Matter of State of New York v Jerome A.

[*1] Matter of State of New York v Jerome A. 2015 NY Slip Op 51303(U) Decided on September 8, 2015 Supreme Court, New York County Conviser, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 8, 2015
Supreme Court, New York County

In the Matter of the Application of The State of New York, Petitioner,

against

Jerome A., Respondent, For Commitment Under Article 10 of the Mental Hygiene Law.



30261-2014



New York State Attorney General Eric Schneiderman (Breda Huvane and Anthony Miller, of counsel) for the Petitioner.

Mental Hygiene Legal Services (Valentina Morales, of counsel) for the Respondent.
Daniel P. Conviser, J.

The Respondent is the subject of a petition for sex offender civil management pursuant to Article 10 of the Mental Hygiene Law ("Article 10", the Sex Offender Management and Treatment Act, "SOMTA"). On June 1, 2015, this Court conducted a hearing to consider whether there was probable cause to believe the Respondent was a sex offender requiring civil management pursuant to MHL § 10.06 (g) and also to determine whether the Respondent's motion to dismiss the petition should be granted. Respondent's motion is based on the recent decision of the Court of Appeals in State v. Donald DD. & Kenneth T., 24 NY3d 174 (2014), particularly the Donald DD. portion of the decision, which held that AntiSocial Personality Disorder ("ASPD") alone cannot serve as a predicate for an Article 10 proceeding. The Respondent's contention is that the diagnosis proffered by the State here, "ASPD with psychopathy" is not materially different from the diagnosis found insufficient as a matter of law by the Court of Appeals in Donald DD. and therefore must result in the instant petition's dismissal. The Respondent also contends the State did not establish probable cause to believe the Respondent has a Mental Abnormality under Article 10 for other reasons.

The State called one witness, Dr. Frances Charder and also introduced Dr. Charder's report into evidence. The Respondent did not call any witnesses. However, a brief written evaluation and follow-up letter from a second psychologist also retained by the State, Dr. Kostas Katsavdakis, was also submitted. The Court's analysis of Dr. Charder's testimony is outlined infra.

For the reasons which follow, the Court holds that the State did not demonstrate there was probable cause to believe Mr. A. is a sex offender requiring civil management pursuant to MHL § 10.06 (k). The Court therefore orders the petition dismissed and stays that order for 30 [*2]days to allow the State to seek a stay of this Court's Decision and Order from the Appellate Division. See MHL § 10.13 (a). Given this determination, the Court has not ruled on the Respondent's motion to dismiss the petition pursuant to CPLR 3211 (a) (7).

STATEMENT OF FACTS

Dr. Charder has been a licensed psychologist since 1996 and employed by the New York State Office of Mental Health ("OMH") for the past ten years. In her current position, she evaluates sex offenders to determine whether the State should bring SOMTA proceedings. She said she had conducted about 1000 psychiatric evaluations of any kind and worked at the Kirby Psychiatric Center for six years beginning in 2006. She has conducted about 50 sex offender evaluations under Article 10. She was qualified without objection as an expert in the field of psychology and sex offender evaluation.

Dr. Charder interviewed Mr. A. for three hours on October 3, 2014 by video teleconference. She prepared a report of her evaluation dated October 17, 2014. She concluded that Mr. A. suffers from a Mental Abnormality under Article 10 and diagnosed him with ASPD with psychopathy. Dr. Charder opined that although the courts had found that ASPD alone was not a qualifying condition, disease or disorder under Article 10, it was such a qualifying condition. She said that psychopathy was a "condition" and believed it would eventually be categorized as a disease. Dr. Charder outlined the diagnostic criteria for each condition in her written report.

Summary of Relevant Information from Dr. Charder's Report Mr. A. is currently 58 years old. During the interview, he appeared calm and collected. Mr. A. said he began to drink and smoke marijuana at age 14 and used drugs like crack cocaine and heroin beginning in his late 20's. He also said he had engaged in "robbing and hustling" to obtain money for his habits. Mr. A. has an extensive criminal history. Dr. Charder's report reveals four dismissed cases involving charges of robbery, rape and assault when the Respondent was 15 and 16 years old. At age 18, Mr. A. was adjudicated a Youthful Offender for a robbery charge. Multiple additional charges for weapons and assault in his 20's were also dismissed. He was convicted of the crime of "Maiming" in Virginia at age 33 and Abduction in Virginia at age 41. His criminal history also includes multiple offenses for less serious crimes like the criminal possession of controlled substances, trespass and failure to pay his subway fare.

At age 40, in 1997, he pled guilty to the crime of Sexual Abuse in the First Degree in New York. Records indicate Mr. A. on that occasion met a woman in a hallway, confined her, threatened her and raped her. The records indicate Mr. A. admitted the offense and said he was under the influence of crack cocaine at the time. In the instant qualifying offense, Mr. A. pled guilty in New York in 2006 at age 50 to Attempted First Degree rape by forcible compulsion. In that crime, as outlined in more detail infra, Mr. A. beat and forcibly raped a woman he had engaged in consensual sexual intercourse with just 40 minutes earlier.

Dr. Charder's report opines that Mr. A. has a number of dynamic risk factors. These are his noncompliance with supervision, extended criminal history, general self-regulation problems and impulsivity, an antisocial orientation, the lack of family support in the community and the failure to complete sex offender treatment.

Dr. Charder's Testimony

Dr. Charder said the brains of people with psychopathy differ from those with only [*3]ASPD. She testified this had been demonstrated through neuroimaging and functional PET scans which indicated such brains are "structurally and functionally different" (50).[FN1] The autonomic nervous system of a psychopath differs from that of a person with only ASPD in that it is less reactive to the environment. A psychopath is "cold blooded" while a person with ASPD is "hot blooded". Brain scans have demonstrated this with respect to areas of the brain which "light up" when tested. Mr. A.'s history demonstrated that he was not responsive to consequences or the fear of punishment. The sympathetic nervous system promotes the reaction to environmental stimuli and includes the "fight or flight" response. In a psychopath, this system is less responsive. These individuals also have impaired executive control or moral judgment. Psychopathy is a different condition than ASPD. A person can have psychopathy but not ASPD. Individuals with psychopathy show lower blood flows to areas of the brain associated with emotion.

Psychopaths have also been found to have attentional focus on certain things which prevent them from seeing other things. Psychopaths are "often cold and calculating, callous, and not responsive to environmental cues" (76). Persons with ASPD are responsive to their environment. Persons with ASPD are more observable. Psychopaths don't necessarily recognize fear in another person. Psychopathy is "a condition which exists possibly outside of anti-social personality disorder" (78).

In the instant offense, Mr. A. met a woman at a food truck, spent time with her and then had consensual sexual intercourse. After a short period of time, he asked her to perform oral sex on him, she refused, he hit her until he knocked her out and then raped her. A passerby heard the victim's screams and Mr. A. then fled. Mr. A.'s tendency towards psychopathy was demonstrated during the instant offense because he was "very calculating that he had planned that he was going to make advances towards her" (80). Someone with only ASPD, Dr. Charder opined, would not have beaten and raped the victim because he would fear punishment and believe he had already achieved his objective of engaging in sex. The psychopath does not fear punishment. The fact that the Respondent performed the assault and rape in a public place (the steps of a church) where others would see him also indicated his psychopathic tendencies and the fact that he did not fear being caught. Regarding the contention that psychopathy is not just an extreme form of ASPD but is qualitatively different, Dr. Charder testified that "more research needs to be done to confirm it, but a lot of research shows that the brains are different" (84).

The 1997 sex offense in which Mr. A. threatened and raped the victim indicated he did not recognize the victim's fear and was "not controlling himself in any way" (88). The Respondent's psychopathy is distinguished from ASPD because "it involves a more calculating callous choice" (88). A person with ASPD would think more about the consequences and be less detached from the victim's feelings. Dr. Charder said that Mr. A.'s behavior "indicates to me that there may be a lower autonomic response". When the State, following up on this assertion, asked: "There may be . . . " Dr. Charder then responded: "There was likely" a lower autonomic response" (89). There is a connection between sex and violence for Mr. A. and his need for stimulation is abnormal as manifested by the fact that he raped a woman 40 minutes after she voluntarily agreed to have sex with him. Dr. Charder said the "psychopath would be more [*4]excited by the violent aspect" of a sex crime (apparently comparing that to someone with only ASPD) (91).

Mr. A. has fathered six or seven children and in his younger years was violent and sexual. She opined that Mr. A. had "fused" sex and violence" (91). She said that a person can have psychopathy without ASPD where they learn to mask their psychopathic tendencies and don't behave in anti-social ways like committing crimes. She said this conclusion was based on what "research is beginning to show" and that "over time we will learn more, and we need more research" (94). Mr. A. in his interview minimized his offenses, denied them or blamed victims. In a 1984 incident in Virginia, Mr. A. said he had met a 15 year old girl and been drinking with her. When she went home at 2:00 A.M. she got in trouble and then reported Mr. A. had battered her, forced her to stay with him and forced her to have sex. Mr. A. said, however, that he had not wanted to have sex on that occasion.

In the 1992 incident, Mr. A. had an ongoing dispute with another man at a boarding house and at one point simply stabbed the man "out of the blue" (97). The stabbing, in Dr. Charder's opinion, was "more of a calculated event than an impulsive response to a fight" (98). Dr. Charder compiled a PCLR, or "psychopathy checklist" score for Mr. A. The checklist is scored from 1-40 and Mr. A. received a score of 31. This indicated the Respondent was psychopathic. She testified that:

His volitional capacity is undermined by his psychopathy, and he chooses to do certain things, and does these things, despite any possible existence of future consequences, which he really doesn't think about. And that he has difficulty controlling these choices, because of his intense focus, which takes out all the peripheral stimuli, and leaves him with an intention or a behavior that results in the commission of the sex offense. (100).

The Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (the "DSM-5") does not define psychopathy as a separate disorder but says that "psychopathy and ASPD are essentially the same thing" (100). The DSM-5 says that the pervasive pattern of disregard for the rights of others which constitutes ASPD has been referred to as psychopathy.[FN2] Dr. Charder does not agree with that conclusion. Mr. A.'s ASPD has manifested itself throughout his lifetime and been characterized by the breaking of rules, irresponsibility, irritability and the lack of actions to legitimately support himself. Mr. A.'s psychopathy has made his actions less obvious and "created a condition where his acting on these behaviors is planned" (103). Dr. Charder opined that an Article 10 diagnosis need not be a sexual diagnosis to support a Mental Abnormality finding.

She noted that Mr. A.'s last offense occurred when he was 50 and that his psychopathy was entrenched and not likely to change. The condition is chronic although there are new avenues for treatment which are being worked on. ASPD is also chronic and can wane in some people with age beginning in the 40's but this has not occurred with Mr. A. "[A] very important part of the picture" of why Dr. Charder concluded Mr. A. has psychopathy concerns the instant offense (119). Her narrative of the instant offense, however, came from multiple sources including the Respondent who she also said was a pathological liar. The only diagnosis listed in the DSM-5 which Dr. Charder assigned to the Respondent was ASPD. She described psychopathy as a "condition" a "construct" or an "aggregation of . . . traits" (124). It is not the equivalent of a DSM diagnosis like pedophilia.

Research on the PCLR indicates that it tends to be strongly associated with violent or criminal behavior but weakly or inconsistently related to the number of a subject's sexual offense charges or convictions. There is one recent study, however, which demonstrated a strong correlation between a high PCLR score and sexual recidivism. Problems with the PCLR have been noted with respect to the "allegiance effect" which is the tendency of a person scoring the instrument to be biased towards the side of a dispute they are working for. Problems have also been noted with the instrument's "inter-rater reliability" meaning the degree to which two scorers using the same record reach the same result. However, Dr. Charder said, the instrument's inter-rater reliability has been found to be as high as 96% in trained individuals. She said studies which had shown problems with the allegiance effect and inter-rater reliability under the PCLR made a lot of incorrect assumptions.

Dr. Charder said she "relied on the [DSM-5] for offering a diagnosis" in this case (134). Explaining what she referred to as the Defendant's "grooming" of the victims of his two sexual offenses, Dr. Charder said:

I'm describing the planful callous manner in which he brought about this instant offense or the 1997 offense, either that there is a calculating manner in which he doesn't impulsively do this, that he does planfully act, but it's after a period of time of having charmed or manipulated the individual into a position where he can enact those behaviors. (135).

Dr. Charder testified that brain scans of people differed based on four diagnoses: psychopathy only, ASPD only, ASPD with psychopathy and normal controls. She said people were diagnosed with psychopathy primarily through the PCLR in these studies. She could not name the specific studies but said multiple studies had been done over a period of ten years. She provided the example of a serial killer who would have psychopathy without having ASPD. She said that such a person might lead a normal life apart from his serial murders and would not be diagnosed with ASPD because he "had all the trimmings and trappings of a normal life" (138). Even when you factored in a knowledge about the murders, this person would not necessarily have ASPD but might only have psychopathy. The factors outlined in the PCLR are similar to but not identical to the diagnostic criteria for ASPD in the DSM-5.

Explaining the differences in the brains of persons with ASPD vs. psychopaths, Dr. Charder said:

The area of the amygdala, the emotional center was more active [in the person [*5]with ASPD]. In the anti-socials as was the — in the psychopath the amygdala, bilaterially, the right side was larger than the left side which indicated that there was a deficit in processing language and emotional language, emotional faces and understanding emotional words, and reacting to emotional words. Those things were different. They were stronger and better functioning in the anti-social disorder than in the psychopath (144).

And the gray matter, which would conduct the neurotransmitters regarding moral development from the frontal, which is where we think and learn and process those things there was less gray matter and less connection. Id.

Dr. Charder asserted that not all psychopaths demonstrated the same brain scans. There was a difference in brain scans between "successful" and "unsuccessful" psychopaths and "therefore, their brains looked a little bit different than the ones who were successful or the ones who got caught, if that makes sense. The unsuccessful psychopaths have less frontal lobe matter and so on." (145). She testified that "there are also thoughts that there is a primary and a secondary psychopath. And that the primary psychopath is successful, and isn't caught, and the secondary, which is more anti-social is the one who is caught. Now, those are just theories. There are lots of theories" (76). She acknowledged that neither the PCLR nor the DSM-5 were based on such asserted brain abnormalities. When asked whether there were "studies that show that there's a correlation between the brain responses of a psychopath and their results of the PCLR", Dr. Charder replied: "I do not believe that there have been such studies. There should be studies like that." (149). She said studies have demonstrated that persons with a high PCLR score also have brain deficiencies.

Regarding a person with psychopathy, as compared to one with ASPD, "their behavior is more controlled" (150). The psychopath [as compared to someone with ASPD] "knows how to behave, knows what they need to do in order to get what they desire". Id.

Evaluation by Dr. Katsavdakis Dr. Katsavdakis determined in a letter dated January 3, 2015 that Mr. A. suffered from ASPD with narcissistic features. In a second letter on January 31, 2015, he also opined that Mr. A., "[o]n a preliminary basis" had "psychopathic character pathology" which was not equivalent to ASPD. According to Dr. Katsavdakis: "While there is some overlap between [ASPD] and psychopathy, the construct of psychopathy covers, in additional [SIC] to criminal /behavioral disruptions, interpersonal and affective dimensions and places additional spotlight on lifestyle patterns and nature/context of early developmental factors".

CONCLUSIONS OF LAW

State v. Donald DD. In Donald DD., the Court's four judge majority held "evidence that a respondent suffers from antisocial personality disorder cannot be used to support a finding that he has a mental abnormality . . . when it is not accompanied by any other diagnosis of mental abnormality". 24 [*6]NY3d at 177.[FN3] The Court noted that the United States Supreme Court in the second of its two seminal decisions on sex offender civil management, Kansas v. Crane, 534 US 407, 413 (2002) held that as a matter of substantive due-process, sex offender civil management statutes "must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." State v. Donald DD., supra, 24 NY3d at 189 (emphasis added in Donald DD.). The Donald DD. majority said the evidence during the trial indicated that up to 80% of persons who have been imprisoned could be diagnosed with ASPD. These statistics, the Court opined, indicated a diagnosis of ASPD alone was insufficient as a matter of constitutional due-process to distinguish sex offenders subject to civil management from ordinary recidivists.

This Court respectfully disagrees with the reasoning process which the Donald DD. majority used to determine that ASPD alone cannot serve as the predicate for a Mental Abnormality, although this Court believes there are other valid arguments which might be advanced to support the same conclusion.[FN4] Simply because most prison inmates can be diagnosed with ASPD does not mean most prison inmates could also be subject to Article 10 because of such a diagnosis. As this Court outlined in more detail in State v. Michael R., supra, the vast majority of convicted offenders who have been diagnosed with ASPD are not even statutorily eligible for civil management. Of those who are eligible a much smaller fraction prior to Donald DD. had become subject to Article 10 and a still smaller percentage had been found to have a Mental Abnormality. Allowing ASPD alone to serve as a Mental Abnormality predicate would thus not expose 80% of the prison population to SOMTA. This Court estimated in Michael R. that such a permissible sole diagnosis had served to subject less than 1/10 of 1% of the prison population to sex offender civil management. 2014 NY SlipOp at 17.[FN5]

Judge Graffeo's three judge dissenting opinion in Donald DD. asserted that "[t]he fundamental flaw [in the majority's reasoning] is that it equates a congenital or acquired condition, disease or disorder' with a mental abnormality,' thereby requiring that the predicate disorder itself inherently include the additional predisposition and impulse control elements of [Article 10]. (citation to majority opinion omitted). This interpretation directly conflicts with the language of the statute . . ." State v. Donald DD., supra, 24 NY3d at 194 [Graffeo, J. dissenting]. It is also clear, in this Court's view, that as a factual matter ASPD alone can predispose a small minority of offenders with that diagnosis to commit sex offenses and result in serious difficulty in controlling such conduct. In seven years of presiding over Article 10 cases, this Court cannot recall any expert ever expressing a contrary view although the Donald DD. majority appeared to characterize the testimony of the Respondent's expert in that case, Dr. Plaud, as standing for the proposition that it is simply impossible for ASPD alone to result in a valid Mental Abnormality finding. See quotation from Dr. Plaud infra.

Application of Donald DD. to the Instant Case

Notion that an Article 10 Predicate Must be a Sexual Disorder

In addition to its basic holding, Donald DD. is relevant to the instant case in two ways. First, the majority's ruling strongly implied that a valid Mental Abnormality predicate had to be a sexual disorder. In the instant case, it is undisputed that the Respondent has not been diagnosed with a sexual disorder. Thus, the majority held:

Its use [that is, the use of ASPD as a predicate disorder under Article 10] in civil confinement proceedings, as the single diagnosis underlying a finding of mental abnormality as defined by Mental Hygiene Law article 10, proves no sexual abnormality. It therefore cannot be the sole diagnosis that grounds such a finding. 24 NY at 190.

The majority also favorably cited arguments by the Respondent that ASPD was not a valid Article 10 predicate because it was not a sexual disorder:

We believe that an ASPD diagnosis has so little relevance to the controlling legal criteria of [Article 10] that it cannot be relied upon to show mental abnormality . . . As Donald DD.'s counsel expressed the objection, ASPD is "not a sexual disorder". Id.

Dr. Plaud, testifying for Donald DD., opined that while ASPD can act "in combination with . . . a diagnosable sexual disorder" to produce a potent abnormal condition, it cannot "in and of itself. . . predict sexual impulse control". Id. (emphasis added).[FN6]

In a recent 3-2 decision, however, the Third Department held the trial court erred in dismissing a petition based on Donald DD. even though the diagnoses in the case included no sexual disorder. State v. Richard TT., 2015 NY SlipOp 06557, 2015 WL 4757717 (August 13, 2015). The Respondent in Richard TT. was diagnosed with ASPD, psychopathy, Borderline Personality Disorder ("BPD") and cannabis and alcohol abuse. The majority found the evidence sufficient, focusing on the Respondent's sex crimes and the relationship between his diagnosed conditions and criminal sexual conduct. The decision noted that with respect to BPD, the Respondent's expert had testified that this condition could lead a person to "exhibit impulsive sexual behavior" and that Richard TT. had a "high degree of sexual preoccupation" and "hypersexuality". 2015 NY SlipOp at 3. The majority held the evidence indicated "that respondent has a variety of disorders that can lead not only to a generalized willingness to commit crimes, but impulsive sexual behavior in particular". Id. Justice Tormey also denied a post-Donald DD. motion to dismiss a Mental Abnormality finding which pre-dated Donald DD. where the Respondent had been diagnosed with ASPD, BPD and substance abuse. State v. Glen T., (Unreported Decision) (Oneida County Supreme Court, April 16, 2015).

The dissenting Richard TT. justices held the trial court properly dismissed the petition based on Donald DD. Like the diagnosis of ASPD alone, the dissenters noted, the diagnoses in Richard TT. had no "necessary relationship to a difficulty in controlling one's sexual behavior". 2015 NY SlipOp at 5, quoting Donald DD., 24 NY3d at 191. In this Court's view, the dissenting justices in Richard TT. accurately construed Donald DD. The Richard TT. majority did not cite evidence that BPD or BPD with ASPD had any more necessary connection to sexual offending than ASPD alone or explain why the Donald DD. court's notion that disorders must be sexual to withstand due-process scrutiny did not apply to Richard TT. Richard TT. was clearly driven to commit sex crimes by a mental pathology and exhibited horrific sexually offending behaviors. But so do Article 10 respondents who are only diagnosed with ASPD.

The First Department has also recognized that an independent "condition, disease or disorder" under Article 10 and Donald DD. will not exist merely because an offender demonstrates particular sexually offending behaviors or traits. State v. Gen C., 128 AD3d 467 (1st Dept 2015). In that case the Court held that "hypersexuality/sexual preoccupation" did not constitute an independent condition under Article 10 which would be sufficient, with ASPD, to demonstrate the Respondent had a Mental Abnormality.

Psychopathy as a Sufficient Independent Predicate Under Donald DD.

The second way in which Donald DD. implicates the instant question apart from its basic holding came in the following footnote which the majority inserted following their discussion that both of the State's expert witnesses had diagnosed the Respondent with ASPD:

In addition, both experts opined that Donald DD. suffered from an extreme form of ASPD known as psychopathy. However, they did not testify that this finding materially affected their conclusions regarding Donald DD.'s mental abnormality under article 10. n. 3.

Thus, the Court found both that the psychopathy diagnosis in Donald DD. did not result in a valid Mental Abnormality finding and that psychopathy was just "an extreme form of ASPD". As will be seen infra that latter conclusion is consistent with the manner in which psychopathy is [*7]treated in the DSM-5.

The two dissenting justices in Richard TT. explained in a footnote why this determination necessarily led to the conclusion that ASPD with psychopathy was no more a valid diagnosis under Donald DD. than ASPD alone. Noting that one of the State's experts in Richard TT. had, like the Court of Appeals, described psychopathy as "an extreme form of [ASPD]" the dissenters pointed out that "[i]f psychopathy is [as the State's doctor testified], only different in degree — but not in kind — from ASPD, it follows that psychopathy would also lack the requisite necessary relationship with control over one's sexual behavior." Richard TT., supra, [McCarthy, J., dissenting, n. 3].

Trial Court Decisions Considering the Instant Question

Many Article 10 respondents have been diagnosed with ASPD and psychopathy but not a sexual disorder. Donald DD.'s lack of clarity about whether such a diagnosis imposes an absolute bar to an Article 10 petition has spawned a wave of dismissal motions. The trial court rulings on these motions have largely come thus far in unreported decisions, arisen in different procedural contexts and not been uniform. The clear weight of authority, however, has held that where a Respondent is diagnosed with ASPD and psychopathy but no sexual disorder, Donald DD. requires the petition's dismissal.[FN7] The Third Department's recent 3-2 decision in Richard TT. is a notable and at this moment controlling appellate precedent. But that case must also be read in accordance with the majority's determination that the unique combination of disorders diagnosed in the case and their sexually offending outcomes were sufficient to overcome the Donald DD. bar.

Justice Farber of this court provided a particularly cogent analysis of the psychopathy issue in his decision in State v. Maurice G., 47 Misc 3d 692 (New York County Supreme Court 2015) where he granted the Respondent's motion to dismiss the petition. He noted that the State in that case had argued that a crucial distinction between ASPD and psychopathy was that psychopathy was a rarer and more extreme condition. Thus, the State argued, the concern that allowing ASPD to serve as a Mental Abnormality predicate would cast too wide a net to withstand due-process scrutiny did not apply with the same force to an offender diagnosed with both ASPD and psychopathy. Justice Farber noted, however, that the Court of Appeals' concern about ASPD was not only that it cast a wide net but that it was not a sexual disorder, a characteristic it shared with psychopathy.

In State v. Richard V., (Unreported Decision) Ind. No.251703/13 (Bronx County Supreme Court, May 29, 2015 [Hubert, J.]) the Court granted summary judgement dismissing the State's Article 10 petition where the Respondent had been diagnosed with ASPD, psychopathy, Opiod Use Disorder, "sexual preoccupation", "cognitive distortions and impulse control issues". Relying on Donald DD., the Court found psychopathy was simply "a more extreme form of ASPD" (p. 3) and that the Respondent's "high degree of psychopathy" did not warrant civil management. (p. 7). That same court, however, denied a motion to dismiss a petition at the pleading stage where the State alleged the Respondent suffered from ASPD and psychopathy. State v. Clifford Miles (Unreported Decision) Ind. No. 250553/14 (Bronx County Supreme Court, [*8]January 22, 2015).

The Court found a diagnosis by Dr. Charder of Intermittent Explosive Disorder and Other Specified Personality Disorder, Personality Disorder with Anti-Social Traits analogous to ASPD and dismissed the petition pursuant to CPLR 3211 (a) (7) after a probable cause hearing in State v. James Black (Unreported Decision) Ind. # 3041/14 (Kings County Supreme Court, February 19, 2015 [Ozzi, J.]). The Court relied both on Donald DD.'s assertions about the validity of ASPD as a Mental Abnormality predicate and the new standards for volitional control outlined in Donald DD.'s companion case (under the same caption) State v. Kenneth T. (discussed infra). In State v. Sean B., (Unreported Decision) Ind. # 2013-1514 CV (Steuben County Supreme Court, January 29, 2015 [Latham, J.]) the Court dismissed a petition pursuant to CPLR 3211 (a) (7) following a probable cause hearing where the Respondent was alleged to have ASPD and severe alcohol use disorder. The Court noted that "[i]n general alcohol use disorder does not (in and of itself) predispose someone to commit sexual offenses" (p. 3).

Justice Wittner of this Court granted the Respondent's motion to dismiss an Article 10 petition based on Donald DD. where he had been diagnosed with ASPD, psychopathy and other conditions in State v. Richard Lebron, (Unreported Decision) Ind. # 30157/14 (New York County Supreme Court, January 15, 2015). The Court reached the same conclusion in granting dismissal motions in State v. Bruce Harley, (Unreported Decision) Ind. # 391/13 (Westchester County Supreme Court, December 23, 2014 [Cacace, J.]) and State v. Ezikiel Ross, (Unreported Decision) Ind. # 3549/14 (Kings County Supreme Court, March 5, 2015 [D'Emic, J.]). That latter court, on the other hand, refused to reverse a prior probable cause finding which pre-dated Donald DD. in its decision in State v. Kevin J., 48 Misc 3d 492 (Kings County Supreme Court 2015).

In Kevin J., the Respondent had been diagnosed with ASPD, psychopathy and displayed "some aspects of sexual deviance and sexual sadism" although he was not formally diagnosed with those conditions. 48 Misc 3d at 508. Justice D'Emic found that Donald DD. "did not address the impact of a psychopathy diagnosis" and that there was no basis for concluding that "psychopathy should be deemed to be merely a form of ASPD." Id. The Court also denied a motion to dismiss a petition at the pleading stage in State v. Victor Hardy, (Unreported Decision) Ind. # 117/14 (Kings County Supreme Court, July 9, 2015 [Riviezzo, J.]). There, the Court found the Respondent's diagnoses of ASPD, psychopathy, stimulant use disorder and hypersexuality distinguished him from the Donald DD. respondent and that "the Donald DD. Court did not hold, as a matter of law, that there must be a finding or diagnosis of a sexual mental condition or disorder to support a finding of a mental abnormality' . . ." citing State v. Kevin J., supra. In State v. James Maxwell, (Unreported Decision) Ind. # 692/09 (Orange County Supreme Court, May, 2015 [DeRosa, J.]) the Court denied a motion to set-aside a pre-Donald DD. jury verdict. There, the Respondent was diagnosed with a psychotic disorder, not otherwise specified, cannabis dependence and given a provisional diagnosis of the sexual disorder of Exhibitionism.

Trial Evidence in Instant Case The State was thus faced here with a legal landscape where the Court of Appeals had all but held both that a Mental Abnormality had to be premised on a sexual disorder and that [*9]psychopathy was merely an extreme form of ASPD and thus could not qualify. The weight of trial court authority had also reached the same conclusion. Indeed, having presided over multiple Article 10 proceedings, this Court has always understood psychopathy as the Court of Appeals in Donald DD. described it: as a more extreme form of ASPD. To rebut these authorities, the State presented the testimony and report of a single witness, Dr. Frances Charder, to support an argument that psychopathy was qualitatively different from ASPD and thus should be sufficient to establish probable cause to believe Mr. A. suffered from a Mental Abnormality.

The Court found Dr. Charder to be sincere, informed, intelligent and interesting. The Court credited Dr. Charder's conclusion that Mr. A. suffers from ASPD and psychopathy and that these conditions predisposed him to commit sex offenses. This Court has determined, however, that the State did not establish probable cause to believe Mr. A. has a Mental Abnormality. First, the Court did not find Dr. Charder's conclusion that psychopathy was qualitatively from ASPD with respect to its use in an Article 10 proceeding persuasive. Second, Dr. Charder's testimony indicated that offenders with psychopathy, and more particularly the Respondent, exhibit greater volitional control than those with ASPD alone. This, in the Court's view, demonstrated that psychopathy is a less valid predicate than ASPD under Article 10, not one with greater validity.

Psychopathy as a Qualitatively Different Disorder The first problem with Dr. Charder's thesis (aside from the fact that it is contrary to what the Court of Appeals said in Donald DD.) is that it is also contrary to the DSM-5, the primary diagnostic manual used in the psychiatric profession. An Article 10 "condition, disease or disorder", of course, need not line up precisely with a diagnosis defined by the DSM. State v. Shannon S., 20 NY3d 99, 106 (2012). But that is different from saying it is permissible for a court to construe an Article 10 condition in a manner which is directly refuted by the psychiatric profession's primary diagnostic manual. As noted supra, the DSM-5's description of the diagnostic features of ASPD notes that ASPD "has also been referred to as psychopathy . . ." (emphasis in original). Dr. Charder testified that according to the DSM-5 "psychopathy and ASPD are essentially the same thing" (100). Dr. Charder's contention during the hearing, however, was precisely the opposite even though she also testified that she relied upon the DSM-5 to arrive at her diagnosis. As the Respondent further points out, moreover, Dr. Charder provided multiple characterizations for what psychopathy is. She referred to it as a "dimensional construct" (Report, p. 15), a "condition" (48), something where "research will eventually show that it is a disease" Id., a "biological, neuro-biological situation" (74), "a brain abnormality" (57), "an evolutionary process which has occurred in the brain" (75), a "tendency" (79) and a "specifier" (119).

Dr. Charder's use of brain scan evidence to support her position was fascinating. But it was also ultimately unpersuasive as a demonstration that there was probable cause to believe Mr. A. had a Mental Abnormality for multiple reasons. First was the expertise of Dr. Charder herself. Dr. Charder is not a neurologist. She is not even a medical doctor. She is a highly trained psychologist and indeed teaches medical students. Her conclusions about brain scan evidence and psychopathy, however, came primarily from a literature review. The assertion that a person with psychopathy can be definitively discerned by brain scans would have been more persuasive to this court had it had come from a medical doctor who was an expert in the biology [*10]of the brain.[FN8]

Dr. Charder at some points, in the Court's view, ventured into the realm of speculation when she attempted to correlate specific brain scan patterns not only with the "construct" of psychopathy in general but to even more precise conclusions. For example, she said there was a difference in brain scans between "successful" and "unsuccessful" psychopaths and "therefore, their brains looked a little bit different than the ones who were successful or the ones who got caught, if that makes sense. The unsuccessful psychopaths have less frontal lobe matter and so on." (145). But Dr. Charder did not cite any study to support that conclusion nor is it clear to this Court how any such analysis could even be conducted. What diagnostic criteria would distinguish the "successful" from the "unsuccessful" psychopath? Indeed, Dr. Charder herself commented at a different point in her testimony regarding the same issue: "Now, those are just theories. There are lots of theories" (76).

Dr. Charder also did not conduct or review any brain scans of the Respondent. Indeed, she apparently would not be qualified to conduct one. She rather diagnosed him with psychopathy based partly on his PCLR score and then cited brain scan research concerning other subjects who had a PCLR score or other evidence demonstrating psychopathy. She was generally unable to cite specific studies or their specific results. She also acknowledged that neither the DSM-5 nor the PCLR were based on the kind of brain scan evidence she cited. She acknowledged there were no studies which correlated PCLR scores with brain abnormalities. The Court understood that to mean it could not be said that a person with a given PCLR score would have a specific type of brain abnormality. She testified that "[t]here should be studies like that." (149).

The PCLR is also an assessment tool with multiple flaws. It has been found in some studies to have an "allegiance effect" pursuant to which a subject's score will be impacted by which side of a dispute a reviewer is working on and also been found to have deficiencies in "inter-rater reliability" meaning that two reviewers using the same information can arrive at different scores. The degree of these problems is debatable and Dr. Charder maintained that notwithstanding the instrument's problems, it has been determined to be reliable when used by trained evaluators like herself. The PCLR, however, obviously requires subjective judgments and can be infused with bias. Dr. Charder also acknowledged that the factors outlined in the PCLR are similar to but not identical to the diagnostic criteria for ASPD outlined in the DSM-5, again undermining the contention that ASPD and psychopathy are qualitatively different. She acknowledged that the PCLR was a tool which was better at predicting general recidivism than sexual offending.

The Court also did not credit Dr. Charder's conclusion that the specific sexual crimes Mr. A. committed arose from ASPD with psychopathy, rather than ASPD alone. Dr. Charder testified that Mr. A.'s rape of the victim during the instant offense 40 minutes after having consensual sex with her in a setting where he could be caught demonstrated that his "behavioral choices went beyond what the anti-social individual would have chosen in this instant offense, as [*11]well as [the previous conviction]." (85). She opined, with respect to the instant offense, that a person with only ASPD would have terminated the sexual assault when the victim resisted based on his fear of punishment and desire to perhaps engage in consensual sexual relations with the victim at a different time.

In the Court's view, however, the attempt to correlate specific moment to moment behaviors and choices with ASPD with psychopathy rather than ASPD alone was unpersuasive. Persons with ASPD obviously commit horrible crimes and do so under circumstances where they can be easily caught all of the time. Criminal offenders generally often act recklessly and contrary to their self-interest. The Court of Appeals in State v. Kenneth T. cautioned with respect to assessments of volitional control that "it is rarely if ever possible to say, from the facts of a sex offense alone, whether the offender had great difficulty in controlling his urges or simply decided to gratify them, though he knew he was running a significant risk of arrest and imprisonment." 24 NY3d at 188. Prior to Kenneth T., inferences about volitional control drawn from sexually offending behaviors were a staple of Article 10 expert testimony. The categorical assertion by the Court of Appeals that such conclusions will now be invalid as a matter of law in all but the rarest cases leads this Court to believe the Court of Appeals would apply a similar exacting standard to inferences derived from sexually offending behaviors in other closely related contexts as well. As noted supra, "a very important part of the picture" of why Dr. Charder concluded Mr. A. has psychopathy was derived from his conduct during the instant offense (119).

The Tentative Nature of Dr. Charder's Conclusions

Dr. Charder repeatedly described her own conclusions about psychopathy as tentative. She testified that "research is beginning to show" that a person can have psychopathy without ASPD where that person has learned to mask their psychopathic tendencies and that "over time we will learn more, and we need more research" (94). Regarding the contention that psychopathy is not just an extreme form of ASPD but is qualitatively different, Dr. Charder testified that "more research needs to be done to confirm it, but a lot of research shows that the brains are different" (84).

After initially testifying that Mr. A.'s behavior "indicates to me that there may be a lower autonomic response" (emphasis added), upon being questioned by the State as to whether such a conclusion was indeed unclear, quickly said this was "likely" (89). She said that psychopathy is "a condition which exists possibly outside of anti-social personality disorder" (78) (emphasis added). But such a possibility is not sufficient to establish probable cause when the Court of Appeals has held that ASPD is an insufficient Mental Abnormality predicate.

Two other facts concerning Dr. Charder are notable. First, she is an employee of the State, one of the parties in this case, and has been so for ten years. Second, she believes the Court of Appeals was incorrect in concluding that ASPD alone cannot be a valid Article 10 predicate. This Court of course holds an equivalent view. In this Court's experience, that view was also uniformly held by experts in the field prior to Donald DD. But the fact that Dr. Charder would have opined that Mr. A. had a Mental Abnormality even if her entire thesis concerning the qualitative difference between ASPD and psychopathy were wrong is also relevant in understanding her views.

Dr. Katsavdakis's Assessment

The very brief written assessment of the Respondent provided by Dr. Katsavdakis, in the [*12]Court's view, provided little additional evidence to support a probable cause finding. The only full diagnosis Dr. Katsavdakis assigned to the Respondent was ASPD with narcissistic features. He also opined that on a "preliminary basis", Mr. A. had "psychopathic character pathology". He said that psychopathy includes traits beyond what a person with only ASPD would have. He did not assign the condition of "psychopathy" to the Respondent, however, explain the difference, if any, between that condition and "psychopathic character pathology", indicate what the proviso that Mr. A. had psychopathic character pathology on a "preliminary basis" meant or explain whether he believed psychopathy was qualitatively different from ASPD under Article 10. The Court knows Dr. Katsavdakis from other Article 10 proceedings to be a very capable expert in sex offender evaluation. In this case, however, he was not called to testify during the hearing and did not even write a written evaluation. The Court found his assessment, which explained his diagnostic conclusions in all of six sentences, of little value.

The Relationship Between Psychopathy and Volitional Control Dr. Charder testified that when compared to persons with ASPD, those with psychopathy are less reactive to their environment. Psychopaths, she testified, are "cold-blooded" while persons with ASPD are "hot blooded". A psychopath, when compared to someone with only ASPD, has less fear of being caught. She also repeatedly said, however, that psychopaths are distinguished from persons with only ASPD by their higher degree of volitional control. Thus she testified:

That during the instant offense, Mr. A. was "very calculating that he had planned that he was going to make advances towards her [the victim]" (80).

When compared to ASPD, psychopathy "involves a more calculating callous choice" (88).

The Respondent's 1992 stabbing was "more of a calculated event than an impulsive response to a fight" (98).

Mr. A.'s psychopathy has "created a condition where his acting on these [sexually offensive] behaviors is planned" (103).

Regarding both of the Respondent's sexual offenses: "I'm describing the planful callous manner in which he brought about this instant offense or the 1997 offense, either that there is a calculating manner in which he doesn't impulsively do this, that he does planfully act, but it's after a period of time of having charmed or manipulated the individual into a position where he can enact those behaviors." (135).

When compared to a person with ASPD, a psychopath's "behavior is more controlled." (150). The psychopath "knows how to behave, knows what they need to do in order to get what they desire". Id.

Dr. Charder also testified, to the contrary, that certain aspects of Mr. A.'s behavior [*13]demonstrated an absence of control. Thus she said psychopaths have impaired executive control or moral judgment. Describing the 1997 offense, she said Mr. A. was "not controlling himself in any way" (88). She opined that psychopathy impaired Mr. A.'s volitional capacity. But the bulk of her assessments concerning Mr. A.'s ability to control his behavior supported the contrary conclusion. Some of her other conclusions about psychopathy also seemed contradictory in other respects. For example, she repeatedly said that a psychopath is cold blooded and does not respond to emotional cues. She said that for Mr. A., sex and violence had become fused, a conclusion which was supported by his criminal history. She then opined, however, that a "psychopath [distinguished by his cold blooded disconnection from emotions] would be more excited by the violent aspect" of a sex crime (91) (emphasis added) (apparently comparing a psychopath in that regard to a person with ASPD alone).

In order for a Mental Abnormality to be found, of course, a respondent must have "serious difficulty in controlling" sexually offending behavior. Dr. Charder's testimony, if credited, demonstrated the opposite. It demonstrated that psychopaths are distinguished by their "planful", callous, calculating, non-impulsive, deliberate choices to offend. This, she testified, contrasted with ASPD offenders who were more reactive to environmental stimuli. As this Court outlined in great detail in its decision in State v. Floyd Y., 46 Misc 3d 1225 (New York County Supreme Court, March 10, 2015), the Court of Appeals in State v. Kenneth T. supra, imposed what this Court believes are rigorous new standards for demonstrating the absence of volitional control under Article 10. Those standards may be impossible to meet in most Article 10 cases. But the absence of probable cause in this case does not arise from these new standards. Dr. Charder, the State's only witness, clearly testified that Mr. A.'s offenses were the result of planned, deliberate, controlled choices.

As this Court also outlined in Floyd Y., Mr. A.'s volitional control does not mean he is not dangerous. A rapist who rapes because he is in control of his actions is not necessarily less dangerous than an offender who has committed the identical rapes because he is driven by an irresistible compulsion. Indeed, the calculating sex offender may be much more dangerous than one who responds to irresistible urges. There is no question, in this Court's view, that Mr. A. is dangerous. Indeed, at the age of 50, when the vast majority of sexual offenders have already aged out of their offending behaviors, he committed a rape. The absence of volitional control requirement has been inserted into civil management statutes not to distinguish more from less dangerous offenders. It has been inserted because of what has been held to be the requirements of due-process.

This Court did not credit Dr. Charder's conclusion that psychopathy was qualitatively different from ASPD for all of the reasons outlined supra and believes the instant petition must be dismissed by virtue of Donald DD. on that basis alone. But even if that was not the case, the result here would be the same. The State's only witness clearly testified that Mr. A.'s criminal behaviors were the result of the presence rather than absence of volitional control. He therefore cannot be subject to Article 10. For all of those reasons, the petition is dismissed. This order shall be stayed until October 8, 2015 in order to provide the State an opportunity to seek a stay of this Court's Decision and Order by the Appellate Division.

[*14]September 8, 2015______________________

Daniel Conviser, A.J.S.C. > Footnotes

Footnote 1:Numerical citations are to page numbers of the hearing transcript.

Footnote 2:The precise language and punctuation of the DSM-5 on this point are important. Under the heading "Antisocial Personality Disorder" after listing the disorder's diagnostic criteria, the publication then provides under the heading "Diagnostic Features" the following: "The essential feature of antisocial personality disorder is a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood. This pattern has also been referred to as psychopathy, sociopathy, or dyssocial personality disorder. DSM-5, p. 659 (emphasis in original).

Footnote 3:Prior to the Court's decision, the Second and Third Departments had held that an ASPD diagnosis alone was a sufficient predicate for a Mental Abnormality finding. Matter of State v. Andrew J.W., 85 AD3d 805 (2d Dept 2011); State v. Donald DD., 107 AD3d 1062 (3d Dept 2013), reversed, Donald DD., supra. The Fourth Department had held that "personality disorders" could be a sufficient predicate for a Mental Abnormality finding and rejected the argument that a condition, disease or disorder under Article 10 had to include a sexual component. State v. Nervina, 120 AD3d 941 (4th Dept 2014). Courts in numerous other states have also found ASPD alone a valid predicate for sex offender civil management. See, Donald DD, supra, 24 NY3d at 198-199 [Graffeo, J., dissenting].

Footnote 4:This court explored the arguments for and against allowing ASPD alone to serve as a predicate for a Mental Abnormality in its decision in State v. Michael R., 42 Misc 3d 1222 (A) (New York County Supreme Court 2014), which predated the Court of Appeals decision in Donald DD.

Footnote 5:The Donald DD. majority clearly understood the fact that only a small percentage of offenders with ASPD were subject to Article 10 but did not find this fact dispositive in their due-process analysis. See Donald DD., 24 NY3d at 182-184 (discussing expert testimony on the subject).

Footnote 6:The notion that Article 10 requires a diagnosed sexual disorder would not only implicate ASPD or ASPD with psychopathy cases. It would also mean an offender who was driven to commit sex crimes because of a non-sexual psychotic illness could not be subject to Article 10.

Footnote 7:This Court has cataloged the unreported decisions on this topic it is aware of but given that such decisions are unreported may have missed some.

Footnote 8:The Respondent vigorously objected during the hearing to allowing Dr. Charder to discuss the brain scan evidence at all, given her lack of medical training. The Court overruled that objection, holding the objection went to the weight rather than the admissibility of Dr. Charder's testimony.