On or about April 12, 1993, the respondent Ted B. was convicted of five counts of Rape in the First Degree, five counts of Sodomy in the First Degree, one count of Sex Abuse in the First Degree, four counts of Assault in the Second Degree, two counts of Unlawful Imprisonment in the First Degree, and two counts of Criminal Possession of a Weapon in the Fourth Degree. Respondent was sentenced to 13-26 years of incarceration. The nature of respondent’s convictions qualified him as a sex offender pursuant to Mental Hygiene Law §10.03. On or about April 12, 2017, the respondent was adjudicated a sex offender requiring civil management under Article 10 of the Mental Hygiene Law. By Decision and Order dated December 2, 2017, this Court (DeRosa, J.) found by clear and convincing evidence that the respondent is a dangerous sex offender requiring confinement and ordered the respondent confined to a secure treatment facility. Thereafter, the Appellate Division, Second Department, by Decision and Order dated July 10, 2019, affirmed the trial court’s finding with respect to mental abnormality but remitted the matter back to the trial court for the imposition of strict and intensive supervision and treatment (SIST). Specifically, the Appellate Division determined that the State failed to present clear and convincing evidence that Ted B. has an “inability” to control “sexual misconduct” (Matter of State of New York v. Ted B., 174 AD3d 441 [2nd Dept., 2019] [emphasis added]). On September 30, 2019, in accordance with the Appellate Division’s Order, this Court (Brown, J.) placed the respondent on SIST under the supervision of the New York State Department of Corrections and Community Supervision (DOCCS). While on SIST, the respondent was arrested and charged with Criminal Mischief in the Fourth Degree and Harassment in the Second Degree. The charges arise out of a domestic incident which occurred in the City of Newburgh, New York on April 25, 2021. The respondent allegedly damaged property belonging to his domestic partner Nadine B. and verbally threatened her. A New York State DOCCS SIST warrant was issued on April 25, 2021 based upon the respondent’s actions. Thereafter, the respondent was taken into custody and transported to the Orange County Jail where he was lodged under the SIST warrant. The criminal charges were ultimately adjourned in contemplation of dismissal by the City of Newburgh Court, however, the underlying incident for which the respondent was arrested remained the subject of SIST revocation proceedings before this Court.1 A hearing was conducted pursuant to Mental Hygiene Law §10.11(d)(4) on December 20, 2021, March 7, 2022, March 23, 2022, March 24, 2022, and April 22, 2022. 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). Petitioner was represented by Assistant Attorney General Breda Huvane, Esq. Respondent Ted B. was represented by Katherine Blake Davies, Esq. of Mental Hygiene Legal Service. The State called six witnesses: Detective Roman Scuadroni, Police Officer Erik Stikler, Police Dispatcher Stephanie Roper, Madelane Tadeo Montiel, Parole Officer Michael Kenny, and Dr. Pola Eisenstein-Rosan. The respondent called one witness: Dr. Leonard A. Bard. Written closing statements were submitted by both the petitioner and the respondent. 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 must be released back into the community on 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. Eisenstein-Rosan testified that the respondent suffers from a mental abnormality and diagnosed the respondent as having Sexual Sadism Disorder, Antisocial Personality Disorder, Alcohol Use Disorder, Cocaine Use Disorder (in sustained remission), PCP Use Disorder, and Psychopathy. Dr. Eisenstein-Rosan indicated that the respondent’s “primary goals are to satisfy his own desires and needs at the moment” and “those effects are difficult to control, he has serious difficulty in controlling [them].” Further, Dr. Eisenstein-Rosan opined that the respondent’s drug and alcohol use affects respondent’s ability to control himself as cocaine increases libido and PCP causes difficulty in perceiving reality. According to Dr. Eisenstein-Rosan, the respondent is strongly pre-disposed to commit sex offenses and has specific triggers including rage, revenge, and drugs. The respondent is impulsive and “has not begun to unpack his sexual offending, his interest, his sexual arousal and interest in sexual sadism.” It is the professional opinion of Dr. Eisenstein-Rosan that the respondent cannot be effectively treated as an out-patient. Rather, the respondent should be confined to a secure treatment facility as opposed to being placed on SIST. The remaining witnesses established to the satisfaction of the Court that respondent had engaged in nonsexual criminal acts, as well as deceptive practices related to his SIST supervision. THE RESPONDENT’S CASE Dr. Bard testified that the respondent does not suffer from Sexual Sadism Disorder because respondent had only one incident where sexually sadistic behavior was evident and that was in 1992. According to Dr. Bard, Sexual Sadism Disorder requires a minimum period of six months in which the individual is aroused to the intentional infliction of suffering in another person. Since there have been no other incidents involving elements of sexual sadism during the past 30 years, a diagnosis of Sexual Sadism Disorder is inappropriate. Dr. Bard indicated that there is nothing in the record, or from interviews with the respondent, that respondent currently suffers from sexual sadism, or currently has sexually sadistic thoughts or attitudes. Further, Dr. Bard opines that the respondent has substance abuse diagnoses but the respondent does not meet the full diagnostic criteria for Antisocial Personality Disorder. Dr. Bard contends that the respondent showed signs of a conduct disorder prior to age 15 and a pattern of antisocial behavior in early adulthood while committing the underlying criminal offenses at the age of 19. However, Dr. Bard does not believe that the respondent has displayed a pattern of antisocial behavior thereafter. The respondent had less than one disciplinary ticket per year while incarcerated at DOCCS and was not considered to be a behavior management problem while at CNYPC. Dr. Bard testified that the respondent, who is now age 50, has matured and that this aging of the respondent must be considered. Further, while the respondent did display some antisocial actions while on SIST, it did not rise to the level of a diagnosable disorder. In addition, Dr. Bard testified that the respondent does have a problem with anger, and had a problem with anger in the past. However, the instant SIST violation involved “simply anger, and not sexualized anger.” The fact that the respondent yelled at Nadine B. does not equate to the respondent losing control of his sexual impulses. In fact, the alleged SIST violations were nonsexual in nature. Dr. Bard believes that the respondent would benefit from sex offender treatment, but said treatment could be received in the community while on SIST. Dr. Bard indicated that substance abuse disorders in general do not predispose individuals to commit sex offenses. With respect to the respondent’s positive cocaine test, Dr. Bard stated that even if the respondent did use cocaine, the respondent did not do anything sexual and it did not result in any increased risk or any increasingly problematic sexual behavior. Further, Dr. Bard testified that there is a difference between sex offending behavior and non-sex offending behavior. Individuals can commit non-sexual offenses which have little bearing on their ability to control their sexual behavior. The respondent’s domestic incident involves the respondent acting out in a non-sexual way. This is very different from and unrelated to the respondent’s sexual offending 30 years ago. The police reports and domestic incident reports do not allege anything sexually inappropriate. It is Dr. Bard’s professional opinion that the respondent has the ability to control his sexual impulses. In addition, the respondent is not a dangerous sex offender requiring confinement and should be released back on SIST to continue his sex offender treatment. 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. Given that the Appellate Division previously determined that “the State failed to present clear and convincing evidence that the [respondent] has an ‘inability to control sexual misconduct’” (Matter of State of New York v. Ted B., 174 AD3d 630 [2nd Dept., 2019]), this Court must determine if the State has provided additional evidence sufficient to demonstrate by clear and convincing evidence that the respondent has an “inability to control sexual misconduct.” The instant SIST revocation proceedings were prompted by the respondent’s arrest relating to a domestic incident. Respondent damaged Nadine B.’s television, heater, DVD player, and iron and verbally threatened to harm Nadine B. The respondent’s “wholly nonsexual SIST violations were not connected in any specific manner to sex offending (compare William J., 151 AD3d 1890, 1891-1892, 58 NYS23d 789). Nonsexual SIST violations can be indicative of and form the basis for a determination that a person is a dangerous sex offender requiring confinement if the State can demonstrate said behavior is connected in a specific manner to sex offending. The instant facts, however, do not sufficiently support such a determination. The State has failed to prove, by clear and convincing evidence, that respondent is now ‘unable to govern his sexual conduct’” (Matter of State of New York v. George N., 160 AD3d 28 [4th Dept., 2018] [emphasis original] quoting Matter of State of New York v. Michael M., 24 NY3d 649, 659, 2 NYS3d 830, 26 NE3d 769). “Even when viewed in the light most favorable to the State, the evidence at the hearing was legally insufficient to demonstrate that respondent is a ‘dangerous sex offender requiring confinement’ within the meaning of Mental Hygiene Law §10.03(e)” (Matter of State of New York v. George N., 160 AD3d 28, 34 [4th Dept., 2018]). Accordingly, the State’s petition to revoke the respondent’s SIST must be denied. Based upon the foregoing, it is hereby ORDERED that the respondent Ted B. be released from custody and the respondent is restored to SIST under the supervision of DOCCS. The above constitutes the Decision and Order of this Court. Dated: November 21, 2022
