Matter of State of New York v Anthony L.

[*1] Matter of State of New York v Anthony L. 2017 NY Slip Op 51375(U) Decided on October 6, 2017 Supreme Court, Kings County Riviezzo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 6, 2017
Supreme Court, Kings County

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

against

ANTHONY L., Respondent, For Civil Management Pursuant to Article 10 of the Mental Hygiene Law.



6805/2015



For the petitioner:

Elizabeth Prael, Esq.

Office of the Attorney General

120 Broadway

New York, New York 12224

For the respondent:

Bruce Harris, Esq,

Mental Hygiene Legal Service

Appellate Division

One Metrotech Center North, 3rd Floor

Brooklyn, New York 11201
Dineen A. Riviezzo, J.

Respondent Anthony L. is subject to a petition for civil confinement pursuant to Mental Hygiene Law ("MHL") article 10. This Court has already determined, after a hearing, that there is probable cause to believe that the respondent is a sex offender requiring civil management pursuant to MHL §10.06(g). Respondent now moves for summary judgement pursuant to Civil Procedure Law Rules ("CPLR") § 3211 (a)(7) dismissing the petition in its entirety, with prejudice, for failure to state a cause of action based upon the Court of Appeals' decision in the Matter of State of New York v Donald DD. (24 NY3d 174, 996 N.Y.S.2d 610, 2014 NY LEXIS 3161 [2014]). The State [*2]opposes the motion and asserts that the petition for civil management containing the report of Dr. Jonathan Miljus, a psychiatric examiner with the New York State Office of Mental Health ("OMH"), along with the testimony of Dr. Miljus at the probable cause hearing, raise sufficient issues of fact to defeat respondent's motion for summary judgement.

In Donald DD., the Court of Appeals ruled that evidence that a respondent suffers from antisocial personality disorder ("ASPD") cannot be used to support a finding that he has a "mental abnormality," as defined by the Mental Hygiene Law, when that diagnosis is not accompanied by "any other diagnosis of mental abnormality" (Donald DD., 24 NY3d 174, 996 N.Y.S.2d 610, 2014 NY LEXIS 3161 [2014]). Respondent asserts that his alleged diagnoses of ASPD; stimulant use disorder, severe, in sustained remission; and cannabis use disorder, moderate, in a sustained remission cannot form the basis of a finding of mental abnormality under Donald DD. because the diagnoses that are in remission cannot establish by clear and convincing evidence a "current functional impairment contributing to a legal finding of a mental abnormality" (emphasis added). (Respondent's motion, ¶ 5).

Legal Conclusion

On a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the movant makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement (Zuckerman v City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]). In addition, conclusory allegations are not sufficient to defeat the motion (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 257 N.E.2d 890, 309 N.Y.S.2d 341 [1970]). Pursuant to CPLR § 3212(f), the court may deny a motion for summary judgment, "should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated" (CPLR § 3212[f]).

This Court cannot state, as a matter of law, that respondent has eliminated any material issue of fact from this case. The Court of Appeals held in Donald DD. that a diagnosis of ASPD cannot be the sole diagnosis that grounds a finding of a mental abnormality because ASPD alone is not "a condition disease or disorder that affects that 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 . ." (Donald DD., 24 NY3d at 190-191) (emphasis in the original). The Court of Appeals concluded that the "Supreme Court erred in using an ASPD diagnosis, together with testimony concerning Donald DD.'s sex crimes, but without evidence of some independent mental abnormality diagnosis, to ground a finding of mental abnormality within the meaning of Mental Hygiene Law article 10" (Id. at 191).

The Donald DD Court did not hold, as a matter of law, that there must be a finding or diagnosis of a sexually related condition or disorder to support a finding of a "mental abnormality" as defined in Article 10 (see Matter of the State of New York v. Kevin J., 48 Misc 3d 492 (Sup. Ct. Kings Cty. April 13, 2015) (D'Emic, J.)). In fact, the Court of Appeals has reiterated that no Diagnostic and Statistical Manual of Mental Disorders ("DSM") diagnosis is needed for a finding [*3]of a mental abnormality (Matter of State of New York v Shannon S., 20 NY3d 99; 980 N.E.2d 510; 956 N.Y.S.2d 462; 2012 NY LEXIS 3264 [2012].

In a series of three companion cases that followed Donald DD, the Court of Appeals sought to clarify what constitutes legal sufficiency of a mental abnormality for purposes of article 10 where the three respondents were diagnosed with "conditions, diseases and/or disorders in addition to ASPD" (Matter of the State of New York v. Dennis K. & Anthony N. & Richard TT., 27 NY3d 718, 727 (2016)). In each case, the Court found that the additional diagnoses were legally sufficient for a finding of a mental abnormality (Id. at 730, 738, 746)(Dennis K. — paraphilia NOS (non-consent) and ASPD; Anthony N. — ASPD, borderline personality disorder, alcohol abuse and polysubstance disorder; Richard TT. — ASPD, borderline personality disorder, psychopathy). Further, the Court reiterated its holding in a previous case, Matter of State of New York v. Shannon S., 20 NY3d 99 (2012), that a finding of a mental abnormality need not be based on a diagnosis of a mental disease or disorder that is listed in the DSM, "recognizing that section 10.03(I) 'does not reference or require that a diagnosis be limited to mental disorders enumerated within the DSM'" (Id. at 727 citing Shannon S. 20 NY3d at 105-106).

Various holdings in these three cases are relevant to this proceeding. First, in Anthony N., respondent was diagnosed with ASPD and borderline personality disorder. The Court, when discussing the sufficiency of the evidence, specifically held that "[s]ection 10.03(i)'s language of 'congenital or acquired condition, disease or disorder' is not limited to solely sexual disorders" (Anthony N. at 743). The Court also specifically rejected respondent's contention that the Donald DD. rationale — that ASPD, along with evidence of sexual crimes, cannot by itself be used to support a finding of mental abnormality — should likewise apply to a diagnosis of borderline personality disorder (Id. at 743-744). The Court rejected this rationale because the State had "presented legally sufficient evidence to link respondent's diagnosis of borderline personality disorder to a predisposition to commit sex offenses" and did not prove only a "general tendency to commit crimes" which was the basis of the Court's rejection of ASPD in Donald DD. (Id. at 744).

In Richard TT., the State's expert acknowledged that respondent's diagnoses, ASPD with psychopathy and borderline personality disorder, "do not by themselves, indicate that a person is predisposed to committing sexual offenses" (Richard TT. at 746). However, the expert testified that the "ASPD, borderline personality disorder and psychopathy conditions, in combination, established that respondent has a 'congenital or acquired disease, condition or disorder'" that "affect respondent's cognitive or volitional capacity and 'predispose' him to commit sex offenses" (Id. at 747) (emphasis in the original). In upholding the sufficiency of the evidence, the Court "decline[d] respondent's invitation to consider the ASPD and borderline personality disorder diagnoses in isolation" finding instead that the State expert "did not simply rely on one diagnosis in establishing sexual abnormality. She considered a number of particular disorders and testified how those disorders, in combination, predisposed respondent to the commission of conduct constituting sex offense, resulting in his having 'serious difficulty in controlling such conduct'" (Id. at 751-752). The Court accepted, as legally sufficient, the expert's testimony that the combination of these three disorders created a "'personality structure' that disregards the wants and needs of other people" and "affect respondent's impulse control, emotions, cognitions and interpersonal relationships and they manifest themselves in his commission of sex offenses" (Id. at 750).

Subsequent to Donald DD, there have been a number of appellate division cases addressing [*4]the issue of what conditions, diseases or diagnoses, in addition to ASPD, are legally sufficient to support a finding of mental abnormality. Most on point is the case of Matter of the State of New York v. Jerome A., 137 AD3d 557 (1st Dept. 2016). In Jerome A., the First Department reversed the trial court's dismissal of the petition after a probable cause hearing where the diagnoses presented by the State were ASPD and psychopathy. The First Department noted that the Supreme Court erred in finding that the State failed to meet its probable cause burden.

[I]n article 10 proceedings, issues concerning the viability and reliability of the respondent's diagnosis are properly reserved for resolution by the jury (Matter of State of New York v Floyd Y., 135 AD3d 70, 72-73, 19 NYS3d 52 [1st Dept 2015]), unless the respondent's evidence is deficient (see e.g. Matter of State of New York v Donald DD., 24 NY3d 174, 188-191, 996 NYS2d 610, 21 NE3d 239 [2014] [evidence that a respondent suffers from antisocial personality disorder and has committed sex crimes cannot, without evidence of some independent mental abnormality diagnosis, be used to support a finding that the respondent has a mental abnormality]). Here, the State expert opined that respondent suffers from a mental abnormality within the meaning of the Mental Hygiene Law based on a diagnosis of antisocial personality disorder (ASPD) with psychopathy. Although the factfinder at trial may or may not accept the expert's opinion, the expert's testimony at the hearing was not so deficient as to warrant dismissal of the petition at this early juncture, especially since the expert offered extensive testimony regarding the distinctions between ASPD and psychopathy, and since the Court of Appeals in Donald DD. did not state that a diagnosis of ASPD with psychopathy is insufficient to support a finding of mental abnormality (see 24 NY3d at 189-191). Matter of the State of New York v. Jerome A., 137 AD3d 557 (1st Dept. 2016).

The First Department revisited this same issue after the Court of Appeals' holding in Dennis K. in the Matter of State of New York v Richard L., 143 AD3d 519 (2016) where the Court, citing both Dennis K. and its prior decision in Jerome A., determined that the trial court improperly dismissed a petition on summary judgement prior to a probable cause hearing when the petition alleged "a mental abnormality based on a composite diagnosis of antisocial personality disorder, substance-use disorders, psychopathy and sexual preoccupation, and supported by expert evidence that is not patently deficient, is facially valid and not subject to dismissal prior to a probable cause hearing. Although the court at a probable cause hearing or the factfinder at trial may or may not be convinced by the expert evidence, the evidence was not so deficient as to warrant dismissal of the petition at this early juncture" (Matter of State of New York v Richard L., 143 AD3d 519 [2016]).

In Christopher PP., the respondent consented to a finding of mental abnormality and after a dispositional hearing was civilly confined (Matter of Christopher PP. v State of New York, 151 AD3d 1334 [3rd Dept. 2017]). After the Donald DD. decision, respondent moved under CPLR § 5015 to vacate that judgement and to be released. Respondent argued that his diagnosis of ASPD, with the condition of sexual preoccupation, was insufficient for a mental abnormality finding. The Third Department affirmed the trial court's denial of relief finding that while sexual preoccupation is not in the DSM-V "respondent's psychologists characterized sexual preoccupation as a `condition' and opined that petitioner's ASPD diagnosis, when coupled with his sexual preoccupation, predisposes him to commit sex offenses (Matter of Christopher PP. at 1338; but see State v. Gen [*5]C., 128 AD3d 467 [1st Dept. 2015](ASPD and hypersexuality/sexual preoccupation not sufficient because hypersexuality is not a "independent mental abnormality diagnosis").

In Suggs v. New York State Office of Mental Health, 142 AD3d 1283 (4th Dept. 2016), the Court reversed the order granting the respondent's motion for a directed verdict during an annual review hearing. The Court held that the trial court had erred in determining that, because neither of respondent's diagnoses, ASPD and psychopathy, were sexual diagnoses, the petition must be dismissed under Donald DD.

Lastly, in the Matter of the State of New York v. Ezikiel R. 147 AD3d 959 (2017), the Second Department reversed the trial court's decision granting summary judgment before the probable cause hearing under Donald DD., where:

the petition alleges a mental abnormality based on a composite diagnosis of antisocial personality disorder and psychopathy, and is supported by expert evidence containing an additional diagnosis of conduct disorder, a provisional diagnosis of sexual sadism disorder, and a determination that Ezikiel R.'s actions were suggestive of his potential for deviant sexual behavior and/or sexual preoccupation. Ezikiel R. at 959.

Applying the legal precedent to the present facts, it is clear that the State has presented sufficient evidence to raise an issue of fact as to whether or not respondent's current constellation of diagnoses and conditions predispose him to commit sex offenses and result in him having serious difficulty controlling sex offending behavior.

Here, during the probable cause hearing, Dr. Miljus opined that respondent suffers from ASPD, stimulant abuse disorder severe in sustained remission in a controlled environment; cannabis use disorder, moderate, in sustained remission in a controlled environment (Tr. at 12). With regard to the ASPD diagnosis, Dr. Miljus testified that respondent meets all of the relevant criteria such as a failure to conform to social norms; deceitfulness, impulsivity, irritability and aggressiveness, reckless disregard for the safety of himself and others, a lack of remorse and evidence of conduct disorder prior to the age of 15 (Tr at 12-16). In addition to ASPD, Dr. Miljus testified that he scored the respondent a 26 on the PCL-R indicating that respondent has a high level of psychopathic traits (Tr at 35). Dr. Miljus testified to respondent's statements that his substance abuse - specifically cocaine and marijuana use - was directly related to his sex offending behavior (Tr at 17). Dr. Miljus indicated that as recently as 2010 and 2015 respondent received two Tier-3 tickets while in prison for synthetic cannabis - K-2. (Tr at 17, 32-33).

Respondent's qualifying offenses involve four separate victims ranging in age from 10 to 12 over the course of approximately one week. On September 5, 1987, at 9:45 am, he followed a ten- year-old victim into her apartment building, grabbed her by the neck and demanded that she go into his zipper. She struggled and was able to escape (Tr at 20-21). On the same date at 2:00 p.m., he followed a 19-year-old victim into an elevator, exposed his genitals and pushed himself up against her before she was able to escape (Tr at 21). The third sexual offense occurred two days later after the respondent followed a 12-year-old girl into a building and penetrated her at knifepoint. He also rubbed his penis against her body until he ejaculated. He grabbed her by the neck and held the knife to her throat and threatened to kill her when she attempted to escape. After sexually assaulting her, he asked for her name and phone number. She gave him a fake name and number and he left (Tr at 24). On September 12, 1987, respondent followed an 11-year-old girl into an elevator, produced [*6]knife, threatened to kill her and forced her to perform oral sex on him. He ejaculated in her mouth and fled. (Tr at 25).

Respondent told Dr. Miljus that he does not remember many of these events and in Dr. Miljus' opinion attempted to minimize the offenses. Dr. Miljus reported that respondent had stated on previous occasions that he believed that he hadn't harmed his victims because he hadn't raped them. He even stated that he believed that the acts were consensual (Tr at 16). Also noteworthy to Dr. Miljus were the two lewd conduct tickets respondent received while in prison, one in 1993 and the more recent on in 2009, involving exposing his penis and/or masturbating in front of female corrections officers (Tr at 32). Dr. Miljus opined that his sexual offenses and his lewd conduct tickets "represent a level of sexual preoccupation" (Tr at 27, 50).

While Dr. Miljus acknowledged that respondent has completed two sex offender treatment programs while incarcerated, one in 2001 and the other from July 2015 to August of 2016, Dr. Miljus opined that respondent, according to the treatment notes, still has problems with self-regulation, impulse control problems and difficulty regulating his emotions (Tr at 41-42). His lack of details and recall, his minimization and lack of acceptance of responsibility cause Dr. Miljus to believe that respondent has not processed these events completely through sex offender treatment and is, therefore, at a risk of reoffending (Tr at 27-28).

As to dynamic risk factors, Dr. Miljus listed the following: respondent's history of non-compliance with supervision; his association with "negative social influences;" the young age of his victims; his "sexual preoccupation and hypersexuality, as well as [his use of] sex as a coping mechanism;" his lack of emotional and intimate adult relationships; and his history of infidelity (Tr at 38-39). Another possible risk factor that Dr. Miljus considered was "deviant sexual interests" given the age of respondent's victims (Tr at 39). In fact, Dr. Miljus considered but did not assign the diagnosis of pedophilic disorder. He was unable to assign that diagnosis because, given that the offenses occurred within a one week period, he had insufficient evidence to support the criteria that respondent's urges or conduct last for a six month period (Tr at 81).

While not specifically raised by respondent, this Court notes that the fact that Dr. Miljus did not actually diagnose respondent with pedophilic disorder is not dispositive of this motion. As previously stated, the Shannon S. Court held that "the plain language of Mental Health Law § 10.03 (I), in defining a mental abnormality. . . does not reference or require that a diagnosis be limited to mental disorders enumerated within the DSM" (Matter of State of New York v Shannon S., 20 NY3d 99; 980 N.E.2d 510; 956 N.Y.S.2d 462; 2012 NY LEXIS 3264 [2012]). Since an opinion that a respondent suffers from an mental abnormality may include a diagnosis that is not specifically identified in the DSM, there is no legal reason to preclude a diagnosis or condition that was considered by an expert but not assigned or "ruled out" just because it does not meet all of the criteria of the diagnosis as stated in the DSM. To the extent that the consideration of this diagnosis helped form the basis of Dr. Miljus' opinion that respondent suffers from a mental abnormality, such evidence is relevant. Clearly, it is the generally accepted practice of mental health professionals to consider and document all potential diagnoses when completing a mental health evaluation. Any objection to this testimony is more properly a "weight of the evidence argument" rather than an admissibility argument.

Moreover, the DSM-V specifically provides for the use of a provisional diagnosis when there is a strong presumption that the full criteria will ultimately be met for a disorder but not enough [*7]information is available to make a firm diagnosis or when a differential diagnosis depends exclusively on the duration of illness (DSM-V at 23). Here, Dr. Miljus noted that he had insufficient information concerning the time frame of six months to make a complete diagnosis.

In addition to the Ezikiel R. opinion cited above, the Second Department has held in another case that a provisional diagnosis can form the basis of a conclusion that a respondent has a mental abnormality (Matter of State of New York v Derrick B., 68 AD3d 1124 (2d Dept 2009). In Derrick B., the expert examiners for both petitioner and respondent diagnosed respondent with diagnosis of a "cognitive disorder, not otherwise specified," a provisional diagnosis due to the fact that the examiners could not verify a reported childhood head injury. This provisional diagnosis formed the basis of State examiner's opinion that respondent suffered from a mental abnormality as defined by MHL §10.03 (I). The court held that the jury's verdict that respondent suffered from a mental abnormality was supported by a fair interpretation of the evidence.

While Dr. Miljus did not label his opinion as a provisional diagnosis, the Court does not believe that the label, whether it is "provisional" or a rule out diagnosis, or "considered but not assigned" has any import to the admissibility of the opinion. It is clear from the expert report that the behaviors and the conduct of respondent considered by the expert were still instrumental in the ultimate conclusion that he has a mental abnormality and therefore, is being considered by this Court in denying the motion for summary judgment.

Conclusion

Respondent's motion for summary judgment is denied.

This constitutes the Decision and Order of the Court.

October 6, 2017

DINEEN ANN RIVIEZZO, J.S.C.

diagnoses of ASPD, stimulant use and cannibis use disorder