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A Brooklyn judge has ordered the state to release a sex offender from civil confinement despite the fact that the individual has a lengthy record that includes three arrests for sex-related offenses.

Supreme Court Justice Wayne Ozzi (See Profile) said the civil commitment statute was “never intended to be a catch-all to seek confinement of persons who may engage in generically bad, but non-sex offense conduct.” He said Shawn Young’s misconduct, at least that which landed him in a secure mental institution, involved behavior that was not overtly sexual.

State v. Young, 32874/2008, arose when the Attorney General’s Office sought to confine Young as a dangerous sex offender after the defendant repeatedly violated the conditions of his release.

Records show that Young was convicted in 2007 of forcibly raping an 18-year-old woman. Young denied raping the woman, or even having sex with her, and claimed that she was a prostitute who threatened to accuse him of rape unless he gave her money. In any case, he pleaded guilty to first-degree sexual assault and was sentenced to a two-year prison term.

When Young was nearing release from prison, officials evaluated him for possible civil management under a statute that allows the state to institutionalize sex offenders who suffer from a mental abnormality or place them under a regimen of “strict and intensive supervision and treatment (SIST),” which is essentially a particularly restrictive parole.

Young was placed on SIST, but he repeatedly violated the conditions.

In August 2011 he was arrested in Atlantic City for public intoxication and yelling profanities at women—transgressions that resulted in a six-month term for a parole violation.

Later, he was accused of having a relationship with and assaulting a 17-year-old girl. The attorney general brought a proceeding to revoke Young’s SIST status and involuntarily confine him, as a dangerous sex offender, in a mental institution.

Ozzi noted that Young has a history of 11 arrests, including charges of rape, promoting prostitution, sexual abuse and harassment, and that he was ticketed in prison for masturbating in front of a female corrections officer. He said that Young has repeatedly failed to comply with his SIST conditions and neglected to adequately participate in sex offender treatment programs.

Additionally, risk assessments indicate that Young has about a 25 percent chance of recidivating in the next five years.

Regardless, Ozzi said, Article 10 of the Mental Hygiene Law permits civil confinement only of those suffering from “a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.” He said the attorney general must present clear and convincing proof.

Here, the court said, the attorney general established that Young has a tendency to behave in an antisocial manner, but did not demonstrate “a strong predisposition to commit sex offenses.”

“In this instance, the respondent’s violations do not rise to such a level that mandates that the court find him to be a dangerous sex offender requiring treatment,” Ozzi wrote. “The narrow question before the court is whether the petitioner has demonstrated by clear and convincing evidence that the respondent is likely to commit a sex offense if he is not confined to a secure treatment facility. The court concludes that the petitioner has not met its burden.”

Ozzi said that if the Legislature intended to permit the revocation of SIST and placement of an offender in a treatment facility “on mere evidence of violation of any of the terms and conditions” of his or her release, “it would have said so explicitly.”

The judge ordered Young released from state custody and restored to SIST status.

Assistant Attorney Donald Leo argued for the state. Young was represented by Janet McFarland of Mental Hygiene Legal Services in the Second Department.