Matter of Thomas P. v. State of N.Y.

 Petitioner, Thomas P., was served a notice on or about November 15, 2018 advising him of his right to petition for discharge. Having declined to waive his right to petition for discharge, Petitioner previously submitted a Petition pursuant to Mental Hygiene Law §10.09 verified August 7, 2018 and filed with the Oneida County Clerk August 16, 2018. The Attorney General responded via Verified Answer dated September 6, 2018. A stipulated Omnibus Order was dated September 13, 2018 granting the relief requested.An evidentiary hearing was held June 11, 2019. The State submitted the report of Dr. Kevin Burgoyne and offered his testimony. Petitioner submitted the report of Dr. Thomas Lazzaro and offered his testimony.The task of the Court is to consider the totality of this evidence and determine whether Thomas P. suffers from a “mental abnormality” as that term is defined in Mental Hygiene Law §10.03(i), and if so, whether he is a “dangerous sex offender requiring confinement”, as that term is defined in Mental Hygiene Law §10.03(e). Although Thomas P. filed the petition, the State bears the burden of showing by “clear and convincing evidence” that Thomas P. fits within these definitions.Both Dr. Burgoyne and Dr. Lazzaro agree Thomas P. suffers from a mental abnormality as that term is defined in Mental Hygiene Law §10.03(i). Dr. Lazzaro diagnosed Thomas P. as having Pedophilic Disorder (sexually attracted to males, not exclusive type), Hypersexuality, and Other Specified Paraphilic Disorder (Hebephilia).¹ Dr. Burgoyne diagnosed Thomas P. with Pedophilic Disorder (nonexclusive type, sexually attracted to males), Other Specified Paraphilic Disorder (pubescent males, in a controlled environment), Sexual Masochism Disorder (in a controlled environment), Other Specified Obsessive-Compulsive and Related Disorder (Hoarding and Body Dysmorphic traits), and Unspecified Personality Disorder (Provisional). He wrote:“During the current interview, [Thomas P.] asserted that his primary sexual attraction is for young males entering puberty and did not present with an adequate understanding that his deviant sexual interests include both prepubescent and pubescent males. Based on his history of collecting and creating pornography involving prepubescent males, associating with Pedophilic communities (i.e., North American Man/Boy Love Association [NAMBLA]; “Boylovers”), and his multiyear pattern of sexually abusing his prepubescent nephew, he qualifies for Pedophilic Disorder.”²Regarding Other Specified Paraphilic Disorder (pubescent males, in a controlled environment), Dr. Burgoyne wrote:“[Thomas P.] has had sexually arousing fantasies, urges, and sexual behavior involving pubescent males. This is differentiated from his Pedophilic Disorder by his recurrent and intense sexual fantasies and urges involving the targeting of slightly older boys who were just entering puberty. [Thomas P.] has clearly reported a recurrent and intense sexual attraction to young boys. At some points, he found this recurrent and intense sexual attraction unwanted and bothersome. He even tried to treat himself with medication that he obtained online from a foreign source. As was noted previously in this report, [Thomas P.] was found to possess a large amount of pornography that included images of boys ranging in age from 6-14. The victims in this pornography collection would have very likely included both prepubescent and pubescent boys. During the current interview, [Thomas P.] reported that his sexual focus is on males ranging in age from 12-16. He stated that male children around age 10-12 are “iffy,” but might be sexually attractive for him if they “look older.” In treatment, he has reported that his sexual focus in on boys who would likely have entered, but not completed puberty, as well as boys who may have completed puberty”.³On sexual masochism disorder (in a controlled environment), Dr. Burgoyne states:“[Thomas P.] has had recurrent and intense sexual arousal from the act of being humiliated, beaten, bound, or otherwise made to suffer, as manifested by fantasies, urges, or behaviors. During the current interview, [Thomas P.] reported continued sexual fantasies about being bound, anally penetrated, being spoken to in verbally humiliating ways, and having his genitals painfully removed. He reported deriving sexual arousal and pleasure from such fantasies and considered them positive for him. He also reported that his masochistic fantasies about bondage and genital removal had included fantasies in which he was removing the genitals of a child version of himself.”⁴Concerning Other Specified Obsessive-Compulsive and Related Disorder (Hoarding and Body Dysmorphic Traits), Dr. Burgoyne states:“This diagnosis is being maintained as [Thomas P.] has reported a history of serious problems with obsessive-compulsive behavior and it appears related to his predisposition to sexually offend (i.e., connected to his hypersexuality and paraphilic disorders).”⁵Concerning Unspecified Personality Disorder (provisional), Dr. Burgoyne states:“In this evaluator’s opinion, [Thomas P.] appears to present symptoms of a personality disorder. That is, he presents with a pattern of inner experience and behavior that deviates markedly from the expectations of his culture in terms of his cognition (e.g., ways of perceiving himself and other people) and his interpersonal functioning (e.g., method of interacting with others). It appears that [Thomas P.]‘s manner of perceiving, relating to, and thinking about his environment and himself has been inflexible and problematic since at least early adulthood. There is insufficient information for this evaluator to make a more specific diagnosis at this time. Psychological testing could help clarify this diagnosis and further guide Thomas P.]’s treatment.” ⁶The Court credits the diagnoses by Dr. Burgoyne and Dr. Lazzaro of Thomas P. having Pedophilic Disorder and Other Specified Paraphilic Disorder (Hebephilia), as well as the diagnosis by Dr. Lazzaro of Thomas P. having hypersexuality, as well as the diagnoses by Dr. Burgoyne of Thomas P. having Sexual Masochism Disorder, Other Specified Obsessive-Compulsive and Related Disorder (hoarding and body dysmorphic traits), and Unspecified Personality Disorder (provisional), and finds that the State has met its burden proving by clear and convincing evidence that Thomas P. suffers from a mental abnormality (It should be noted that Dr. Burgoyne noted the presence of hypersexuality as a factor which he considered in his evaluation⁷).Turning now to the question of whether Thomas P. is a dangerous sex offender requiring confinement, the Court must determine whether the evidence shows he has such a strong predisposition to commit sex offenses and such an inability to control this behavior that he is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility. Dr. Burgoyne administered the Violence Risk Scale-Sex Offender Version (VRS:SO) and scored Thomas P. at 45.91.⁸ Dr. Burgoyne states, “offenders with similar pretreatment scores as [Thomas P.] are estimated to recidivate at a rate of 31.3 percent over 5 years”.⁹ In assessing Thomas P.’s current level of dangerousness, Dr. Burgoyne also notes:“All the aforementioned issues combine to predispose [Thomas P.] to the commission of sexual offense behavior with young male children. He has a long history of having a stronger than usual urge for sexual activity and has multiple paraphilic disorders, most importantly involving sexual activity with prepubescent and pubescent males. His sexual preference for children is so strong that even his Sexual Masochism Disorder involves fantasies of himself as a child. This is important because [Thomas P.]‘s sexual behavior with victims has reportedly been driven, in part, by his belief that he was cognitively and emotionally connecting with them as a child himself, through shared child-like experiences.”¹⁰Dr. Burgoyne concludes: “[Thomas P.] is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that he is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.”¹¹ Dr. Burgoyne recommends a penile plethysmograph (“PPG”) exam and chemical therapy for Thomas P. as a treatment which will help him complete meaningful treatment.Dr. Lazzaro, the independent examiner, provided numerous tests including Static 99R score of 6 at the low end of the high risk range for sexual offense recidivism.¹² He also scored a 7 on the SVR-20, placing him in the moderate risk range for sexual offense recidivism. Dr. Lazzaro concludes Thomas P. is not a dangerous sex offender requiring confinement, and states:“However, again in this examiner’s opinion, to a reasonable degree of psychological and professional certainty, [Thomas P.] can now be safely returned to the community under a regimen of strict and intensive supervision and treatment (SIST). He has demonstrated satisfactory progress in sex offender treatment at both the Marcy Correctional Facility and the CNYPC, he has prepared a comprehensive relapse prevention plan, and he exhibits only 1 serious [sic] cognitive distortion. He continues to be, though, an emotionally disturbed man who will need both individual psychological treatment as well as individual and group sex offender treatment in the community. He has been, however, able to control his impulsivity and hedonistic features throughout his sex offender treatments. There also was no evidence that he is sexually preoccupied at this point.”¹³In testimony, Dr. Lazzaro noted Thomas P.’s cognitive distortion as believing children really like sex and this cognitive distortion has been with Thomas P. since his teenage years. Dr. Lazzaro concludes:“[Thomas P.] can now be safely returned to the community under a regimen of strict and intensive supervision and treatment (SIST). He has demonstrated satisfactory progress in sex offender treatment at both the Marcy Correctional Facility and the CNYPC”.¹⁴Dr. Lazzaro, like Dr. Burgoyne, also recommends PPG exam and chemical therapy for Thomas P.’s treatment. Also, Thomas P. needs to write out a comprehensive relapse prevention plan prior to release to Strict and Intensive Supervision and Treatment.Dr. Burgoyne details statements from Petitioner and Petitioner’s reports which indicate he does not fully understand his deviancy and spends considerable time focused on sexually deviant thoughts. Dr. Burgoyne references an ISP report dated December 28, 2018, which states in part,“He shared his current arousal logs with the group. In summary, he noted that he has an average of 5 sexual thoughts per day, and gets aroused (has a partial to full erection) 5-10 times per day [Thomas P.] appears to struggle to identify what thoughts are deviant, as he reported applying ‘thought switching’ to a situation where he looked at a photo of a woman and thought, ‘I wonder what she’d look like with a penis.’ [Thomas P.] reported in this instance becoming aroused to thoughts of boys who are 12 or 13, but look 15-17, then switching his thoughts to ‘a gay friend’ and the sexual activities they could do together” (emphasis in original).¹⁵Dr. Burgoyne also wrote: “During the current interview, [Thomas P.] reported ‘I still get triggered by children.’”¹⁶Thomas P. also testified in this proceeding and this Court found him to be very intelligent. He clearly discussed his sexual issues and the steps he has taken over 25 years to overcome his sexual deviance. He seems to this Court to be very credible and testified honestly struggling with his mental abnormality. He acknowledged he has more work to do but seems willing to do whatever it takes to treat his deviant sexual mental abnormality. He has cooperated in his programs at Central New York Psychiatric Center (“CNYPC”) and if there was a commendation available for someone who is trying to do the right things at CNYPC he would be first on the list to receive it of residents which have come before this Court.The Court credits Dr. Burgoyne’s report and testimony and finds the State has proven by clear and convincing evidence that Thomas P. suffers from a mental abnormality and currently has such a strong predisposition to commit sex offenses and such an inability to control his behavior that he is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.This Court acknowledges the matter of Richard Z. and the legislative intent of the Sex Offender Civil Confinement Treatment Program to provide “meaningful treatment” as set forth in Mental Hygiene Law §10.01(a), (b), and (f) to patients under this statute, and to protect the public from dangers of recidivism. The Petitioner has the right to have the opportunity for release, by receiving available treatment (such as chemical therapy) to reduce his respective desires to sexually act out (see Matter of State of New York v. Douglass S., Hon. J. Tormey Annual Review Hearing & Order, Index No.: CA 2008-2297 and this Court’s decision in the Matter of John P. v. State of New York, 2019 NY Misc. LEXIS 2308 [Sup. Ct., Oneida County 2019]). It is well established that chemical therapy has had a positive result with less than a 3 percent recidivism rate by sexual offenders being so treated (see Matter of the State of New York v. Richard Z., Hon. J. Tormey (Annual Review Hearing & Order, Index No.: CA 2007-2605, see Decision and Order dated August 13, 2015) Therefore, if the petitioner complies with a PPG test, completes a satisfactory comprehensive relapse prevention plan, seeks treatment for chemical therapy and is a viable candidate for such treatment the Court will consider his release on SIST following the Petitioner’s treatment with Leuprolide Acetate or any appropriate anti-androgen therapy medication which will substantially reduce the Petitioner’s potential for sexual recidivism.THEREFORE, it is herebyORDERED, that Thomas P. shall continue to be committed to a secure treatment facility designated by the Commissioner; and it is furtherORDERED, that Thomas P. shall continue to receive care and treatment pursuant to Mental Hygiene Law, Article 10, and that pursuant to Mental Hygiene Law §10.09(b), as amended and effective March 31, 2012, Thomas P. shall be provided, at least annually with written notice of the right to petition the Court for discharge, and waiver form, pursuant to Mental Hygiene Law §10.09, at least annually from the date of this decision; and it is furtherORDERED, that Thomas P. shall retain any and all other rights provided by Mental Hygiene Law Article 10, including the right to petition the Court in the future for discharge or release under strict and intensive supervision and treatment; and it is furtherORDERED, that if Thomas P. complies with a PPG exam he shall be considered by the Office of Mental Health for a course of chemical therapy treatment and if Thomas P. decides to participate with that medical treatment and completes a satisfactory comprehensive relapse prevention plan he may re-petition this Court for release to Strict and Intensive Supervision and Treatment as set forth in the findings above; and it is furtherORDERED, that copies of all post-commitment documents for treatment, evaluations, assessments, and raw data associated with Thomas P. after a finding of mental abnormality and an order of continued confinement shall be retained at the OMH Secure Treatment Facility which is housing him, and that pursuant to Mental Hygiene Law Article 47 and Section 33.16 as referenced in Article 10 of the Mental Hygiene Law, that Mental Hygiene Legal Service Shall have access to all the aforesaid documents; and it is furtherORDERED, that the Court record of this proceeding shall be sealed by the Oneida County Clerk’s Office, and such records shall be available only to the parties to this proceeding or upon further order of this Court, except that any and all Court decisions and orders shall be available for usage in the redacted form, as to Thomas P.’s identifying information (i.e., first name and last initial), by the parties and counsel to this proceeding for use in other Mental Hygiene Law Article 10 matters.Dated: June 18, 2019Utica, New York