Kenneth R. was charged in 2002 with two counts of Sexual Abuse 1st and two counts of Endangering the Welfare of a Child. The arrest was the result of sexual offenses involving a three-year-old male and a seven-year-old female. Kenneth R. pled guilty to Sexual Abuse 1st and was sentenced to five years incarceration and three years post-release supervision. On October 15, 2008, he was civilly committed pursuant to Mental Hygiene Law Article 10. On March 12, 2018, the Commissioner of the New York State Office of Mental Health forwarded to Kenneth R. a Mental Hygiene Law §10.09(a) Annual Notice — Right to Petition for Discharge and Kenneth R. indicated that he did not wish to waive his right to petition for discharge. On April 18, 2018, the Court (Hon. Louis P. Gigliotti), appointed Mental Hygiene Legal Service to represent Kenneth R. for the purposes of his annual review and appointed Dr. Debbie Green, Ph.D., to conduct an independent psychological evaluation of Kenneth R.Dr. Prince, Psy.D., for the Office of Mental Health, interviewed Kenneth R. on April 4, 2018. Based on this interview and a review of records, Dr. Prince issued a written report dated June 12, 2018. Based upon a review of relevant records and reports, including Dr. Prince’s evaluation, the Commissioner of the Office of Mental Health issued a determination, on June 13, 2018, that Kenneth R. was currently a dangerous sex offender requiring confinement, as defined in Mental Hygiene Law §10.03(e). Dr. Prince diagnosed Kenneth R. with Pedophilic Disorder (nonexclusive type, sexually attracted to both) and Alcohol Use Disorder (in a controlled environment) and concluded he was a dangerous sex offender requiring confinement.The Court has also reviewed the report of Dr. Green and Dr. Green interviewed Kenneth R. on July 11, 2018, as well as collateral interviews. Dr. Green diagnosed Kenneth R. with Pedophilic Disorder and Alcohol Use Disorder (moderate severity, in a controlled environment). Dr. Green concluded that Kenneth R. “has such a strong predisposition to commit sexual offenses, and such an inability to control his behavior that he requires confinement in a secure treatment facility.”1On May 7, 2019, Kenneth R.’s annual review hearing was conducted. The Office of the Attorney General offered the testimony of Dr. Prince. Mental Hygiene Legal Services offered the testimony of Dr. Green. The parties also stipulated to each doctors’ reports be admitted into evidence.The Court has reviewed the testimony of Dr. Prince, her written report, along with the written reports of Dr. Green and other psychiatric examiners and other exhibits received into evidence. The Court credits the conclusions offered by both Dr. Prince and Dr. Green and finds that Kenneth R. is a dangerous sex offender requiring confinement.However, questions arising as to Kenneth R.’s psychological status and effectiveness in participating in his therapy. Most prominent in the written reports and testimony was his failure to wear his hearing aides. Another significant issue which was not fully detailed in the written reports and was only elicited in the testimony was Kenneth R.’s mental capacity.The Legislature found “[t]hat recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management. Civil and criminal processes have distinct but overlapping goals, and both should be part of an integrated approach that is based on evolving scientific understanding, flexible enough to respond to current needs of individual offenders, and sufficient to provide meaningful treatment and to protect the public” (MHL §10.01(a) emphasis added). Further, “[t]he commissioner shall, for persons committed pursuant to this article, develop and implement a treatment plan in accordance with the provisions of section 29.13 of this chapter. The commissioner shall give due regard to any relevant standards, guidelines, and best practices recommended by the office of sex offender management.” (MHL §10.10(f)). “A state may only use civil process to confine a sex offender for treatment of ‘a ‘mental abnormality’ that makes it difficult, if not impossible, for the person to control his [or her] dangerous behavior’” (State v. Floyd Y., 22 NY3d 204, 209 [2013] citing Kansas v. Hendricks, 521 U.S. 346, 358 [1997]; Kansas v. Crane, 534 U.S. 407, [2002]). It is clear that if the State cannot provide meaningful treatment, the State may not detain an individual pursuant to Article 10. Such instances must be clearly separated from ones where a patient refuses treatment when meaningful treatment is available.Petitioner was placed in the “footsteps” program which is geared towards individuals with some cognitive impairments. However, at the times of evaluations, Kenneth R. was in the conventional track programs. Dr. Prince did not complete an IQ examination and did not know for certain if the facility had completed IQ testing of Kenneth R. or if they did when it had occurred. In her testimony, indicated that Kenneth R. was in the “low average range of intellectual functioning” and it was her opinion that the conventional treatment track was appropriate for the Petitioner. In fact, Petitioner has primarily been placed in the conventional track over the past twelve years despite indications in 2011 that he may have neuropsychological deficits that are affecting the right hemisphere of his brain. Dr. Green’s Report noted testing done by Dr. Lazzaro in 2011 which indicated Kenneth R. “displayed significant differences in his intellectual functioning across domains. Specifically, he performed in the Borderline range on the Processing Speed Index (78), and in the low range of Low Average on the Perceptual Reasoning Index (81) and Working Memory Index (80)” (see Report of Dr. Green, p. 12). No testing has been offered to the Court or appears to have been completed on Kenneth R. to determine if in fact such a deficit is present. There is clear and convincing evidence to this Court that there is a question of intelligence and cognitive impairments that may affect the ability of Kenneth R. to understand and participate in his treatment to make it meaningful. The Mental Hygiene Law compels the Court to determine if a patient has a “mental abnormality” and if so whether he may continue to receive in-patient treatment or be released on strict and intensive supervision and treatment in the community. With that responsibility comes the mandate of determining whether the patient has “meaningful treatment” available to him or her in confinement. Therefore, Kenneth R. shall receive neuropsychological testing (such as the Wechsler Adult Intelligence Scale — IV (WAIS-IV) or other proper intelligence testing), then OMH shall determine the cognitive deficit, if any, and shall provide treatment at the appropriate level for Kenneth R. to engage in programs or provide the assistance necessary for Kenneth R. to receive meaningful treatment at the facility.THEREFORE, it is herebyORDERED, that Kenneth R. shall continue to be committed to a secure treatment facility designated by the Commissioner; and it is furtherORDERED, that Kenneth R. 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, Kenneth R. 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 Kenneth R. 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 OMH shall review Petitioner’s intellectual abilities, by way of neuropsychological testing, to determine the appropriateness of the treatment track that he is presently in and make any necessary adjustments as determined from this Court ordered testing 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 Kenneth R. 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 Kenneth R.’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, 2019
