=================================================================

This opinion is uncorrected and subject to revision before

publication in the New York Reports.

-----------------------------------------------------------------

No. 224 

In the Matter of State of New 

York,

 Respondent,

 v.

Michael M.,

 Appellant.

Margot S. Bennett, for appellant.

Frank Brady, for respondent.

PIGOTT, J.:

In this Mental Hygiene Law article 10 proceeding, we

hold that the evidence was legally insufficient to justify

revoking respondent's strict and intensive supervision and

imposing secure confinement. We base our holding on the

distinction between a "sex offender requiring strict and

- 1 -
- 2 - No. 224

intensive supervision" and a "dangerous sex offender requiring

confinement," as defined in the relevant statutes.

I.

Respondent Michael M. pleaded guilty to sex offenses

including sexual abuse in the first degree (Penal Law § 130.65

[3] [subjects a person under 11 years to sexual contact]) and was

incarcerated for over a decade. When his term of imprisonment

neared its end in 2008, the State commenced a civil commitment

proceeding against him pursuant to Mental Hygiene Law article 10. 

Supreme Court found probable cause to believe that respondent was

a dangerous sex offender requiring confinement, within the

meaning of Mental Hygiene Law § 10.03 (e), and ordered him

committed to a secure treatment facility pending the conclusion

of the proceeding (see Mental Hygiene Law § 10.06).

Respondent moved to dismiss the article 10 petition

and, at the same time, commenced a proceeding seeking a writ of

habeas corpus directing his release, contending that – for

procedural reasons not pertinent to this appeal – he was not a

lawfully detained sex offender under Mental Hygiene Law § 10.03

(g) (1). In March 2010, Supreme Court dismissed the article 10

petition, granted respondent habeas corpus relief, and released

him into the community. Eight months later, the Appellate

Division reversed Supreme Court's order, but respondent remained

in the community, without supervision, pending completion of his

article 10 trial. There is no evidence of criminal activity by

- 2 -
- 3 - No. 224

respondent during this period, which eventually lasted nearly two

years.

In September 2011, Supreme Court held a bench trial on

two issues: whether respondent suffered from a mental abnormality

as defined by Mental Hygiene Law § 10.03 (i) (see Mental Hygiene

Law § 10.07 [d]) and whether he suffered from a mental

abnormality involving such a strong predisposition to commit sex

offenses, and such an inability to control behavior, that he was

likely to be a danger to others and to commit sex offenses if not

confined to a secure treatment facility (see Mental Hygiene Law

§§ 10.03 [e], 10.07 [f]). Experts called by the State and by

respondent agreed that he suffered from a mental abnormality

within the meaning of article 10, but the State's expert opined

that respondent's condition necessitated confinement whereas

respondent's expert insisted that he could be safely managed

under "strict and intensive supervision" (SIST) (see Mental

Hygiene Law § 10.03 [r]).

On November 15, 2011, Supreme Court imposed SIST,

rather than confinement, and placed respondent under the custody

and control of the New York State Department of Corrections and

Community Supervision. A parole officer, assigned to supervise

respondent, met with him on November 21 to review his SIST

conditions.1

1

 Michael M. attended all of his appointments with his

parole officer in a timely manner.

- 3 -
- 4 - No. 224

 Respondent was required to attend a sex offender

treatment program at Mid-Erie Counseling and Treatment Services

(Mid-Erie) in Buffalo. On November 22, 2011, a mental health

counselor at Mid-Erie met with respondent for an "intake

appointment." She scheduled two meetings for him on December 6:

a 12:30 p.m. appointment for a chemical dependency orientation

program, at Mid-Erie's main office on the East Side of Buffalo,

and a 2 p.m. appointment with herself for an initial sex offender

assessment, at the office of the New York State Division of

Parole in downtown Buffalo. Respondent attended the 12:30 p.m.

program, leaving Mid-Erie at about 1:45 p.m. and telling staff

that he was on his way to a 2 p.m. appointment with the

counselor. As respondent did not have a car of his own, his mode

of transportation was a public bus.

Respondent did not appear at the parole office for his

meeting with the mental health counselor at the scheduled time. 

Reached on his cell phone, respondent, in the judgment of MidErie, failed to provide a reasonable excuse for his tardiness. 

Soon after 3 p.m., respondent arrived at the office, where he

blamed the counselor for scheduling two appointments so close in

time and expressed displeasure at being on SIST. A "team

meeting" at Mid-Erie was scheduled for the following week.

Meanwhile, respondent was having financial difficulty. 

He had lost his job as a taxi driver when his employer learned

that he was a registered sex offender, and was evicted from his

- 4 -
- 5 - No. 224

apartment a week later for failure to pay rent. Respondent's

parole officer arranged for a residential placement at Grace

House, which provides transitional housing for men who might

otherwise be homeless. As a condition of placement at Grace

House, residents are required to attend a Department of Social

Services "job preparation program." Respondent enrolled in the

program but, according to his parole officer, "he was late on two

occasions and on another occasion he did not bring in the

required three applications."2 On December 9, 2011, about a week

after commencing the job preparation program, respondent was

terminated from the program. As a result, on December 12, 2011,

respondent was discharged from Grace House. His parole officer

directed him to find shelter at the Buffalo City Mission.

At the "team meeting" at Mid-Erie on December 13, 2011,

counselors raised concerns about several aspects of respondent's

circumstances, including the missed appointment with his

counselor on December 6, his loss of employment and independent

residence, and his termination from the job program and eviction

from Grace House. Team members also expressed concerns about

respondent's relationship with a girlfriend who suffered from

certain "mental health problems," but did not allege that the

2

 Michael M.'s own recollection was that he was late by ten

minutes "due to the bus schedule" on one occasion, he submitted

incomplete paperwork on another occasion because he was "worried

about transportation back to downtown and the curfew at Grace

House," and he produced inaccurate information on job

applications on the third occasion.

- 5 -
- 6 - No. 224

relationship violated any of respondent's SIST conditions. 

Kenneth Duszynski, Forensic Program Director at Mid-Erie, was

present at the meeting. As he later recalled, respondent refused

to answer questions and became angry. His parole officer found

respondent defensive and sarcastic. At the conclusion of the

meeting,3 Duszynski discharged respondent from the sex offender

treatment program at Mid-Erie for failure to cooperate. Treating

the discharge as a violation of SIST conditions, respondent was

arrested (see Mental Hygiene Law § 10.11 [d] [1]).

II.

These events triggered a reevaluation of respondent

under Mental Hygiene Law § 10.11 (d) (1). Dr. Paul Etu, a boardcertified psychologist, interviewed respondent at the Erie County

Holding Center on December 15. Respondent, when questioned by

Dr. Etu about his sexual urges, indicated that he was "learning

to control the urges" by means of certain "tools" he had learned,

in particular diverting his attention from young girls he

encountered or, failing that, moving rapidly away from them. 

Respondent described this "relapse prevention plan" as a fightor-flight response. He also mentioned supportive family members

3

 The record contains a letter from Duszynski to Michael

M.'s parole officer, dated December 12, 2011, i.e. the day before

the "team meeting," discharging Michael M. from treatment at MidErie and requesting that the parole officer take Michael M. into

custody. No explanation has been provided for this "pre-meeting"

determination. We assume for the purposes of this factual

recitation that the date on this letter is a typographical error,

and that it was written in light of events on December 13.

- 6 -
- 7 - No. 224

and church ministers, as well as a sexual relationship with his

girlfriend. On the other hand, Dr. Etu found respondent

exhibited a combative attitude when SIST conditions were

discussed. He told Dr. Etu that he felt that had served his time

for his sex offenses and was being unfairly treated. In

particular, respondent objected to his counselor's criticism of

his relationship with the girlfriend who suffered from "mental

health" issues: "She can't tell me that," respondent told Dr.

Etu, "She can't tell me who to love."

Dr. Etu issued a report, opining that respondent was a

dangerous sex offender requiring confinement. Dr. Etu noted that

respondent had "displayed . . . deviant sexual interest in young,

female children" and "acknowledged that he still [had] urges in

this regard." He further opined that respondent appeared "to

have an ingrained sense of entitlement and a disdain for the

therapeutic community," which respondent perceived as

antagonistic, rather than supportive.

On December 19, 2011, barely a month after Supreme

Court had reached its SIST decision, the State petitioned for an

order pursuant to Mental Hygiene Law § 10.11 (d), revoking

respondent's release to SIST and confining him to a secure

treatment facility. In addition to the report from Dr. Etu, the

State submitted an affidavit and incident report from

respondent's parole officer and a letter from Duszynski opining

that respondent required confinement. Supreme Court found

- 7 -
- 8 - No. 224

probable cause to believe that respondent was a dangerous sex

offender requiring confinement and ordered him committed to a

secure treatment facility pending a hearing, pursuant to Mental

Hygiene Law § 10.11 (d) (4). Respondent moved to dismiss the

petition or, in the alternative, to modify the SIST conditions to

permit treatment through another provider.

At a two-day hearing in March 2012, Supreme Court heard

testimony from Dr. Etu, Mr. Duszynski, respondent's parole

officer, and his counselor. Dr. Etu opined, consistently with

his report, that respondent was a dangerous sex offender

requiring confinement. He testified that respondent had

elaborated at his interview "how at times [sexual] urges would

come on and how he would try to fight them off and basically

[had] fought them off" but "was still having difficulty with

that." Dr. Etu further testified that respondent had told him

that, although he now understood that it had been wrong to

believe that his victims enjoyed sexual activity with him or

"came on to him", the idea still came "into his head once in a

while."

Dr. Etu further supported his conclusion by presenting

evidence of "static and dynamic risk factors." According to Dr.

Etu, these factors, in particular the Static-99-R test, indicated

that respondent had a 23% chance of "reoffending" within the next

10 years and a 46% chance of "reoffending" in his lifetime. Dr.

Etu also testified that respondent "was resistant to counseling,"

- 8 -
- 9 - No. 224

did not trust the counselors at Mid-Erie, and could not "work

with them."

Duszynski testified that respondent had been sarcastic

and defensive at the December 13 "team meeting." Asked why

respondent had been discharged from Mid-Erie, Duszynski's

assessment was that respondent was not willing to follow "the

rules of either treatment or supervision," placing him "in a very

high risk situation."

On April 19, 2012, Supreme Court determined that the

State had proved by clear and convincing evidence that respondent

was a dangerous sex offender requiring confinement (see Mental

Hygiene Law §§ 10.11 [d] [4], 10.07 [f]). Accordingly, the court

revoked respondent's release on SIST and committed him to a

secure treatment facility. Nevertheless, Supreme Court's written

decision was highly critical of Mid-Erie and of respondent's

parole officer.

"It is clear that the Parole Officer and

therapists were put off by [Michael M.]. The

animus projected toward [Michael M.]

throughout this proceeding literally was

pooling on the courtroom floor. What is the

genesis of this animus? Repulsion over

[Michael M.'s] criminal acts? Repulsion over

[Michael M.]'s appearance? Displeasure over

his past criticism of Parole or Mid-Erie? A

general reluctance to perform the work

necessary to service, and perhaps benefit

[Michael M.] and the community? We will

never know. . . . There is a word for that:

Callousness."

Respondent perfected his appeal and additionally

petitioned for discharge upon annual review (see Mental Hygiene

- 9 -
- 10 - No. 224

Law § 10.09). Supreme Court in the county of respondent's

confinement issued an order of continued confinement, upon the

yearly review, before respondent's appeal was calendared, and the

State moved to dismiss the appeal as moot. The Appellate

Division affirmed on the merits (109 AD3d 1181 [4th Dept 2013]). 

This Court granted respondent leave to appeal. Under the

circumstances of this case, the appeal is not moot, because the

continued confinement order was affected by the order challenged

here, changing respondent's level of disposition from SIST to

secure confinement. However, we disagree with the Appellate

Division on the merits, and now reverse.

III.

Respondent raises three arguments: that Supreme Court

failed to apply "the least restrictive alternative doctrine" to

his civil management; that the evidence at trial was legally

insufficient to demonstrate clearly and convincingly that he was

unable to control his sexual conduct to the extent that he was

likely to be a danger to others and to commit sex offenses if not

confined to a secure treatment facility; and that the manner in

which his SIST was implemented and revoked violated his right to

due process of law.

In arguing that a doctrine of the least restrictive

alternative should apply in proceedings under Mental Hygiene Law

article 10, respondent relies on certain statutes that

incorporate the doctrine, including provisions of the Mental

- 10 -
- 11 - No. 224

Hygiene Law governing assisted outpatient treatment of the

mentally ill (see Mental Hygiene Law § 9.60 [h] [4] [ii]; [i]

[3]; [j] [2]). The right to a least restrictive alternative, he

argues, should likewise apply to convicted sex offenders. The

Appellate Division correctly rejected respondent's contention

(109 AD3d at 1182, citing Matter of State of New York v Gooding,

104 AD3d 1282 [4th Dept 2013], lv denied 21 NY3d 862 [2013] and

Matter of State of New York v Enrique T., 93 AD3d 158, 173 [1st

Dept 2012], lv dismissed 18 NY3d 976, 977 [2012]). Least

restrictive alternative principles are not automatically

transferable from one article of the Mental Hygiene Law to

another. "[S]ex offenders in need of civil commitment are a

different population from traditional mental health patients, who

have different treatment needs and particular vulnerabilities"

(MHL § 10.01 [g]). Moreover, Mental Hygiene Law article 10, as

written, is already designed to provide courts with a mechanism

for deciding whether the mental condition of a sex offender

suffering from a mental abnormality is so extreme that the more

restrictive alternative of confinement is warranted or whether,

on the other hand, the least restrictive option, namely SIST, is

permitted. The statute, then, implicitly contains its own "least

restrictive alternative doctrine."

IV.

Respondent's second argument is based on legal

insufficiency. Respondent contends that as a matter of law the

- 11 -
- 12 - No. 224

evidence before Supreme Court was not sufficient to show, by

clear and convincing evidence (see MHL § 10.07 [f]), that he

required confinement pursuant to Mental Hygiene Law article 10. 

We agree.

To begin, the standards applicable in a proceeding

seeking confinement pursuant to Mental Hygiene Law § 10.11 (d)

(4), after an alleged SIST violation, are the same as those

applicable when the proceeding is brought while the sex offender

is still incarcerated. "The court shall make its determination

of whether the respondent is a dangerous sex offender requiring

confinement in accordance with the standards set forth in

subdivision (f) of section 10.07" (Mental Hygiene Law § 10.11 [d]

[4]). Section 10.07 in turn relies on the definitional

provisions of Mental Hygiene Law § 10.03.

The Mental Hygiene Law defines "mental abnormality" as

"a congenital or acquired condition, disease or disorder that

affects the emotional, cognitive, or volitional capacity of a

person in a manner that predisposes him or her to the commission

of conduct constituting a sex offense and that results in that

person having serious difficulty in controlling such conduct"

(MHL § 10.03 [i] [emphasis added]). By contrast, a "dangerous

sex offender requiring confinement" is defined in the Mental

Hygiene Law as "a person who 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

- 12 -
- 13 - No. 224

behavior, that the person is likely to be a danger to others and

to commit sex offenses if not confined to a secure treatment

facility" (MHL § 10.03 [e] [emphasis added]). The statute –

which goes on to describe a "sex offender requiring strict and

intensive supervision" as a "detained sex offender who suffers

from a mental abnormality but is not a dangerous sex offender

requiring confinement" (MHL § 10.03 [r]) – clearly envisages a

distinction between sex offenders who have difficulty controlling

their sexual conduct and those who are unable to control it. The

former are to be supervised and treated as "outpatients" and only

the latter may be confined.

The testimony in this case tended to show only that

respondent was struggling with his sexual urges, not that he was

unable to control himself. Dr. Etu testified that respondent was

"having difficulty" with warding off urges to have sex with very

young girls, but not that he was unable to do so. In fact, Dr.

Etu recounted certain practical "tools" that respondent

successfully used "to control [his] urges." He would force his

attention away from young girls he encountered or remove himself

from their vicinity. The fact that respondent had difficulty

warding off illicit sexual urges shows that respondent suffered

at the time from "mental abnormality" within the meaning of

Mental Hygiene Law article 10, which he does not now deny. But

more than this – the inability to control sexual misconduct –

would have had to be shown to prove that respondent was a

- 13 -
- 14 - No. 224

dangerous sex offender requiring confinement.4

Notably, the record reveals nothing relevant to the

issue of respondent's sexual control that occurred between

November 15, 2001, when Supreme Court imposed SIST rather than

civil confinement, and April 19, 2012, when Supreme Court ordered

confinement. What happened during this time was that respondent

lost his job, and was evicted from his apartment for failure to

pay rent; was late for one appointment; expressed, perhaps with

some sarcasm, his distaste for SIST; was discharged from a job

application program, with the result that he was evicted from

transitional housing; and was discharged from a sex offender

treatment program. Whatever else might be said about the

personality traits or the social circumstances that led

respondent so inexorably to homelessness and then to confinement,

they do not give any support to the proposition that he had

become unable to govern his sexual conduct.

We conclude that the evidence, considered in the light

most favorable to the State, was insufficient to support the

trial court's finding that respondent had such an inability to

control his behavior that he was likely to be a danger to others

and to commit sex offenses if not confined to a secure treatment

facility. Consequently, reversal is required, and it is

unnecessary for us to consider respondent's due process

4 The expert testimony did not adequately connect the socalled "static and dynamic risk factors" to the conclusion that

Michael M. was unable to control his sexual conduct. 

- 14 -
- 15 - No. 224

arguments.

The order of the Appellate Division should be reversed,

without costs, and the matter remitted to Supreme Court for

further proceedings in accordance with this opinion.

* * * * * * * * * * * * * * * * *

Order reversed, without costs, and matter remitted to Supreme

Court, Niagara County, for further proceedings in accordance with

the opinion herein. Opinion by Judge Pigott. Chief Judge

Lippman and Judges Smith, Rivera and Abdus-Salaam concur. Judge

Read dissents and votes to affirm for reasons stated in the

memorandum at the Appellate Division (103 AD3d 1113 [2013]).

Decided December 17, 2014

- 15 -