NY- Sex offender still in confinement after prison term ends

New York's first person being held for civil commitment hearing. After he had been released into the community and then violated parole.

12-14-2008 New York:

‘Risk factors’ keeping sex offender off streets

Daniel Gierszewski served 17 years in prison after sexually abusing four young girls nearly two decades ago.

The Buffalo man is out of prison. But he is not free. Gierszewski, 63, is confined to a psychiatric institution in Central New York.

That’s because state prosecutors successfully argued that girls in the region are not safe with Gierszewski on the streets.

Gierszewski has become the first convicted sex offender in Western New York caught in the net of a civil confinement law passed last year in Albany. And several more are set to follow.

The new law allows the state to declare that a sex offender who has completed his sentence but suffers from a mental abnormality makes him likely to commit more sex crimes.

If state prosecutors can prove that to a jury, a judge has the authority to send the defendant to a psychiatric institution for as long as the rest of his life. Or the judge may choose to place him on strict parole that threatens confinement if dozens of conditions aren’t met.

“Mr. Gierszewski has a mind full of risk factors,” State Assistant Attorney General Thomas J. Schoellkopf argued during Gierszewski’s confinement trial in Niagara County last month. “These are horrible acts, not consensual. . . . We must stop this from happening again.”

A 12-member jury unanimously agreed, so now a judge has the authority to order Gierszewski committed to a psychiatric institution or relased on parole with a long string of severe restrictions. A decision is expected this month.

“It used to be good enough to say, ‘He has paid his debt to society,’ ” said attorney John R. Nuchereno, who defended Gierszewski last month. “What was thought to be a fair punishment was imposed, . . . [but] the doors of the prison Dan was kept in were kept shut.”

Gierszewski is now in the Central New York Psychiatric Center in Marcy, Oneida County.

If State Supreme Court Justice Richard C. Kloch Sr. decides that Gierszewski needs to be committed, that’s likely where he will stay. The state has only two psychiatric facilities for sex offenders; the other is in Ogdensburg.

Gierszewski is among 59 convicted sex offenders who have gone into the state’s civil confinement institutions so far.

He was flagged for the program shortly before his scheduled release from Elmira Correctional Facility on Feb. 21.

In June 2007, the Office of Mental Health had reviewed his case and decided that he was not a candidate for civil confinement, but the state agency changed its mind after Gierszewski was let out of prison on parole Sept. 17, 2007.

Two months later, he violated the terms of parole by using a public computer in the Buffalo & Erie County Central Library to look for job listings. While he was there, he replied to an e-mail from his sister with one of his own, wishing her a happy birthday. Parole officers had ordered him not to use the Internet.

By last Dec. 14, he was back in prison to finish what he expected to be the last three months of his original sentence. Instead, the state attorney general’s office, which handles civil confinement cases, had other things in mind for him.

In court last month in Lockport, two assistant attorneys general and two psychologists hired by the state asserted that Gierszewski has a mental abnormality that makes him likely to commit more sex crimes.

After two days of testimony from the doctors, including one chosen by the defense, and two hours on the stand for Gierszewski himself, the jury took only 90 minutes to agree with the state’s position.

Here’s some of what jurors and Kloch heard:

Nearly 16 years ago, Gierszewski slipped his hand onto the thigh of a 10-year-old girl in the candy aisle of the old Ames department store in North Tonawanda. He then ran from the store with security guards in pursuit. Police pulled his vehicle over a short time later and found a loaded handgun inside. In June 1994, a jury convicted him of sexual abuse and weapons possession, and he was sentenced to 14 years in prison.

When asked about his encounter with the 10-year-old during his civil confinement trial, Gierszewski said, “When my hand made contact with her, I knew where I was, and I decided to get what I could get.”

It wasn’t his first sexual contact with underage girls.

In May 1980, while he was working as a bartender at a Bailey Avenue tavern, he was charged with raping and sodomizing a 15-year-old girl. He pleaded guilty to misdemeanors in that case and was placed on probation.

Another sex crime followed in 1983, while Gierszewski was cruising the streets of Buffalo looking for young prostitutes, he offered a ride to two girls, ages 13 and 16. When they took him up on it, he told them he had a gun, tied them up and sexually assaulted them. He pleaded guilty to sexual abuse for that and served three years in state prison.

The civil confinement law requires that all sex offenders whose prison or parole terms are running out will have their files reviewed by a board in the Office of Mental Health. If the board concludes that the person has a mental abnormality as defined in the new law, it can turn the case over to the state attorney general’s office for action.

Since then-Gov. Eliot L. Spitzer signed the law last year, 59 New York sex offenders have been committed to psychiatric institutions. An additional 40 have been placed under intensive parole supervision.

“The State Legislature said, ‘For this crime, you do this amount of time.’ It also said you could do more time if they think you might offend again,” said David G. Jay, a Buffalo civil liberties attorney who has just been assigned to defend James A. McKinney, a Niagara County sex offender, at an upcoming civil confinement trial.

“I suppose they could do it for any crime,” Jay said. But since sex offenders were singled out, Jay argues, “that’s what makes it unconstitutional.”

The U. S. Supreme Court does not agree. Although the New York law’s constitutionality has not been tested in court, the Supreme Court, in a 5-4 decision, upheld the concept of civil confinement in a Kansas case it decided in 1997.

The high court ruled that civil confinement is not punishment and thus doesn’t violate a sex offender’s right to due process.

What does Gierszewski think about the civil confinement law?

On the witness stand, he said, “It scares me.” ..News Source.. by Thomas J. Prohaska, NEWS NIAGARA BUREAU