Matter of State of New York v. William J.

Appellate Division of the Supreme Court of New York

Matter of State of New York v. William J.

2017 NY Slip Op 5335, 151 A.D.3d 1890, 58 N.Y.S.3d 789

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 30, 2017

Docket576 CA 16-00794

StatusPublished

Cited by6 cases

This text of 2017 NY Slip Op 5335 (Matter of State of New York v. William J.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Matter of State of New York v. William J., 2017 NY Slip Op 5335, 151 A.D.3d 1890, 58 N.Y.S.3d 789 (N.Y. Ct. App. 2017).

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Appeal from an order of the Supreme Court, Oneida County (Louis P. Gigliotti, A.J.), entered April 6, 2016 in a proceeding pursuant to Mental Hygiene Law article 10. The order, among other things, committed respondent to the custody of the Commissioner of the New York State Office of Mental Health for confinement in a secure treatment facility.

It is hereby ordered that the order so appealed from is affirmed without costs.

Memorandum: Respondent appeals from an order revoking his regimen of strict and intensive supervision and treatment (SIST), determining that he is a dangerous sex offender requiring confinement, and committing him to a secure treatment facility (see Mental Hygiene Law § 10.01 et seq.). We affirm.

At the revocation hearing, respondent stipulated that he [1891]*1891violated his SIST conditions and that he suffers from a “mental abnormality” (Mental Hygiene Law § 10.03 [i]). Respondent contends that the evidence is legally insufficient to support a determination that he has “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” (§ 10.07 [fl). Specifically, respondent relies on the absence of any evidence that his SIST violations involved any sexually inappropriate conduct, and contends that, in light of the conflicting expert testimony regarding the level of danger that respondent poses to himself and the community, petitioner failed to meet its burden of establishing by clear and convincing evidence that respondent is a dangerous sex offender requiring confinement (see id.; § 10.11 [d] [4]). We reject that contention. We note at the outset that Supreme Court “was not limited to considering only the facts of the SIST violations” that prompted this revocation proceeding but, rather, it was entitled to “rely on all the relevant facts and circumstances tending to establish that respondent was a dangerous sex offender,” such as his underlying offenses and past SIST violations (Matter of State of New York v Motzer, 79 AD3d 1687, 1688 [2010]; see Matter of State of New York v DeCapua, 121 AD3d 1599, 1600 [2014], lv denied 24 NY3d 913 [2015]). We further note that, although respondent’s SIST violations were not sexual in nature, they “remain highly relevant regarding the level of danger that respondent poses to the community with respect to his risk of recidivism” (Matter of State of New York v Donald N., 63 AD3d 1391, 1394 [2009]; see Matter of State of New York v Smith, 145 AD3d 1445, 1445-1446 [2016]; Matter of State of New York v Jason H., 82 AD3d 778, 780 [2011]).

Here, petitioner’s expert testified that respondent suffers from antisocial personality disorder, substance abuse disorder, and severe cocaine and alcohol use disorder. Respondent’s instant SIST violations included the use of cocaine on at least two occasions within one month of release to the community. Respondent has violated the conditions of SIST release on two prior occasions, and those violations also involved cocaine use. Petitioner’s expert described respondent’s cocaine use upon his most recent release to be of an “escalating” nature, and opined that respondent is unable to curb his craving for cocaine and has demonstrated a lack of cooperation with, and resentment toward, substance abuse and sex offender treatment. Petitioner’s expert further opined that respondent’s sex offending behavior is “linked” with his cocaine usage and his sexual arousal has become conditioned to his cocaine usage. Moreover, every examiner who has evaluated respondent has concluded [1892]*1892that his sex offending behavior is linked to his substance abuse, and the hearing record contains numerous admissions by respondent that his sex offending behavior is linked to his cocaine use. Petitioner’s expert testified that, based on his Static-99 scores, respondent was at a moderate to high risk of recidivism, and respondent’s score on the Acute-2007 placed him in the high range risk of recidivism. Although respondent’s expert testified that respondent had “put some distance” between his cocaine use and his sex offending behavior, respondent’s expert also agreed that “[t] here’s no doubt that one could lead to the other.” We thus conclude that petitioner established by the requisite clear and convincing evidence that respondent’s substance abuse was linked to his sex offending behavior and that respondent is a dangerous sex offender requiring confinement (see Mental Hygiene Law §§ 10.07 [f]; 10.11 [d] [4]; Jason H., 82 AD3d at 779-780; Donald N., 63 AD3d at 1391).

All concur except Curran, J., who dissents and votes to reverse in accordance with the following memorandum.

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Appeal from an order of the Supreme Court, Oneida County (Louis P. Gigliotti, A.J.), entered April 6, 2016 in a proceeding pursuant to Mental Hygiene Law article 10. The order, among other things, committed respondent to the custody of the Commissioner of the New York State Office of Mental Health for confinement in a secure treatment facility.

It is hereby ordered that the order so appealed from is affirmed without costs.

Memorandum: Respondent appeals from an order revoking his regimen of strict and intensive supervision and treatment (SIST), determining that he is a dangerous sex offender requiring confinement, and committing him to a secure treatment facility (see Mental Hygiene Law § 10.01 et seq.). We affirm.

At the revocation hearing, respondent stipulated that he [1891]*1891violated his SIST conditions and that he suffers from a “mental abnormality” (Mental Hygiene Law § 10.03 [i]). Respondent contends that the evidence is legally insufficient to support a determination that he has “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” (§ 10.07 [fl). Specifically, respondent relies on the absence of any evidence that his SIST violations involved any sexually inappropriate conduct, and contends that, in light of the conflicting expert testimony regarding the level of danger that respondent poses to himself and the community, petitioner failed to meet its burden of establishing by clear and convincing evidence that respondent is a dangerous sex offender requiring confinement (see id.; § 10.11 [d] [4]). We reject that contention. We note at the outset that Supreme Court “was not limited to considering only the facts of the SIST violations” that prompted this revocation proceeding but, rather, it was entitled to “rely on all the relevant facts and circumstances tending to establish that respondent was a dangerous sex offender,” such as his underlying offenses and past SIST violations (Matter of State of New York v Motzer, 79 AD3d 1687, 1688 [2010]; see Matter of State of New York v DeCapua, 121 AD3d 1599, 1600 [2014], lv denied 24 NY3d 913 [2015]). We further note that, although respondent’s SIST violations were not sexual in nature, they “remain highly relevant regarding the level of danger that respondent poses to the community with respect to his risk of recidivism” (Matter of State of New York v Donald N., 63 AD3d 1391, 1394 [2009]; see Matter of State of New York v Smith, 145 AD3d 1445, 1445-1446 [2016]; Matter of State of New York v Jason H., 82 AD3d 778, 780 [2011]).

Here, petitioner’s expert testified that respondent suffers from antisocial personality disorder, substance abuse disorder, and severe cocaine and alcohol use disorder. Respondent’s instant SIST violations included the use of cocaine on at least two occasions within one month of release to the community. Respondent has violated the conditions of SIST release on two prior occasions, and those violations also involved cocaine use. Petitioner’s expert described respondent’s cocaine use upon his most recent release to be of an “escalating” nature, and opined that respondent is unable to curb his craving for cocaine and has demonstrated a lack of cooperation with, and resentment toward, substance abuse and sex offender treatment. Petitioner’s expert further opined that respondent’s sex offending behavior is “linked” with his cocaine usage and his sexual arousal has become conditioned to his cocaine usage. Moreover, every examiner who has evaluated respondent has concluded [1892]*1892that his sex offending behavior is linked to his substance abuse, and the hearing record contains numerous admissions by respondent that his sex offending behavior is linked to his cocaine use. Petitioner’s expert testified that, based on his Static-99 scores, respondent was at a moderate to high risk of recidivism, and respondent’s score on the Acute-2007 placed him in the high range risk of recidivism. Although respondent’s expert testified that respondent had “put some distance” between his cocaine use and his sex offending behavior, respondent’s expert also agreed that “[t] here’s no doubt that one could lead to the other.” We thus conclude that petitioner established by the requisite clear and convincing evidence that respondent’s substance abuse was linked to his sex offending behavior and that respondent is a dangerous sex offender requiring confinement (see Mental Hygiene Law §§ 10.07 [f]; 10.11 [d] [4]; Jason H., 82 AD3d at 779-780; Donald N., 63 AD3d at 1391).

All concur except Curran, J., who dissents and votes to reverse in accordance with the following memorandum.

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2017 NY Slip Op 5335, 151 A.D.3d 1890, 58 N.Y.S.3d 789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-state-of-new-york-v-william-j-nyappdiv-2017.

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