library in New Jersey. Though only arrested for the one incident the Respondent stated that over a nine month period he would go to various libraries and seek out unsuspecting women and masturbate at least two times per week. The Respondent would then partially expose himself covering his genitalia with an item of clothing and proceed to masturbate while standing in one of the aisles. The Respondent stated that he chose libraries because they afforded him the opportunity to be more discreet. Dr. Frances stated that this was relevant to her diagnosis of the more passive type of exhibitionism experienced by P.H. in that it demonstrated his desire not to get caught. The Respondent was again arrested in 1981 for the same conduct.
Dr. Frances testified that the rap sheet indicated P.H. had been arrested on 27 occasions in total. The Respondent stated that the offenses he committed between 1984 and 1985 were fueled by his need to finance his drug abuse. With respect to his arrest from June 31, 2003 the Respondent told Dr. Frances that he became sexually aroused after having observed a woman near a department store in Manhattan who was wearing a skirt. The Respondent covered himself with an article of clothing and was caught masturbating. At the time of that offense the Respondent had only been released on parole for three weeks.
In November of 2004 the Respondent was again released on parole. He informed Dr. Frances that upon being released he secured gainful employment while living in a shelter. He also stated that he was rebuilding his relationship with his family and taking classes to address his anger management issues while receiving sex offender treatment mandated by the Division of Parole. However, on July 26, 2005 the Respondent was again arrested in Manhattan for masturbating in public while observing a female he found to be attractive. Again, the Respondent tried to obscure his actions with an article of clothing.
In addition to his sexual offense history, Respondent has a long history of burglary, trespassing and theft related arrests and convictions. According to criminal history information introduced into evidence as part of Dr. Frances's report, P.H. was arrested for burglary in 1984 with no reported disposition, convicted in 1985 of receiving stolen property, convicted in a separate 1985 incident of petit larceny, convicted of petit larceny in 1986 after being arrested for burglary, convicted in a second 1986 incident of criminal possession of stolen property after being arrested for burglary, convicted of criminal trespass in 1987, convicted of burglary in 1988, convicted in a second 1988 incident of criminal ...