Petitioner, Harry W., was served a notice on April 9, 2018 advising him of his right to petition for discharge. Having declined to waive his right to petition for discharge, Petitioner previously submitted a Motion pursuant to Mental Hygiene Law § 10.09 filed with the Oneida County Clerk March 23, 2018. The Attorney General responded via Verified Affirmation in Response and Partial Objection dated April 9, 2018. An Omnibus Order was signed by the Court (Hon. Louis Gigliotti) April 18, 2018 granting various relief.

An evidentiary hearing was held October 29, 2019. The State submitted the report dated June 21, 2018 and addendum dated October 21, 2019 of Dr. Allison T. Prince, Psy.D. and offered her testimony. Petitioner submitted the report of Dr. Don Greif, Ph.D. and offered his [*2]testimony.

The task of the Court is to consider the totality of this evidence and determine whether Harry W. suffers from a " mental abnormality" as that term is defined in Mental Hygiene Law §10.03(i), and if so, whether he is a "dangerous sex offender requiring confinement", as that term is defined in Mental Hygiene Law §10.03(e). Although Harry W. filed the petition, the State bears the burden of showing by "clear and convincing evidence" that Harry W. fits within these definitions ( see Matter of Pierce v. State of New York, 148 AD3d 1619, 1622 [Fourth Dept., 2017]).

Both Dr. Prince and Dr. Greif agree Harry W. suffers from a mental abnormality as that term is defined in Mental Hygiene Law §10.03(i ). Dr. Greif diagnosed Harry W. as having Pedophilic Disorder (nonexclusive type, sexually attracted to males), Alcohol Use Disorder (in sustained remission, in a controlled environment), Alcohol Dependence (Remission, in a controlled environment), Specific Learning Disorder with Impairment in Reading, Specific Learning Disorder with Impairment in Written Expression, and Intellectual Disability (Mild).^[FN1] Dr. Greif farther notes: "I believe [Harry W.] has a condition (Pedophilic Disorder) that predisposes him to committing a sexual offense and that results in his having serious difficulty controlling his sexual aggression."^[FN2] Dr. Prince diagnosed Harry W. with Pedophilic Disorder (nonexclusive type, sexually attracted to males), Alcohol Use Disorder (in sustained remission, in a controlled environment), and Intellectual Disability (Intellectual Developmental Disorder, Mild). She wrote:

"[Harry W.] has been sexually offending against prepubescent males for approximately 23 years. He reported he first engaged in sexual activity with a young boy, a male relative who was approximately 7 or 8 years old when he ([Harry W.]) was around 17 or 18. [Harry W.] was subsequently arrested four times after this for engaging in sexual abuse against prepubescent children. His last arrest occurred when he was 40 years old."^[FN3]

Concerning Intellectual Disability, Dr. Prince states:

"[Harry W.] reported that he has been in Special Education programs his entire academic career. He reported that he was on SSI for this disability until he was incarcerated. He demonstrated intellectual limitations during the interview on 9/27/13."^[FN4]

The Court credits the diagnoses by Dr. Prince and Dr . Greif of Harry W. having Pedophilic Disorder and Alcohol Use Disorder and finds that the State has met its burden proving by clear and convincing evidence that Harry W. suffers from a mental abnormality. The Court also notes the diagnoses by both Dr. Prince and Dr. Greif of Harry W. having an intellectual disability for reasons which will become clear below.

Turning now to the question of whether Harry W. is a dangerous sex offender requiring confinement, the Court must determine whether the evidence shows he has such a strong [*3]predisposition to commit sex offenses and such an inability to control this behavior that he is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility. Dr. Prince administered the Violence Risk Scale-Sex Offender Version (VRS:SO) and scored Harry W. at 43.5.^[FN5] Dr. Prince states, "[Harry W.]'s Total VRS:SO Score has decreased since his initial assessment, although his overall risk level since his initial evaluation has remained the same (i.e., above average risk for sexual violence). According to recent VRS:SO normative data as described above, offenders with similar pre-treatment and change scores as Mr. Warren are estimated to recidivate at a rate of 22.9% (range = 18.5% to 27.9%) over 5 years."^[FN6] In assessing Harry W.'s current level of dangerousness, Dr. Prince also notes:

"[Harry W.] presents with risk factors, both static and dynamic, that are associated with an above average risk for sexual violence, as assessed by the VRS:SO . He has not discussed his sex offense history in its entirety to facilitate a thorough understanding of his illegal sexual interests (e.g., offense planning, deviant sexual interests, offending cycle), and thus, he has not developed insight into the factors that precipitated his past sexual offenses, and the degree to which those factors continue to impact his risk of a sexual offense. Further, [Harry W.] does not have a thoroughly developed relapse prevention plan for community placement, and he will either likely return to the same situation in which he was previously released - a situation in which he engaged in multiple high -risk behaviors - or an entirely new environment (i.e., Lake George). Even if released to Lake George, he has not developed a release plan for the area, and his sole alleged support is an adult female who, he reports, is not as informed regarding his sex offense history and whom he recently gave money to for her rent. Subsequently, the nature of this relationship is unclear (i.e., positive negative, neutral)."^[FN7]

Particular to the instant review period, Dr. Prince testified and noted:

Harry W. has not consistently attended the majority of his treatment groups after his preparation of a relapse prevention plan . In fact, over 15 months from July 2018 until September 2019 there were 150 sessions scheduled and he attended 7 in September 2019. "Since the 06/21/ 2018 10.09 examiner review, this examiner asserts that he has not progressed considerably in understanding his sexual deviance. Of note is that [Harry W.] described a need to "work through" his avoidance of attending groups due to feeling "shut down" and blamed by others (Article 10 Evaluation - Dr. Grief [04/08 /2019] ). However, if he identifies these situations as triggers, his continued non-attendance in treatment groups only serves to reinforce avoidance of these treatment issues as opposed to fostering internal coping skills."^[FN8]

Avoidance for this prolonged period of time shows he still has a problem working with adults on a treatment plan which is a clear example of his inability to work through relationships. Harry W. reports some of his offenses [*4]against children was based on his fear of rejection from adults for consensual sexual contact and that in his relationships with adults he didn't necessarily enjoy sexual contact. This contradicts his present position that he would seek relationships with only adult males which further confirms he does not have a grasp of his offending cycle regarding children.

Dr. Prince further testified and noted:

"[Harry W]'s placement in a less restrictive setting is deemed inappropriate at this time. [Harry W] does not yet possess the necessary skills to keep both himself and the community safe from harm. Inpatient treatment appears to be required in order for him to build a durable set of skills to safely manage himself and to keep the community from again being exposed to such a high level of risk."

Dr. Prince concludes: "[Harry W.] remains a dangerous sex offender requiring confinement at this time."^[FN9]

While Dr. Greif agrees that Harry W. suffers from a mental abnormality, he does not agree that Harry W. is a dangerous sex offender requiring confinement. A primary disagreement between Dr. Greif and Dr. Prince is the thoroughness of Harry W.'s relapse prevention plan. Contrary to Dr. Prince, Dr. Grief cites a note in Harry W.'s file which reads:

"[Harry W.] developed a relapse prevention plan (4.1.18) that is well thought out, comprehensive, and sensible. It addresses all areas of concern : residence, employment, education, financial, health, leisure, addictions, planned support system/personal relationship, environments to avoid, treatment needs, spiritual needs, personal goals, sex offender registry, high risk situations/facto, warning signs and cues, cognitive distortions, and people to inform about his offense patters."^[FN10]

Not only is Dr. Griefs conclusions regarding the treatment plan at odds with Dr. Prince, but seemingly at odds with other notes referenced by Dr. Grief. Notes from June 2018 through December 2018 indicate Harry W. "disengage from treatment because of trust issues and dissatisfaction with his providers. [Harry W.] said he felt that Ms. Gordon and Ms. Henderson were not 'trained to work with individuals like [Harry W.]'"^[FN11] Another note from [September] 2018 supports that the treatment team attempted to get this patient back to groups and reports"[Harry W.] raised his voice and stated in an angry tone, 'I need more help than what you can give me in that damn group.' [Harry W.] was pointing his finger at the facilitators and continued to exhibit loud, disrespectful behaviors."^[FN12] Not all is negative. Dr. Grief notes that Harry W. "generally has a positive disposition and expresses concern for his family and friends".^[FN13] Harry W. also seems to know what is expected of him:

"[Harry W.] told me that the judge - in his decision after his last release hearing - wanted [Harry W.] to do Footprints (a guided reading program) and a relapse prevention plan. Since that decision, [Harry W .] said he has since done these things. He elaborated that he was six months through Footprints - where was able to keep up with the other group members - when he was suddenly taken out and placed in a group (with ten men) in which he cannot understand the material. He said he wants to get into a smaller group that provides more help for his deficits. [Dr. Greif ] asked [Harry W.] about his lack of engagement in treatment and he said he feels his therapists shut him down and it's a problem to work through."^[FN14]

Dr. Greif testified he believed Harry W. if released to the community would need sex offender treatment and quoted Harry W. who stated if he needed it he would reach out for help from friends and supports. Its hard for the court to believe this assessment is true, when in fact help is available to him presently in the form of treatment and he refuses to take advantage of it.

While this may appear as a claim Harry W. is not receiving "meaningful treatment" as required by MHL §10.03(a), the evidence presented indicates instead that he feels he no longer needs any treatment. Dr. Greif s conclusions regarding release on Strict and Intensive Supervision and Treatment do not appear to be supported by the facts presented.

The Court credits Dr. Prince's report, addendum, and testimony and finds the State has proven by clear and convincing evidence that Harry W. suffers from a mental abnormality and currently has such a strong predisposition to commit sex offenses and such an inability to control his behavior that his is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility.

In this matter Dr. Greif correctly pointed out that increased age can reduce sexual desires in the form of reducing testosterone for hypersexual patients such as Harry W . Chemical therapy can further reduce those sexual urges by reducing testosterone levels and assist patients who also successfully complete sex offender treatment to be released safely into the community. This Court acknowledges the matter of Richard Z. and the legislative intent of the Sex Offender Civil Confinement Treatment Program to provide "meaningful treatment" as set forth in Mental Hygiene Law §10.01(a), (b), and (f ) to patients under this statute, and to protect the public from dangers of recidivism. The Petitioner has the right to have the opportunity for release, by receiving available treatment (such as chemical therapy) to reduce his respective desires to sexually act out (see Matter of State of New York v. Douglass S., Hon. J. Tormey (Annual Review Hearing & Order, Index No.: CA 2008-2297). It is well established that chemical therapy has had a positive result with less than a 3% recidivism rate by sexual offenders being so treated (see Matter of the State of New York v Richard Z., Hon. J. Tormey (Annual Review Hearing & Order, Index No.: CA 2007-2605, see Decision and Order dated August 13, 2015) Therefore, if the petitioner seeks treatment for chemical therapy and he is a viable candidate for such treatment with Leuprolide Acetate or any appropriate anti- androgen therapy medication which will substantially reduce the Petitioner's potential for sexual recidivism it should be offered Harry W. to increase his ability for success in treatment so he may be released safely to the community.

THEREFORE, it is hereby

ORDERED, that Harry W. shall continue to be committed to a secure treatment facility designated by the Commissioner; and it is further

ORDERED, that Harry W. 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, Harry W. 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 further

ORDERED, that Harry W. 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 further

ORDERED, that Harry W. shall be considered by the Office of Mental Health for a course of chemical therapy treatment if Harry W. decides to participate with that medical treatment; and it is further

ORDERED, that copies of all post-commitment documents for treatment, evaluations, assessments, and raw data associated with Harry W. 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 further

ORDERED, 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 Harry W.'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.