Appeal from an order of the Supreme Court, Lewis County (Charles C. Merrell, A.J.), entered November 21, 2008 in a proceeding pursuant to Mental Hygiene Law article 10. The order determined that respondent is a dangerous sex offender requiring confinement and committed respondent to a secure treatment facility.
The opinion of the court was delivered by: Fahey, 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 Official Reports.
PRESENT: MARTOCHE, J.P., CENTRA, FAHEY, PERADOTTO, AND PINE, JJ.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
In this appeal from an order determining that he is a dangerous sex offender requiring confinement pursuant to Mental Hygiene Law article 10, respondent raises what is, in the context of this proceeding, the unique issue whether the order should be reversed because he was denied effective assistance of counsel. For the reasons that follow, we agree with respondent that he was entitled to effective assistance of counsel, but we reject his contention that he was denied meaningful representation. We therefore conclude that the order should be affirmed.
Respondent is a repeat sex offender with a lengthy and active history of sexual crimes. In 1990, respondent was convicted upon his plea of guilty of sodomy in the first degree (Penal Law former § 130.50) for placing his mouth on the penis of a six-year-old boy. The presentence investigation with respect to that conviction included interviews of multiple children that had been in the company of respondent and revealed that respondent may have engaged in other inappropriate behaviors. Respondent suggested as much in a statement that he gave to the police in which he intimated that the sexual abuse to which he was subjected as a child was responsible for his sexual contact with the victim of the sodomy and what respondent characterized as "several either inappropriate or misunderstood situations with several other [boys]." Respondent was released to parole supervision in November 1993.
In August 1994, respondent's parole was revoked. The revocation concerned respondent's alleged acts of a sexual nature with clients of a nursing home at which respondent was employed. The violation release report indicated that respondent had been having anal intercourse each night with a male resident of the nursing home and that the subject resident lived at the home because he was incapable of caring for himself in the community. Respondent was again released to parole supervision in May 1995, and he was discharged therefrom upon his maximum expiration date in November 1995.
In April 1996, respondent was arrested and subsequently charged with 15 counts of sexual abuse in the first degree (Penal Law § 130.65 ), five counts of endangering the welfare of a child (§ 260.10 ) and one count of resisting arrest (§ 205.30). The indictment alleged that, in November and December 1995, respondent used his hand to rub and/or grab the penis of an eight-year-old boy; that, in May 1996, respondent rubbed his hand on the vagina of a four-year-old girl; and that, on two occasions in January 1996, respondent touched the penis of a 10-year-old boy. Respondent was subsequently convicted of five counts each of sexual abuse in the first degree and endangering the welfare of a child, and he was sentenced to a total of 12 years in prison. This time, respondent was not released to parole supervision. In April 2008, as respondent neared the end of his sentence, petitioner filed a civil management petition pursuant to Mental Hygiene Law article 10. The petition was supported by the report of a licensed psychologist with the New York State Office of Mental Health, who determined that respondent suffered from nonexclusive pedophilia, i.e., respondent was sexually attracted to both males and females, as well as antisocial personality disorder. That psychologist also used two actuarial assessment tools to determine respondent's risk of reoffending: the "Static-99" tool, under which respondent scored in the high risk range that predicted a 44% rate of violent recidivism over five years and a 51% rate of recidivism over 10 years, and the "MnSOST-R" tool, which stated that respondent had a 57% risk of reoffending within a six-year period. The psychologist also noted that respondent had never completed a sex offender treatment program despite being offered such a program eight times. Respondent's rationale for not completing a sex offender treatment program was that respondent would have to admit the past allegations against him, which he adamantly denied.
A probable cause order with respect to respondent was issued on April 16, 2008, and he was committed to a secure treatment facility during the pendency of this proceeding. The attorneys for the parties later stipulated that neither would observe any examination conducted by the other party's psychiatric examiner. On June 20, 2008 and at respondent's request, Supreme Court issued an order for an "independent evaluation" of respondent, appointing respective psychiatric examiners for petitioner and respondent (see Mental Hygiene Law § 10.06 [d], [e]).
The matter proceeded to a trial on the issue whether respondent suffers from a mental abnormality (see Mental Hygiene Law § 10.03 [i]; § 10.07 [d]). The jury returned a verdict finding that respondent has a mental abnormality that predisposes him to commit further sex offenses and that respondent has serious difficulty in controlling such conduct. The court subsequently conducted a bench trial on the issue of respondent's dangerousness to determine whether to confine respondent or to place him on a regimen of strict and intensive supervision and treatment (see § 10.07 [f]; § 10.11). By order entered November 21, 2008, the court found that respondent has a mental abnormality with a strong predisposition to commit sex offenses, along with an inability to control his behavior, and that he is likely to be ...