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DECISION & ORDER AFTER SIST REVOCATION HEARING   On or about May 17, 2000, Geoffrey P. was convicted by a plea of guilty to Sex Abuse in the First Degree under Penal Law §130.65. Said conviction qualified him as a sex offender pursuant to Mental Hygiene Law §10.03. On or about February 1, 2011, following a jury trial wherein respondent was found to be suffering from a mental abnormality, the Honorable Nicholas De Rosa found respondent to be suffering from a mental abnormality and determined that respondent was a dangerous sex offender requiring confinement. After a period of confinement in a secure treatment facility, respondent’s status was downgraded, as he was adjudicated a sex offender who could be maintained in civil management under Mental Hygiene Law Article 10. As a result of said adjudication, respondent was released from the secure treatment facility and was placed on a regimen of strict and intensive supervision and treatment (SIST), under the jurisdiction of the New York State Department of Corrections and Community Supervision (DOCCS). On July 20, 2017, respondent received and signed a copy of the SIST Order, outlining conditions of his release. Condition #13 stated “I will not behave in such a manner as to violate the provision for any laws or Order of Protection to which I am subject, nor will I engage in behavior that threatens the safety or well-being of myself or others.” On December 22, 2018, allegations were made against respondent, which ultimately led to charges being filed against him for Forcible Touching in violation of Penal Law §130.52. After the alleged incident, but prior to charges being filed, a SIST warrant was issued and respondent was taken into custody. A hearing was conducted pursuant to Mental Hygiene Law §10.11(d) (4) on July 29, 30, and 31, 2019. The purpose of the hearing was to determine whether respondent is a dangerous sex offender requiring confinement as defined under Mental Hygiene Law §10.03(e). The State of New York was represented by Assistant Attorney General Breda Huvane, Esq., of the New York State Attorney General’s Office. Respondent was represented by Peter J. Mitchell, Esq., and Eugenia Brennan Heslin, Esq., of Mental Hygiene Legal Services. The State called three witnesses: Jamaar S., Parole Officer Brian Kenny, and Dr. Jeanne Martinez. The respondent called one witness: Dr. Leonard A. Bard. Given that there already has been a determination that respondent does suffer from a mental abnormality, the adjudication of mental abnormality is not an issue to be re-litigated at this SIST revocation hearing. Rather, the only issue to be determined by this Court is whether respondent is a dangerous sex offender requiring civil confinement or whether respondent can safely be released back into the community on Strict and Intensive Supervision and Treatment (“SIST”) (Mental Hygiene Law §10.11(d)(4); Matter of the State of New York v. Breeden, 140 AD3d 1649 [2016]). This Court is cognizant that civil confinement cannot be utilized as punishment or deterrence, but rather, must serve the objectives of providing the necessary treatment to sex offenders while also protecting the public against potential sex crimes (Mental Hygiene Law §10.01[a]). To support confinement, this Court must find, upon clear and convincing evidence, that respondent suffers from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility (Mental Hygiene Law §10.03[e]). THE STATE’S CASE Dr. Jeanne Martinez testified that respondent suffers from a mental abnormality, supported by the diagnosis of Pedophilic Disorder, attracted to males and females, nonexclusive; Antisocial Personality Disorder; and Cannabis Use Disorder. Dr. Martinez detailed how she believed respondent’s behavior, both currently and historically, meets the criteria of each diagnosis, and she opined that to a reasonable degree of psychological certainty, respondent is currently a dangerous sex offender requiring confinement. She was able to identify a detailed psychological portrait of respondent based upon her training and experience, her review of the official records, and the interviews she conducted. She noted that despite years of treatment, respondent has not internalized his treatment, has failed to develop an understanding of his own sexual deviance and sex offending cycle, and that his recent conduct demonstrates an expansion of his victim pool and his sex offense cycle. Historically, respondent’s victims have been children. When he was 13-years-old, his victims included a 5-year-old girl, and a 7-year-old boy that he sexually abused. He was placed in DSS custody at a group home after those offenses. While at the group home, he physically assaulted a 9-year-old boy. After being released from DSS custody, he sexually assaulted a 9- year-old girl. Several years later, at the age of 17 while he was on house arrest, respondent lured 3 girls into a secluded area where he sexually abused one of them. After serving his state prison sentence, he violated parole on two separate occasions. Regarding the current allegations, Jamaar S. testified that respondent entered his room without being invited and respondent engaged in nonconsensual sexual contact against him. Respondent placed his hands between the complainant’s legs and began to rub the area. Despite Jamaar S. attempting to move away from him, respondent persisted with his conduct and put respondent’s hand down his own pants while mentioning he was bi-sexual and performing acts on himself, consistent with masturbation. He testified that respondent attempted to give the complainant DVDs, food and socks, and told the complainant not reveal his sexual contact to anyone. There had been no prior relationship or contact between the two and neither had been in the other’s room prior to the incident. After the incident, Jamaar S. requested an order of protection and was relocated to a new housing unit. He indicated he didn’t push respondent away because he felt paralyzed. He also was not aware that the District Attorney was looking for him because he had been moved out of the housing unit because of the report of abuse, and the District Attorney did not speak to him prior to consenting to the case being adjourned in contemplation of dismissal. Parole Officer Brian Kenny testified that Jamaar S. advised the officer that respondent engaged in non-consensual touching of the complainant and that respondent engaged in conduct consistent with masturbation while he did so. In addition to considering those facts in her evaluation, Dr. Martinez testified regarding her review of the treatment records and her interviews of the respondent and his treatment providers. Respondent has no relapse prevention plan in place. He also initially underreported his answers on a “Thoughts and Fantasies Questionnaire” in that he claimed having fewer thoughts and fantasies about prepubescent children. Respondent’s treatment providers identified an unwillingness and/or inability to engage in appropriate consensual adult relationships in the community while on SIST, preventing him from developing and utilizing modalities to avoid inappropriate conduct. Respondent’s treatment providers advised him that this was an area respondent needed to work on. Despite being told so by his providers, and despite his providers advising him how important it is to do so, respondent continues to refuse to engage in romantic, consensual relationships with adults while on SIST. He also refused to discuss the allegations made by Jamaar S. with Dr. Martinez. Dr. Martinez opined that despite years of treatment, respondent has not internalized his treatment, he has failed to understand his sexual deviance and sex offender cycle, and he actually has expanded his sex offender pool. His serious difficulty controlling his predisposition is evident when viewed through his behavior, past and current, in that he continues to re-offend despite sanctions, despite sex offender treatment, and despite confinement both in state prison and through civil confinement. He re-offended in a very high risk setting where there was a high likelihood of detection. It is significant that respondent offended against a male adult stranger, who was younger and new to the housing unit. He utilized and adapted his offense cycle to include grooming tendencies to a vulnerable adult, expanding his victim pool and offense cycle. Dr. Martinez had grave concerns about this given that SIST has been focusing treatment on his interaction with children. The combination of his chronic disorders are still manifesting sexually even while in the community under the strictest of supervision: SIST. Despite the interventions utilized: incarceration, re-incarceration, hospitalization, and SIST, he cannot control his inappropriate sexual behaviors. THE RESPONDENT’S CASE Respondent established that the criminal case involving Jamaar S. was adjourned in contemplation of dismissal (“ACD”). Respondent argues that said resolution renders the charges a “nullity” and, therefore, provide absolutely no probative value. On cross-examination respondent sought to establish inconsistencies in the multiple statements to the different agencies that interviewed Jamaar S. Further, respondent sought to establish that Jamaar S. failed to react appropriately or severely enough, and that any conduct on the part of respondent was a “sexual overture” to which Jamaar S. “impliedly acquiesced.” Dr. Bard diagnosed respondent with pedophilic disorder, but he opined that respondent was not a dangerous sex offender requiring confinement. He reasoned that respondent was in the community for sixteen months without incident, which is indicative that he possesses sufficient control over his behavior. Further, respondent was gainfully employed and found an apartment. Pedophilia is an arousal to children, so if respondent committed a crime other than a sex offense against a child, even if it was a sexual assault on an adult, that offense has no bearing on the issue of respondent’s mental abnormality. Similarly, respondent underreporting his answers on the Thoughts and Fantasies Questionnaire is not probative because the underreporting simply was part of his treatment. The underreporting involved thoughts and fantasies about children, and respondent is alleged to have committed an offense against an adult. Dr. Bard also discounted the allegation by Jamaar S. since there never was a trial or an official determination. Dr. Bard declined to interview Jaamar S. In any event, Dr. Bard concluded that not every offense is indicative of an inability to control behavior, some people offend because they want to offend, not because they have an inability to control behavior. Dr. Bard opined, essentially, that respondent’s unwillingness to control his behavior is not a relevant factor because the law requires that respondent have an inability to control his behavior. He also found that there is no indication respondent currently suffers from anti-social personality disorder. During cross-examination, Dr. Bard confirmed that respondent told Dr. Bard that respondent no longer views himself as a pedophile. He further confirmed that respondent does not have a relapse prevention plan in place. Neither of these facts altered Dr. Bard’s opinion since these are concerns that Dr. Bard believes could be adequately addressed while respondent is being treated on SIST. FACTUAL AND LEGAL ANALYSIS When determining whether respondent is a dangerous sex offender requiring confinement, it is critical for the court to consider all relevant factors and to take into consideration the totality of the circumstances surrounding the matter. Respondent told his own expert that he no longer views himself as a pedophile, despite acknowledging that he experienced thoughts and fantasies about prepubescent children as recently as December, 2018. This is compounded by respondent’s failure to have a relapse prevention plan in place in order to provide him with protocols and modalities to address potential relapse. The allegations against respondent are that he entered Jamaar S.’s room and forcibly placed his hands between the legs and groin area and began to rub the area for the purpose of gratifying his sexual desire. Jamaar S. reported the incident to security on the date of the incident, provided written statements to the Newburgh City Police and PO Kenny, and subjected himself to an interview with Dr. Martinez. He also agreed to be interviewed by Dr. Bard, and he provided testimony at the instant hearing. Respondent accurately argues that the matter was adjourned in contemplation of dismissal upon the application of the District Attorney’s Office. However, respondent fails to recognize that said result is not a determination on the merits of the claim, and he fails to acknowledge or appreciate the significance that said action was done without anyone from the District Attorney’s Office even speaking to the complainant. Respondent’s conduct was adequately established to the satisfaction of this Court through testimonial evidence. This Court had the ability to observe Jamaar S. testify and this Court finds that his testimony was reliable, and any “inconsistencies” in his multiple statements to different agencies were consistent with someone telling the same story multiple times to different people, each of whom would ask for different details. The “inconsistencies” were not of such a nature and to such a degree as to render the testimony unbelievable or unreliable. Dr. Martinez opined that the defendant’s behavior with Jaamar S. is consistent with his inability to approach someone in a social setting for sexual gratification in a consensual relationship. Respondent has evolved his sexual offense cycle to include conduct consistent with “grooming” with the only victim pool with whom he had any meaningful ability to interact — adults. He continued to select a younger, vulnerable victim and “forced” unwanted, nonconsensual, sexual contact with said person under circumstances where there was a high risk of detection. Dr. Bard declined to interview Jaamar S., he failed to address respondent’s failure to have a relapse prevention plan, and never asked respondent what, if any, modalities respondent has developed to prevent him from allowing a thought to become a fantasy, despite respondent making such a distinction to Dr. Bard. Dr. Bard acknowledged that while respondent had “thoughts”, those did not rise to the level of a fantasy. Further, the allegations by Jamaar S., even if true, do not establish an inability to control sexually offending behavior against children. There is no requirement that respondent have an absolute inability to control sexually offending behavior before confinement may be ordered. Rather, confinement is required where there is such a degree of inability to control behavior that respondent would be likely to offend again (Matter of the State of N.Y. v. James F., 50 Misc.3d 690 [N.Y. Cnty. Sup. Ct. 2015]). It is important to recognize that it is respondent’s behaviors while under the most strict supervision (SIST), his unwillingness to engage in consensual adult relationships, and his refusal to develop a relapse prevention plan all have prevented him from developing the modalities necessary to prevent recidivism. Instead, respondent has utilized his experiences to expand his victim pool and hone his sex offense cycle. Respondent has demonstrated that he has such an inability to control his behavior that he is likely to be a danger to others and commit sex offenses. After consideration of the foregoing, as well as the arguments of the parties, this Court credits the opinion of Dr. Martinez and finds, upon clear and convincing evidence, that respondent is a dangerous 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 is likely to commit sex offenses, if not confined to a secure treatment facility. Based upon the foregoing, it is hereby ORDERED, in accordance with Mental Hygiene Law §§10.11(d)(4) and 10.07(f), respondent’s release on SIST is hereby revoked and he is to be committed to a secure treatment facility for care, treatment and control until such time as he no longer requires confinement. The above constitutes the Decision and Order of this Court. Dated: October 24, 2019 Goshen, New York

 
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